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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


ft 


selectio:n'  of   cases 


ON   SALES    OF 


PERSONAL    PROPERTY. 


UnAc^c^o.         ^Vvntl„Ae.r   ^o\A«<^b-*^ 


SELECTION    OF    CASES 


ON   SALES   OF 


PERSONAL    PROPERTY, 


WITH   REFERENCES  AND   CITATIONS. 


By   C.  C.  LxlNGDELL, 

DANE    PEOFESSOK    OP    LAW    IN    HAKVAKD    UNIVEESITY. 


PREPARED    FOR     USE    AS    A     TEXT-BOOK    IN    HARVARD     LAW 

SCHOOL. 


"  It  is  ever  good  to  rely  upon  the  book  at  large,  for  many  times   eoynpendia  sunt 
dispendia,  and  7nelius  est  petere  fontes  guatn  sectari  rivulos.''''  —  Co.  Litt.  305  b. 

•'The  advised  and  orderly  reading  over  of  the  books  at  large,  I  absolutely   determine 
to  be  the  right  way  to  enduring  and  perfect  knowledge."  —  Pref.  to  4  Rep. 


VOL.  L 

BOSTON: 

LITTLE,     BROWN,     AND      COMPANY.    , 

1872. 


T 


Entered  according  to  Act  of  Congress,  in  the  year  1871,  by 

C.    C.    LANGDELI., 

In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


c<7 


4 

CAMBRIDGE: 
PKESS  OF  JOHN   WILSON   AND    SON. 


The  topics  embraced  in  this  volume  are  the  same  that  are 
treated  of  in  the  first  and  second  parts  of  Blackburn  on  Sale,  and 
in  the  second  book  and  the  second  part  of  the  first  book  of  Ben- 
jamin on  Sale. 

Before  proceeding  further  with  the  subject  of  Sales,  it  is  my 
intention  to  bring  out  a  second  volume  of  Select  Cases  on 
Contracts. 


C.  C.  LANGDELL. 

Cambridge,  May  15,  1872. 


CONTENTS. 


CHAPTER  I. 

Page 

Statute  of  Frauds 1 


Section  I. 
"Contract  for  the  Sale  of" 1 

Section  II. 
"  Goods,  Wares,  and  Merchandises  " 42 

Section  m. 
"  For  the  Price  of  Ten  Pounds  Sterling  or  upwards  "     ....       85 

Section  IV. 

"  Except  the  Buyer  shall  accept  Part  of  the  Goods  so  sold,  and 

actually  receive  the  same " 95 

Section  V. 

"  Give  Something  in  Earnest  to  bind  the  Bargain  or  in  Part  of 

Payment" 326 

Section  VI. 


"  Or  that  some  Note  or  Memorandum  in  Writing  of  the  said  Bar- 
gain he  made  and  signed  by  the  Parties  to  be  charged  by 
such  Contract,  or  their  Agents  thereunto  lawfully  author- 
ized"   337 


Viii  CONTENTS. 

CHAPTER  II. 

Page 

Executory  and  Executed  Sales 621 

Section  I. 

Unconditional  Sales  of  Specific  Goods  to  which  Nothing  remains 

to  be  done 621 

Section  II. 
Sales  of  Specific  Goods  to  which  Something  remains  to  be  done .     639 

Section  III. 

Sales  of  Specific  Goods,  conditional  upon  paying  or  securing  the 

Price 710 

Section  TV. 
Sales  of  Goods  not  specified 734 

Section  V. 
Specification  of  the  Goods  by  Subsequent  Appropriation    .     .     .     792 

Section  VI. 
Appropriation,  conditional  upon  paying  or  securing  the  Price      .     911 


TABLE    OF    CASES. 


A. 

Acebal  v.  Levy 
Acraman  v.  Morrice 
Alilridge  v.  Johnson 
Alexander  v.  Comber 
Alexander  v.  Gardner 
Allen  V.  Bennet 
Anderson  v.  Scot 
Andrews  v.  Durant 
Anonymous 
Archer  v.  Baynes 
Artcher  v.  Zeh 
Ashcroft  V.  Morrin 
Astey  V.  Emery 
Atkinson  v.  Bell 
Austen  v.  Craven 

B. 

Bailey  v.  Ogden 
Bailey  v.  Sweeting 
Baines  v.  Jevons 
Baldey  v.  Parker 
Baldwin  v.  Williams 
Ballard  v.  Burgett 
Battersby  i".  Gale 
Beaumont  v.  Brengeri 
Benient  v.  Smith 
Bennett  v.  Hull 
Bentall  r.  Burn 
Bigg  V.  Whisking 
Bill  V.  Bament 
Bird  V.  Boulter 
Bishop  V.  Shillito 
Blenkinsop  i'.  Clayton 
Boanlman  v.  Spooner 
Brandt  v.  Bowlby 
Browne  v.  Hare 
Basliel  V.  Wheeler 
Busk  V.  Uavis 
Bussey  v.  Barnett 


c. 


588,  n. 


821,  n. 


Page 

Page 

399 

Campbell  r.  The   Mersey 

Docks, 

676 

&c. 

873 

859 

Carter  v.  Toussaint 

126 

3 

Castle  V.  Sworder 

257 

810 

Champion  v.  Plummer 

343 

350 

Chaplin  v.  Rogers 

97 

101 

Clark  V.  Mumford 

8 

894 

Clarke  v.  Spence 

816 

42 

Clason  V.  Bailey 

541 

449 

Clay  V.  Yates 

15 

330 

Clayton  v.  Andrews 

9 

440 

Coddington  v.  Goddard 

614 

114 

Coggill  V.  Hartford  &  New  Haven 

801 

R.  R.  Co. 

713 

741 

Coleman  v.  Gibson 

141 

Coombs  V.  The  Bristol  & 

Exeter 

Railway  Co. 

242 

Cooper  V.  Elston 

6 

Cooper  V.  Smith 

355 

0) 

Coxe  r.  Harden 

916 

480 

Crofoot  V.  Bennett 

772 

144 

Crookshank  v.  Burrell 

32 

85 

Cuir  V.  Penn 

358 

82 

Gumming  v.  Roebuck 

366,  n.  (1) 

730 

Cummings  v.  Arnold 

575 

(-^) 

CuniifFe  v.  Harrison 

844 

185 

Currie  v.  Anderson 

252 

889 

Curtis  V.  Pugh 

183 

31 

Cusack  V.  Robinson 

266 

132 

Gushing  V.  Breed 

788 

212 

161 

395 

D. 

710 

117 

Davis  V.  Shields 

558 

610 

Dickenson  i'.  Lilwal 

366 

925 

Dodsley  v.  Varlcy 

155 

976 

Downer  r.  Tliompson 

893 

168 

Downs  V.  Ross 

34 

747 

Dunne  v.  Ferguson 

73 

711 

Durrell  v.  Evans 

494 

TABLE  OF  CASES. 


E. 

Edan  v.  Dudfield 
Edgerton  v.  Hodge 
Egerton  v.  Matbews 
Eichelberger  v.  M'Cauley 
EUershaw  v.  Magniac 
Elliott  V.  Pybus 
Elliott  V.  Thomas 
Elmore  v.  Kingscote 
Elmore  v.  Stone 
Evans  v.  Roberts 


F. 


157 
333 
342 

39 
835 
806 
145 
378 
111 

46 


Falke  v.  Fletcher 

990 

Farebrother  v.  Simmons 

370 

Farina  v.  Home 

180 

Farlow  v.  Ellis 

720 

Farmer  v.  Robinson 

349,  n 

(1) 

Fragano  v.  Long 

798 

Frostl)urg  Mining  Co. 

V. 

Ne 

wEng- 

land  Glass  Co. 

304 

G. 

Garbutt  V.  Watson 
Gardner  v.  Grout 
Gardner  v.  Joy 
Gibson  v.  Holland 
Gillett  V.  Hill 
Giimour  v.  Supple 
Godts  V.  Rose 
Goodman  ii.  Griffiths 
Goom  V.  Aflalo 
Grafton  v,  Armitage 
Graham  v.  Fretwell 
Graham  v.  Musson 
Grant  v.  Fletcher 
Groves  v.  Buck 


H. 

Hanson  v.  Armitage 
Hanson  v.  Meyer 
Hannan  v.  Reeve 
Hart  V.  Bush 
Hart  V.  Sattley 
Hawes  v.  Forster 
Hawes  v.  Watson 
Hawkins  v.  Chace 
Henderson  v.  Barnewall 
Hey  man  v.  Neale 
Hiiide  V.  Whitehouse 
Hoadly  v.  M'Laine 
Hodgson  V.  Le  Bret 


10 
237 

29 
513 
755 
624 
970 
478 
379 

11 

433 

425 

377 

9 


125 
639 

90 
239 
113 
410 
656 
554 
384 
348 
102 
405 
110 


Holmes  v.  Hoskins 
Howe  V.  Palmer 
Humble  v.  Mitchell 
Hunt  V.  Hecht 


Jackson  v.  Lowe 
Jacob  V.  Kirk 
Jenkyns  v.  Brown 
Jenner  v.  Smith 
Johnson  v.  Dodgson 
Johnson  v.  Hunt 
Jones  V.  Flint 


K. 

Kent  V.  Huskinson 
Kenworthy  v.  Schofield 
Kershaw  v.  Ogden 
Key  V.  Cotesworth 
Kimberly  v.  Patchin 
Kliuitz  r.  Surry 
Knights  V.  Wiffen 


Laidler  v.  Burlinson 
Langton  v.  Higgins 
Lee  V.  Griffin 
Lerned  v.  Wannemacher 
Lillywhite  v.  Devereux 
Loiian  V.  Le  Mesurier 


M. 

IMaberley  v.  Sheppard 
Maclean  v.  Dunn 
Marsh  v.  Hyde 
Marshall  v.  Lynn 
Marvin  v.  Wallis 
MoKnight  v.  Dunlop 
M'Lean  v.  Nicoll 
Meredith  v.  Meigh 
Merritt  v.  Clason 
Merritt  v.  Johnson 
Mews  V.  Carr 
Mills  V.  Hunt 
Mixer  v.  Howarth 
Moakes  v.  Nicholson 
Moody  V.  Brown 
Moore  v.  Campbell 
Morton  V.  Til)l)ett 
Mucklow  V.  Mangles 


215 

118 

70 

208 


371 
424 
948 
877 
413 
885 
66 


99 
373 
700 
963 
775 
345 
766 


664 
867 
20 
699 
175 
681 


142 
390 
313 

429 

228 
308 
487 
203 
537 
883 
475 
285 
25 
992 
909 
4(>5 
195 
792 


TABLE   OF   CASES. 


XI 


Newell  V.  Radford 
Nifholle  v.  Plume 
Nicholson  V.  Bower 
Nol)le  V.  Ward 
Norman  v.  Phillips 


o. 


Ogle  V.  Atkinson 
Olyphant  v.  Baker 


Parker  v.  Staniland 
Parker  v.  Wallis 
Parton  v.  Crofts 
Peltier  v.  Collins 
Phillimore  v.  Barry 
Phillips  v.  BistoUi 
Pitts  V.  Beckett 
Price  V.  Lea 
Proctor  V.  Jones 


R. 

Rayner  v.  Linthorne 
Riciiards  v.  Porter 
Rodgers  v.  Phillips 
Rohde  V.  Thwaites 
Rondeau  v.  W}att 
Rowe  V.  Osborne 
Rucker  i\  ( 'ammeyer 
Rugg  V.  Minett 


S. 


Sainsbury  v.  INIatthews 

Salmon  Falls  Manuf.  Co.  v.  God- 
da  rd 

Sanborn  v.  Flagler 

Sari  V.  Bourdillon 

Saunders  v.  Topp 

Saunderson  v.  Jackson 

Schneider  v.  Norris 

Scott  V.  The  Eastern  Counties  Rail- 
way Co. 

Scudder  v.  Worster 

Searle  v.  Keeves 

Sewall  V.  Fitch 

Seymour  v.  Davis 

Shepherd  v.  Harrison 

Shepley  V.  Davis 

Shindler  v.  Houston 


534 
131 
248 
620 
171 


922 
635 


42 

218 
508 
548 
346 
134 
443 
129 
136 


376 
383 
316 
138 
3 
367 
339 
647 


64 

583 
604 
472 
190 
340 
362 

164 
783 
95 
33 
299 
996 
752 
290 


Sievewright  v.  Archibald 
Simmonds  v.  Humble 
Simmons  v.  Swift 
Simon  v.  Metivier 
Smith  v.  Hudson 
Smith  V.  Lyncs 
Smith  V.  Surman 
Soames  v.  Spencer 
Spencer  tv  Cone 
Stead  V.  lAwber 
Stonard  v.  Dunkin 
Suydani  v.  Clark 
Swain  v.  Shepherd 
Swanwick  v.  Sothern 


T. 


452 
272 
659 
337 
275 
724 

54 
368 

29 
418 
653 
581 
805 
673 


Talver  v.  West 

116 

Tarling  v.  Baxter 

621 

Taylor  v.  Wakefield 

234 

Tempest  v.  Fitzgerald 

121 

Terr}'  v.  Wheeler 

706 

Thompson  v.  Alger 

326,  n.  (1) 

Thompson  v.  Maceroni 

131 

Thornton  v.  Charles 

436 

Thornton  v.  Kempster 

364 

Tliornton  v.  Meux 

382 

Tisdale  i'.  Harris 

75 

Tomkinson  i\  Staight 

223 

Towers  v.  Osborne 

1 

Townend  v.  Drakeford 

441 

Tripp  V.  Armitage 

829 

Turley  v.  Bates 

692 

Turner  v.    Trustees  of 

Liverpool 

Docks 

952 

Tyler  v.  Freeman 

712 

Vandenbergh  r.  Spooner 
Vincent  v.  Germond 


w. 

Wait  V.  Baker 
Wait  V.  Green 
Walker  v.  Nussey 
Wallace  v.  Breeds 
Walley  r.  Montgomery 
Ward  V.  Shaw 
Warwick  v.  Bruce 
Watts  r.  Ains worth 
Watts  V.  Friend 
White  V.  Wilks 
Wliitehouse  i\  Frost 
AAhitmarsh  v.  Walker 


531 
284 


942 

728 
326 
739 
911 
703 

45 
489 

63 
744 
734 

80 


xn 


TABLE   OF   CASES. 


Whitney,  v.  Eaton 
Whittier  v.  Dana 
Wilkins  v.  Bromhead 
Wilkinson  v.  Evans 
Williams  v.  Bacon 
Williams  v.  Burgess 
Williams  v-  Jackman 
Wilmshurst  v.  Bowker 
Withers  v.  Lyss 
Wood  V.  Bell 
Woodley  v.  Coventry 
Woods  V.  Russell 


/ 


717 

608 

838 

528 

594 

151 

906 

930 

654 

847 

760 

794 


Wright  V.  Dannah 
Wright  V.  Percival 


Y. 


Young  V.  Matthews 


Zagury  v.  Furnell 


348 
153 


875 


652 


SELECT   CASES    ON    SALES. 


157 


CHAPTER   I. 

STATUTE    OF    FRAUDS. 
[29  Car.  II.  c.  3,  §  17.] 

"And  be  it  further  enacted  by  the  authority  aforesaid,  That  from  and  after  the  said 
four  and  twentieth  day  of  June  [a.  d.  1677]  no  contract  for  tlie  sale  of  any  goods, 
wares,  and  merchandises,  for  the  price  of  ten  pounds  sterhng  or  upwards,  shall  be 
allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actu- 
ally receive  the  same,  or  give  something  in  earnest  to  bind  the  bargain  or  in  part  of 
payment,  or  that  some  note  or  memorandum  in  writing  of  the  said  bargain  be  made 
and  signed  by  the  parties  to  be  charged  by  such  contract,  or  their  agents  thereunto 
lawfully  authorized." 


SECTION  I. 

"  Contract  for  the  Sale  ofT 

TOWERS  V.  SIR  JOHN  OSBORNE. 
At  Guildhall,  coram  Pratt,  C.  J.,  1722. 

[Reported  in  1  Strange,  506.] 

The  defendant  iDespol^e  a  cliariot,  and  wlien  it  was  made  refused  to 
talce  it ;  and  in  an  action  for  the  value  it  was  objected  that  tliey  should 
l)rove  something  given  in  earnest,  or  a  note  in  writing,  since  there  was 
no  deUvery  of  any  part  of  the  goods.  But  the  Chief  Justice  ruled 
this  not  to  be  a  case  within  the  Statute  of  Frauds,  which  relates  only 
to  contracts  for  the  actual  sale  of  goods,  where  the  buyer  is  immedi- 
ately answerable  without  time  given  him  by  special  agreement,  and 
the  seller  is  to  deliver  the  goods  immediately. 

VOL.   I.  1 


CLAYTON  V.    ANDREWS.  [CHAP.  I. 

CLAYTON"  THE   Younger  v.   ANDREWS. 
In  the  King's  Bench,  June  23,  1767. 

[Reported  in  4  Burrow,  2101.] 

Assumpsit,  for  non-jierformance  of  a  contract  for  sale  of  corn. 
JVbn  assum2:)sU  pleaded.  On  a  trial  at  Sussex  assizes  a  verdict  was 
found  for  the  plaintiff;  subject  to  the  opinion  of  this  court  u^ion  the 
following  case  and  question :  — 

The  defendant,  on  13th  October,  1776,  agreed  to  deliver  one  load 
and  a  half  of  wheat  to  the  j^laintiff,  "vrithin  three  weeks  or  a  month 
from  the  said  agreement,  at  the  rate  of  twelve  guineas  a  load,  to  be 
paid  on  deUvery :  which  wheat  was  understood  by  both  jaarties  to  be 
at  that  time  unthrashed.  No  part  of  the  said  wheat  so  sold  was  deliv- 
ered ;  nor  any  money  paid  by  way  of  earnest  for  the  same ;  nor  any 
memorandum  thereof  made  in  writing.  And  "Whether  this  agree- 
ment be  within  the  Statute  of  Frauds,"  is  the  question.^  .  .  . 

[Mr.  Baron  Smythe,  who  tried  the  cause,  thought  this  case  to  be 
like  that  of  Towers  v.  Sir  John  Osborne  in  1  Strange,  506.]  Lord 
Mansfield  directed  the  counsel  for  the  defendant  to  begin. 

Mr.  JBurrell,  for  the  defendant,  having  finished  what  he  had  to  say, 

Mr.  Harvey  was  beginnmg  for  the  plaintiff,  when 

Lord  Mansfield  stopped  him,  saying  the  case  was  clear :  that  case 
in  1  Str.  506,  of  Towers  v.  Sir  John  Osborne,  Hil.  8  G.  1,  at  Guildhall, 
before  Pratt,  Chief  Justice,  is  directly  in  point.  There,  the  defendant 
bespoke  a  chariot ;  and  when  it  was  made,  refused  to  take  it.  And  in 
an  action  for  the  value  it  was  objected  that  they  should  prove  some- 
thing given  in  earnest,  or  a  note  in  writing,  since  there  was  no 
delivery  of  any  part  of  the  goods.  But  the  Chief  Justice  ruled  it  not 
to  be  a  case  within  the  Statute  of  Frauds ;  Tvhich  relates  only  to  con- 
tracts for  the  actual  sale  of  goods,  where  the  buyer  is  immediately 
answerable  without  time  given  him  by  special  agreement,  and  the 
seller  is  to  deliver  the  goods  immediately.  ' '  '  '•'^•♦-^•^-^■" 

Mr.  Justice  Yates.  That  clause  of  the  statute  relates  only  to 
executed  contracts.  Here,  wheat  was  sold,  to  be  delivered  at  a  future 
time.  It  was  unthrashed  at  the  time  when  the  contract  was  made : 
therefore  it  could  not  be  delivered  at  that  time.  The  case  mentioned 
out  of  Sir  John  Strange  is  in  point. 

Mr.  Justice  Aston  concurred,  and  added  that  the  case  in  1  Str. 
506  has  always  been  considered  as  an  authority  in  point  upon  ques- 
tions of  this  kind. 

Per  Curiam,  unanimously,  ordered  that  the  postea  be  delivered  to 
the  plaintiff  or  his  attorney. 

1  The  reporter  here  quotes  the  17th  section  of  the  statute.  —  Ed. 


SECT.    I.]  RONDEAU   V.   WYATT.  3 

ALEXANDER  v.  COMBEK. 
In  the  Common  Pleas,  Trinity  Term,  1788. 

[Repmtcd  in  1  Ileiui/  Blackstone,  20.] 

Trover  for  sheep.  Tried  before  Mr.  Justice  Grose  at  the  last 
assizes  at  East  Grinstcad.  It  appeared  that  the  plaintiff  had  agreed  to 
buy  the  sheep  of  the  defendant  at  Lewes  fair,  and  to  take  them  away 
at  a  certain  hour.  There  was  no  money  paid,  nor  any  sheep  delivered. 
The  plaintiff  not  coming  at  the  appointed  time,  nor  sending  to  take  the 
sheep,  the  defendant  sold  them  to  another  person.  Verdict  for  the 
plaintiff. 

A  rule  having  been  obtained  to  shew  cause  why  the  verdict  should 
not  be  set  aside  and  a  nonsuit  entered. 

Bond,  Serjt.,  argued  against  the  rule  that,  as  the  sheep  were  sold  to 
the  plaintiff,  there  was  a  sufficient  property  in  him  to  maintain  the 
action ;  and  as  they  were  resold  by  the  defendant,  a  sufficient  conver- 
sion on  his  part. 

But  the  Court  held  that  the  Statute  of  Frauds  prevented  any  prop- 
erty from  vesting  in  the  jilaintiff  so  as  to  enable  him  to  maintain  trover, 
there  being  neither  earnest,  delivery,  nor  agreement  in  writing.  "^"""'^ 

Wilson,  J.,  observed  that,  where  a  sale  is  not  immediate,  it  is  not 
within  the  Statute  of  Frauds,  such  as  a  contract  to  purchase  a  carriage 
when  it  shall  be  built,  and  the  like.  Bule  absolute. 


RONDEAU  V.  WYATT 
1    !V    fs/l/^^  "^^^  Common  Pleas,  June  27,  1702. 

*  [Reported  in  2  Henry  Blackstone,  63.^ 

"1}''' 

This  was  an  action  on  the  case  for  the  non-performance  of  a  special 

agreement.-^ 

At  the  trial,  which  came  on  before  Lord  Loughborough  at  Guildhall, 
at  the  sittings  after  last  Michaelmas  term,  it  appeared  that  tlie  defend- 
ant, who  was  one  of  the  proprietors  of  the  Albion  Mill,  had  entered 
into  a  verbal  ao-reement  to  sell  and  deliver  three  tliousand  sacks  of 
flour  to  the  plaintiff,  to  be  put  in  sacks  which  the  jtlaintiff  was  to  send 

1  The  report  of  this  case  has  been  modified  by  the  omission  of  irrelevant  mat- 
ter. —  Ed. 


4  RONDEAU   V.   WYATT.  [CHAP.    I. 

to  the  mill,  and  shipped  on  board  vessels  to  be  provided  by  him  in  the 
river  Thames. 

The  defendant  having  refused  to  perform  the  contract,  the  plaintiff 
filed  a  bill  in  chancery  for  a  discovery  in  aid  of  an  action  at  law.  In 
his  answer  to  the  bill  the  defendant  admitted  the  agreement,  but 
pleaded  the  Statute  of  Frauds.  That  plea  being  overruled,  the  present 
action  was  brought,  in  which  the  plaintiff  obtained  a  verdict  contrary 
to  the  opinion  of  Lord  Loughborough,  who  thought,  because  the  con- 
tract seemed  to  him  to  be  within  the  Statute  of  Frauds,  the  plaintiff 
was  not  entitled  to  recover.  And  now,  a  rule  having  been  granted  to 
shew  cause  why  the  verdict  should  not  be  set  aside  and  a  nonsuit 
entered, 

Adair  and  Bond^  Serjts.,  shewed  cause,  contending  that  the  con- 
tract did  not  come  within  the  Statute  of  Frauds,  because  it  was 
executory.  The  agreement  being  to  deliver  the  flour  on  board  some 
ships  in  the  river,  it  could  not  be  performed  till  the  time  and  place  of 
delivery  were  fixed;  it  was  therefore  clearly  executory,  and  being 
executory  it  was  not  within  the  statute,  according  to  a  series  of  author- 
ities. Simon  v.  Metivier,  3  Burr.  1921,  1  Black.  599,  Bull.  N.  P.  280 ; 
Towers  v.  Osborne,  1  Stra.  506 ;  Clayton  v.  Andrews,  4  Bm-r.  2101 ; 
Alexander  v.  Comber,  1  H.  Bl.  20. 

Laxcrence  and  Marshall,  Serjts.,  in  support  of  the  rule.  Though  by 
the  terms  of  the  agreement  the  flour  was  to  be  delivered  on  the  river, 
yet  it  was  not  necessarily  executory,  for  the  delivery  might  have  been 
immediate  if  the  ships  had  been  ready.  But  admitting  that  the  deliv- 
ery was  to  be  at  a  future  period,  the  contract  was  not  on  that  account 
without  the  statute,  the  words  of  which  are  fully  sufiicient  to  compre- 
hend it.  There  can  be  no  good  reason  why  the  future  delivery  of 
goods  should  i^revent  the  operation  of  the  statute ;  on  the  contrary, 
there  is  much  more  danger  of  perjury  being  committed  and  mistakes 
happening,  where  a  verbal  agreement  is  not  to  be  executed  till  a  dis-  ' 
tant  pei'iod,  than  where  it  is  to  be  completed  as  soon  as  it  is  entered 
into.  With  respect  to  the  case  of  Towers  v.  Osborne,  there  was  some- 
thing in  the  contract  besides  the  mere  sale  of  goods,  namely,  the  work 
and  labor  of  making  the  chariot;  but  at  best  it  is  a,  loose  note  of  a 
decision  at  nisi  ^yrius,  and  on  that  case  the  opinion  of  the  court  in 
Clayton  v.  Andrews  was  founded,  as  also  in  Alexander  v.  Comber.  As 
to  Simon  v.  Metivier,  the  principle  of  that  case  was  that  the  auctioneer 
was  the  agent  of  both  the  buyer  and  seller.  And  when  the  present 
case  came  before  Lord  Thurlow  in  chancery,  his  Lordship  said,  "  I 
should  have  thought  that  the  mere  fact  of  the  corn  not  being  to  be 
delivered  immediately  would  not  have  taken  it  out  of  the  statute ; " 
and  afterwards,  "  I  do  not  go  upon  its  being  out  of  the  statute ;  but  if 
it  is  a  measuring  cast,  and  upon  cases  at  law  (which  must  stand  till  they 
are  revised  by  a  court  of  law)  it  is  held  to  be  out  of  the  statute,  I 


SECT.    I.]  RONDEAU   V.    WYATT.  5 

cannot,  sitting  in  a  court  of  equity,  say  that  the  cases  are  improperly 

settled  at  law."    3  Brown's  Cas.  in  Chan.  155.    It  is  plain  therefore  that 

his  Lordship  doubted  the  validity  of  those  cases. 

Cz(r.  advis.  vult. 

On  this  day  Lord  Loughbokough,  after  stating  the  facts  of  the 
case,  pronounced  the  judgment  of  the  court  ^  to  the  follo^nng  effect :  — 

The  only  point  to  be  decided  is  that  which  arises  on  the  Statute  of 
Frauds;  and  we  M'ho  are  now  in  court  think  that  the  objection  made 
on  that  statute  is  well  grounded,  and  therefore  that  the  i»laintiff  ought 
to  be  nonsuited.     It  was  sai      \  the  argument  that  the  statute  does  not 
extend  to  cases  of  executory  contracts.     To  try  the  validity  of  this 
objection,  it  will  be  necessary  to  advert  to  that  clause  ^  of  the  statute 
on  which  the  question  arises  and  which  directs  [quoting  it].    Now  it 
is  singular  that  an  idea  could  ever  prevail  that  this  section  of  the 
statute  was  only  applicable  to  cases  Avhere  the  bargain  was  immediate  ; 
for  it  seems  plain  from  the  words  made  use  of  that  it  was  meant  to 
regulate  executory  as  well  as  other  contracts.     The  words  are,  "  No 
contract  for  the  sale  of  any  goods,"  &c.     And  indeed  it  seems  that 
this  provision  of  the  statute  would  not  be  of  much  use,  unless  it  were 
to  extend  to  executory  contracts ;  for  it  is  from  bargains  to  be  com- 
pleted at  a  future  period  that  the  uncertainty  and  confusion  Avill  prob- 
ably arise  which  the  statute  was  designed  to  prevent.     The  case  of 
Simon  v.  Meti\'ier  was  decided  on  the  ground  that  the  auctioneer  was 
the  agent  as  well  for  the  defendant  as  the  plaintiff;  and  therefore  that 
the  contract  was  sufficiently  reduced  into  writing.     The  case  of  Towers 
V.  Sir  John  Osborne  Avas  plainly  out  of  the  statute,  not  because  it  was 
an  executory  contract,  as  it  has  been  said,  but  because  it  Avas  for  work 
and  labor  to  be  done,  and  materials  and  other  necessary  things  to  be 
found,  which  is  different  from  a  mere  contract  of  sale,  to  which  species 
of  contract  alone  the  statute  is  applicable.    In  Clayton  v.  Andrews, 
which  was  on  an  agreement  to  deliver  corn  at  a  future  period,  there 
was  also  some  work  to  be  performed,  for  it  was  necessary  that  the  corn 
should  be  thrashed  before  the  delivery.     This  perhaps  may  seem  to  be 
a  very  nice  distinction,  but  still  the  work  to  be  performed  in  thrashing 
made,  though  in  a  small  degree,  a  part  of  the  contract. 

Eule  absolute  to  enter  a  oionsuit. 

1  In  which  his  Lordship,  Mr.  Justice  Gould,  and  Mr.  Justice  Heath  were  unanimous. 
But  his  Lordship  mentioned  a  few  days  before  that  Mr.  Justice  Wilson,  who  was  now 
sitting  in  chancery  as  one  of  tlie  lords  commissioners  of  the  great  seal,  had  declared 
himself  to  be  of  a  different  opinion. 

2  Sect.  17. 


COOPER  V.    ELSTON.  [CHAP.  I. 


COOPER  V.  ELSTOK 

In  the  King's  Bench,  November  15, 1796. 

[Reported  in  7  Term  Reports,  14.] 

This  action,  which  was  tried  before  .Mr.  Justice  Rooke  at  the 
assizes  at  Nottingham,  was  brought  to  recover  the  damages  sustained 
by  the  j^laintiff  in  consequence  of  the  defendant's  not  delivering  fifty 
quarters  of  wheat  pursuant  to  his  contract  with  the  i)laintiiF.  The  jury 
found  a  verdict  for  the  phiintiff,  damages  £50,  subject  to  the  opinion  of 
this  court  on  the  follomng  case :  — 

The  defendant  on  the  4th  of  July,  1795,  at  Nottingham,  sold  to  the 
plaintiff  by  samj^le  fifty  quarters  of  wheat  at  four  guineas  per  quarter ; 
the  wheat  to  be  delivered  by  the  defendant  to  the  plaintiff  at  Gains- 
borough. Two  days  afterwards  the  defendant  delivered  to  the  plaintiff 
at  Nottingham  the  sample  by  which  he  had  sold  the  wheat  to  him ; 
but  such  sample  was  no  part  of  the  fifty  quarters  to  be  delivered  at 
Gainsborough.  No  money  was  paid  by  the  plaintiff  to  the  defendant 
on  account  of  the  wheat ;  nor  was  there  any  memorandum  in  writing 
signed  by  the  parties.  The  defendant  afterwards  refused  to  dehver  the 
wheat. 

The  question  turned  on  the  17th  section  of  the  Statute  of  Frauds, 
29  Car.  2,  c.  3,  which  enacts  [stating  it]. 

Clarke,  for  the  plaintiff,  contended  that,  by  the  construction  put  upon 
the  above  clause  in  Towers  v.  Osborne  ^  and  in  Clayton  v.  Andrews,-  it 
is  confined  to  contracts  for  the  immediate  sale  and  delivery  of  goods, 
and  does  not  extend  to  _such  as  are  executory  or  to  be  performed  at 
some  future  period.  And  therefore  it  was  held  in  the  latter  of  these 
cases  that  an  agreement  to  deliver  so  much  wheat,  then  unthrashed, 
within  a  month,  to  be  paid  for  on  delivery  at  a  stipulated  jH'ice,  was 
not  within  the  act.  The  statute  was  meant  to  guard  against  frauds 
and  2)erjviries  by  setting  up  pretended  contracts  of  sale,  where  no  evi- 
dence of  notoriety  existed,  and  the  circumstances  of  the  case  justified 
a  suspicion  of  the  truth  of  it.  As  where  the  thing  supposed  to  be  sold 
was  ready  for  delivery  at  the  time,  and-  there  was  no  apparent  reason 
why  the  buyer  should  not  then  have  taken  it,  the  very  circumstance  of 
his  not  taking  it  or  any  jxirt  of  it,  or  not  gi^^ng  any  thing  in  earnest 
to  bind  the  bargain,  or  having  some  memorandxim  of  it  in  writing, 
afforded  a  presumption  against  the  existence  of  the  contract.  But 
upon  this  ground  executory  contracts  could  not  have  been  within  the 
contemplation  of  the  Legislature ;  because  the  non-execution  of  that 
which  the  parties  did  not  intend  to  execute,  and  could  not  have 
1  1  Stra.  506.  24  gurr.  2101. 


SECT.    I.]  COOPER    V.    ELSTON.  7 

executed  at  the  time,  cannot  warrant  such  a  presumption.  It  is  true 
that  a  contrary  rule  was  laid  down  in  a  late  case  of  Rondeau  r.  "Wyatt,^ 
in  the  court  of  C.  B.,  where  three  of  the  judges  against  one,  under 
somewhat  similar  circumstances  to  the  present,  held  that  there  was  no 
difference  between  contracts  executory  and  executed  as  to  the  opera- 
tion of  the  statute.  But  besides  that  that  determination  was  upon  the 
general  principle  contrary  to  the  current  of  authorities,  there  were  two 
circumstances  which  distinguish  it  from  the  present  case,  the  one,  that 
the  contract  there  was  founded  in  apparent  fraud,  and  an  illegal  com- 
bination between  the  parties  to  affect  the  price  of  the  corn  market,  in 
order  to  evade  the  law ;  the  other,  that  there  was  no  just  reason  why 
the  delivery  might  not  have  taken  place  at  the  time  of  the  contract. 
But  here  the  corn  being  sold  by  sample,  the  delivery  could  not  have 
taken  place  at  the  time,  and  therefore  it  does  not  come  within  the 
reason  of  the  statute,  the  requisites  of  which  could  not  in  this  view  of 
the  case  have  been  all  complied  with.  But  supposing  the  contract  not 
to  be  considered  as  executory  or  to  be  performed  in  future,  and  the 
sale  by  sample  to  be  the  same  as  an  immediate  sale  of  the  goods  them- 
selves if  they  had  been  on  the  spot,  then  as  the  buyer  was  necessarily 
entitled  to  the  sample,  it  may  be  considered  as  an  acceptance  by  him 
of  part  of  the  goods  sold ;  and  this  brings  the  case  within  one  of  the 
exceptions  of  the  act. 

/Sutton,  contra,  was  stopped  by  the  court. 

Lord  Keits-on,  C.  J.  After  this  question  has  been  afloat  so  long  in 
the  courts,  I  am  glad  that  by  the  very  able  decision  of  the  Court  of 
Common  Pleas,  in  the  case  of  Rondeau  v.  Wyatt,  the  construction  of 
this  clause  of  the  Statute  of  Frauds  is  brought  back  to  the  manifest 
intention  of  the  Legislature  in  making  that  provision.  To  the  authority 
of  that  case  I  entirely  subscribe,  and  in  my  opinion  it  governs  the  pres- 
ent. The  doctrine  which  was  laid  down  in  Clayton  v.  Andrews,  as  to 
executory  contracts  not  being  within  the  statute,  was  taken  from 
Towers  w.  Osborae.  I  will  not  pretend  to  say  that  those  cases  were  not 
rightly  decided  upon  their  particular  circumstances.  The  latter  was  a 
mere  contract  for  work  and  labor ;  the  thing  contracted  for  did  not 
exist  at  the  time.  In  the  former  also  something  was  required  to  be 
done  in  order  to  put  it  in  the  state  in  which  it  was  contracted  to  be 
sold.  But  at  any  rate  I  am  at  a  loss  to  discover  how  this  can  be  called 
an  executory  contract  for  the  sale  of  the  goods  in  question.  The  thing 
sold  existed'  ?«  solido  at  the  time  of  the  contract  of  sale.  I  am  not 
able  to  distinguish  this  case  from  that  of  Rondeau  v.  Wyatt ;  and  the 
grounds  and  principles  of  that  decision  are  so  amply  detailed  in  the 
report  of  it,  that  it  is  unnecessary  to  add  any  thing  more.  With  respect 
to  this  coming  Avithin  one  of  the  exceptions  of  tlie  statute  on  account 
of  the  acceptance  of  the  sample,  there  is  no  pretence  for  it ;  tor  the 

1  2  H.  Black.  Rep.  63. 


8-  CLARK   V.    MUMFORD.  [CHAP.    I. 

case  expressly  states  that  the  samiDle  was  no  jiart  of  the  goods  con- 
tracted to  be  delivered. 

AsHHURST,  J.,  was  of  the  same  opinion. 

Grose,  J.  The  case  of  Towers  v.  Osborne  went  upon  the  general 
principle  that  executory  conti-acts  were  not  within  the  meaning  of  the 
statute.  If  by  that  were  meant  contracts  for  the  sale  of  goods  to  be 
executed  on  a  future  day,  such  a  construction  would  be  a  repeal  of  the 
act ;  but  if  it  only  meant  such  contracts  as  were  incapable  of  being 
executed  at  the  time,  then  the  decision  was  right ;  and  such  was  the 
case  then  in  judgment.  But  in  this  sense  the  contract  here  cannot  be 
said  to  be  executory,  for  the  thing  existed  and  was  capable  of  being 
delivered.  It  is  much  to  be  lamented  that  the  excellent  iDro"\^sions  of 
the  Statute  of  Frauds  should  ever  have  been  infringed  or  weakened  by 
construction  ;  but  if  in  this  instance  it  has  been  so,  I  am  glad  that  the 
decision  in  the  case  of  Rondeau  v.  Wyatt  has  brought  us  back  to  the 
letter  and  true  sj^irit  of  that  law. 

Lawee]s"ce,  J.  The  case  of  Towers  v.  Osborne,  when  truly  con- 
sidered, was  not  a  contract  for  the  j^virchase  of  goods,  but  for  the 
makino;  of  something:  which  had  no  existence  at  the  time.  The  case  of 
Clayton  v.  Andrews  went  indeed  somewhat  farther ;  but  still  there  was 
to  be  some  alteration  in  the  state  of  the  commodity  before  it  was  to  be 
delivered.  The  cases  which  have  been  determined  in  the  Court  of 
Chancery  in  aid  of  contracts  of  this  kind  Avere  all  founded  upon  the 
decisions  wliich  had  been  made  at  law,  and  considered  as  necessarily 
consequent  upon  them.  But  it  is  not  difficult  to  collect  what  opinion 
was  entertained  of  these  decisions  by  Lord  Ch.  Thurlow,  when  the  case 
of  Rondeau  v.  Wyatt  came  before  him  in  the  Court  of  Chancery,^  upon 
a  bill  filed  to  discover  the  facts  and  names  of  the  parties  in  the  under- 
taking, in  order  to  found  the  action  at  law :  he  thought  that  the  mere 
fact  of  the  corn  not  being  to  be  delivered  immediately  would  not  have 
taken  the  case  out  of  the  statute,  if  the  point  had  been  new ;  but  he 
thought  himself  bound  by  the  cases  at  law  till  they  were  revised  by  a 
court  of  law.  Postea  to  the  defendant. 


CLARK  V.   MUMFORD. 
At  Nisi  Prius,  coram  Lord  Ellenborough,  July  10, 1811. 

[Reported  in  3  Campbell,  37.] 

Indebitatus  assumpsit  for  work,  labor,  and  materials. 
The  action  was  brought  on  a  farrier's  bill,  for  attendance  on  two 
horses  of  the  plaintiff,  and  medicines  administei'ed  to  them. 

1  3  Bro.  C.  C.  154. 


SECT.    I.]  GROVES   V.   BUCK.  9 

Garroio  contended  that  the  plaintiff  could  not  recover  upon  such  a 
count,  which  conveyed  no  information  of  the  nature  of  his  demand ; 
and  that  at  any  rate  the  medicines  must  be  considered  as  goods  sold  to 
the  defendant,  and  ought  to  have  been  declared  for  accordingly. 

LoRU  ELLENBOROUGn.  Any  species  of  work  and  labor  may  be  given 
in  evidence  under  such  a  general  count ;  and  the  medicines  here  may 
be  considered  materials  employed  by  the  plaintiff  in  and  about  the 
business  of  the  defendant. 

The  plaintiff  had  a  verdict  for  his  whole  demand. 


GROVES  V.  BUCK.  ^^^j^  //^>P^ 

In  the  King's  Bench,  November  11, 1814.  Z-  /  -  x>^~ 

\B.eported  in  3  3£aule  ^  Selwyn,  178.]  /^^^^^^^^^     ^ 

Case  for  not  accepting  a  quantity  of  oak  pins.     Plea,  General  issue. 

At  the  trial  before  Gibbs,  C.  J.,  at  the  last  Dorsetshu-e  assizes,  it 
appeared  that  in  April,  1813,  the  defendant  agreed  by  parol  to  purchase 
of  the  plaintiff,  for  a  sum  exceeding  £10,  a  quantity  of  oak  pins,  which 
were  not  then  made,  but  were  to  be  cut  out  of  slabs,  and  delivered  "to 
tEe  deFendant  at  Wepnouth.  And  the  question  made  at  the  trial  was 
whether  this  contract  was,  void  by  stat.  29  Car.  2,  c.  3,  §  17,  which 
enacts  [stating  it].  It  was  urged  for  the  plaintiff  that,  inasmuch  as  the  \ 
goods  were  not  capable  of  being  delivered  at  the  time  of  the  contract,  | 
not  beins:  then  in  existence,  the  contract  was  not  within  this  clause 
of  the  statute.  And  of  that  opinion  was  the  Chief  Justice,  and  ruled 
accordingly,  comparing  it  to  the  case  of  Towers  v.  Osborne ;  ^  and  a 
verdict  was  found  for  the  plaintiff. 

Gaselee  noAv  moved  to  enter  a  nonsuit,  and  he  said  that,  if  it  were 
res  nova^  the  true  reading  of  this  clause  of  the  statute  should  be  divi- 
sim^  reddendo  singula  singulis;  that  is,  that  the  buyer  shall  accept 
part  of  the  goods,  if  the  contract  be  for  the  sale  of  goods  capable  of 
delivery ;  but  if  not,  then  there  shall  be  earnest,  or  a  memorandum  in 
writing.  And  this  construction  will  include  every  contract  for  the  sale 
of  goods,  as  well  of  goods  to  be  made  as  of  goods  made,  which  are  cer- 
tainly within  the  same  mischief.  And  though  Towers  v.  Osborne  was 
recognized  in  Clayton  v.  Audrews,^  it  may  be  said  of  the  latter  case 
that  it  went  upon  a  very  refined  distinction,  such  as  would  leave  scarce 
any  case  of  future  delivery  within  this  clause  of  the  statute.  But  the 
authority  of  both  those  cases  seems  to  be  narrowed  by  the  subsequent 
case  of  Rondeau  v.  Wyatt.^ 

1  1  Str.  50G.  '•2  4  Burr.  2101.  '  2  H.  Bl.  G3. 


10 


GAEBUTT   V.   WATSON. 


[chap.  I. 


Lord  Ellenboeough,  C.  J.  The  subject-matter  of  this  contract  did 
not  exist  in  rerutn  natura  /  it  was  incapable  of  delivery  and  of  part 
acceptance,  and  where  that  is  the  case  the  contract  has  been  considered 
as  not  within  the  Statute  of  Frauds.  In  Rondeau  v.  Wyatt  the  thing 
contracted  for  existed  in  the  very  shape  and  substance  in  which  it  was 
to  be  delivered  ;  and  it  was  held  that  the  circumstance  of  its  being  to 
be  shipped  on  board  vessels  j^rovided  by  the  buyer  for  exportation,  did 
not  take  the  case  out  of  the  statute.  And  that  is  very  good  sense ;  for 
if  the  thing  be  capable  of  delivery  at  the  time,  why  is  it  not  done  ? 
but  the  same  reason  does  not  apj^ly  where  the  goods  are  not  deliver- 
able. 

Dampiee,  J.  The  court  in  Rondeau  v.  Wyatt  distinguished  it  from 
the  two  former  cases,  by  saying  that  in  those  cases  some  work  was  to 
be  performed.  Per  Curiam,  rule  refused} 


GARBUTT  AND  Another  v.  WATSON. 
In  the  King's  Bench,  April  26,  1822. 

[Reported  in  5  Barnewall  ^-  Alderson,  613.] 

Assumpsit  for  the  non-performance  by  the  defendant  of  a  special 
agreement  relating  to  the  sale  of  100  sacks  of  flour.  Plea,  general 
issue.  At  the  trial  at  the  last  assizes  for  the  county  of.  York,  before 
Bayley,  J.,  it  appeared  that  the  plaintiffs,  who  were  millers  near  Hull, 
on  the  22d  of  October,  1821,  made  an  agreement  with  the  defendant, 
a  corn  merchant,  for  the  sale  of  100  sacks  of  flour  at  50s.  per  sack,  to 
be  got  ready  by  the  plaintiff's  to  ship  to  the  defendant's  order  free  on 
board  at  Hull  within  three  weeks,  to  be  paid  for  by  a  bill  on  London 
at  two  months'  date  on  receipt  of  invoice.  There  was  no  memorandum 
in  writing  of  the  contract,  nor  any  earnest  j^aid.  The  flour  at  the  time 
of  the  bargain  was  not  prepared,  so  as  to  be  cai:)able  of  being  immedi- 
ately delivered  to  the  defendant.     The  learned  judge  at  the  trial  was 

1  In  Blackburn  on  Sale,  p.  7,  after  citing  Towers  v.  Osborne,  Clayton  v.  Andrews, 
and  Groves  v.  Buck,  the  author  says  :  "  The  principle  of  these  cases,  decided  by  great 
judges,  including  Pratt,  C.  J.,  Lord  Mansfield,  and  Lord  Ellenborough,  seems  to  have 
been  either  that  the  word  '  bargain '  in  the  statute  must  be  taken  in  the  strict  technical 
sense,  so  as  to  exclude  all  executory  contracts  not  amounting  to  a  bargain  and  sale,  or 
else  that,  as  the  statute  said  the  contract  was  to  be  good  if  the  buyer  '  accepted  and 
actually  received '  part  of  the  goods,  it  could  only  be  meant  to  apply  to  contracts  where 
it  was  possible  to  accept  and  receive  part  of  the  goods.  It  is  clear  that  the  buyer  could 
neither  accept  nor  receive  the  chariot  before  it  was  built,  thf.  corn  befpre  it  was  thrashed, 
or  the  oak  pins  before  they  were  cut  out."  —  Ed. 


^ 


V 


SECT.   I.]  GRAFTON   V.    ARMITAGE.  11 

of  opinion  tliat  the  case  fell  within  the  17th  section  of  the  Statute  of 
Frauds,  and  the  i)laintiffs  were  accordingly  nonsuited.     And  now 

Scarlett,  by  leave,  moved  to  enter  a  verdict  for  the  jdaintifF.  This 
case  falls  within  the  authority  of  Towers  v.  Osborne,^  Clayton  v.  An- 
drews,^ and  Gi'oves  v.  Buck.^  In  all  these  cases  the  court  held  that 
where  the  goods  were  not  capable  of  immediate  delivery,  the  sale  did 
not  fall  within  the  Statute  of  Frauds.  Eondeau  v.  AVyatf*  is  dis- 
tinguishable, for  there  the  flour  was  fully  prepared,  but  here  it  only 
existed  in  the  shape  of  unground  Avheat,  at  the  time  of  the  sale. 

Abbott,  C.  J.  In  Towers  v.  Osborne  the  chariot  Avhich  Avas  ordered 
to  be  made  Avould  never  but  for  that  order  have  had  any  existence. 
But  here  the  plaintifts  were  proceeding  to  grind  the  flour  for  the  pur- 
poses of  general  sale,  and  sold  this  quantity  to  the  defendant  as  part  of 
theii'  general  stock.  The  distinction  is  indeed  somewhat  nice,  but  the 
case  of  Towers  v.  Osborne  is  an  extreme  case,  and  ought  not  to  be 
carried  further.  I  think  this  case  was  rightly  decided,  the  contract 
being  one  for  the  sale  of  goods,  and  foiling  within  the  17th  section  of 
the  Statute  of  Frauds. 

Bayley,  J.  The  nearest  case  to  this  is  Clayton  v.  Andrews.  But 
that  decision  was,  as  it  seems  to  me,  corrected  by  Rondeau  v.  Wyatt. 
This  was  substantially  a  contract  for  the  sale  of  flour,  and  it  seems  to 
me  immaterial  whether  the  flour  was  at  the  time  ground  or  not.  The 
question  is,  whether  this  was  a  contract  for  goods,  or  for  work  and 
labor  and  materials  found.  I  think  it  was  the  former;  and  if  so,  it  falls 
within  the  Statute  of  Frauds. 

HoLROYD,  J.  I  am  of  the  same  ojiinion.  I  cannot  agree  with  the 
judgment  of  .the  court  in  Clayton  v.  Andrews.  This  was  a  contract 
for  the  sale  of  goods,  and  therefore  the  verdict  is  right. 

Best,  J.,  concurred.  Mule  refused. 


^'     ^ 


GRAFTON  V.  ARMITAGE.     ^^ 

In  the  CoxAimon  Pleas,  November  24,  1845.  ^''^-X^ 

\Reported  in  2  Common  Bench  Reports,  33G.] 

Debt  for  work  and  labor  and  materials,  and  for  money  due  upon 
an  account  stated.     Plea,  mmquam  indebitatus. 

At  the  trial  before  the  under-sherifl'  of  Middlesex,  it  appeared  that 
the  plaintiff"  claimed  £5  5s.  for  work  and  labor  and  materials  employed 
in  the  devising  and  constructing  a  machine  or  apparatus  for  the  cui-v- 

1  1  Str.  506.  2  4  Burr.  2101. 

3  3  M.  &  S.  179.  *  2  H.  131.  63. 


1  5 

0 

12 

0 

5 

0 

£5  5s. 

,  Od. 

12  GRAFTON   V.    ARMITAGE.  [CHAP.    I. 

ing  of  metal  tubing,  to  be  apiolied  in  the  construction  of  a  life-buoy  of 
which  the  defendant  was  the  patentee.  The  particulars  of  the  plain- 
tiff's demand  were  as  follows  :  — 

1844,  December.     For  scheming  and  experimenting  for,  and  making 

a  plan  drawing  of,  a  machine  for  the  purpose  of  constructing 
and  forming  tubing,  to  be  applied  to  and  in  the  manufacture  of 
patent  life-buoys  for  the  safety  and  preservation  of  boats  and 
shipwrecked  men,  with  specifications  :  engaged  three  days,  at 
one  guinea  per  day £3  3s.  Od. 

1845,  January  8.     For  workmen's  time  in  making  and  fitting  up  a 

drum  or  mandrel,  with  nut  and  staple,  and  attaching  same  to 
lathe,  in  accordance  with  plan,  and  experimenting  therewith, 
when  the  same  was  found  to  answer  most  satisfactorily  .     . 

For  the  use  of  the  lathe  one  week 

For  wood  and  iron  to  make  the  drum,  ard  for  brass  tubing  for 
the  experiments 


The  defendant  having  announced  his  intention  of  attending  the  experiments 
on  the  8th  of  January,  1845,  and  every  thing  being  got  ready  for  the  purpose, 
they  remained  in  that  state  for  upwards  of  a  week,  during  which  time  the  use  of 
a  costly  and  valuable  lathe  was  lost  to  the  plaintiff. 

The  plaintiff,  it  appeared,  was  a  working  engineer,  and  was  employed 
by  the  defendant  to  devise  some  j^lan  for  a  machine  for  curving  metal 
tubes  for  the  manufacture  of  a  life-buoy  of  which  the  defendant  was 
the  inventor;  that  the  plaintiff  prepared  a  dramng,  and  ultimately 
produced  a  ring  or  mandrel,  which  according  to  the  evidence  answered 
the  purpose  intended ;  and  that  models  of  air-tubes  were  made,  and  of 
a  machine  for  making  them. 

On  the  part  of  the  defendant  it  was  insisted,  on  the  authority  of 
Atkinson  v.  Bell,^  that  an  action  for  work  and  labor  was  not  under  the 
circumstances  maintainable,  but  that  the  action  should  have  been  for 
not  accepting  the  goods. 

For  the  plaintiff  Clark  v.  Mumford  ^  was  cited,  where  Lord  Ellen- 
borough  ruled  that,  under  a  genei'al  count  in  indebitatus  assumjysit  for 
•  work  and  labor  and  materials,  the  plaintiff  might  recover  for  attend- 
ances as  a  farrier,  and  for  medicines  administered  in  the  cure  of  the 
defendant's  horses. 

A  verdict  was  found  for  the  plaintiff,  damages  £5  5s.,  mth  leave  to 
the  defendant  to  enter  a  nonsuit,  if  the  court  should  be  of  opinion  that 
the  action  was  misconceived. 

Doioling,  Seijt.,  on  a  former  day  in  this  term,  accordingly  obtained 
a  rule  nisi. 

1  8  B.  &  C.  277,  2  M.  &  R.  292.  2  3  Campb.  87. 


SECT.    I.]  GRAFTON    V.    ARMITAGE.  13 

Byles^  Sei-jt.,  shewed  cause.  There  was  no  contract  in  tliis  case  for 
the  sale  of  any  goods.  The  phiintifF's  claim  consists  wholly  of  a 
demand  for  the  application  of  labor  and  skill  in  the  invention  of  a 
machine  for  the  more  perfectly  carrying  into  ciFect  the  ohject  the 
defendant  had  in  view.  The  case  is  not  distinguishable  from  Clark  v. 
Mumford.  Lord  Ellenborough  there  says :  "  Any  species  of  work  and 
labor  may  be  given  in  evidence  under  such  a  general  count ;  and  the 
medicines  here  may  be  considered  materials  employed  by  the  plaintiff 
in  and  about  the  business  of  the  defendant."  So  here,  the  avooiI,  iron, 
and  brass  tubing  may  properly  be  considered  materials  employed  in 
the  experiments  made  by  the  plaintiff  for  the  defendant.  Atkinson  v. 
Bell  is  altogether  a  different  case.  That  was  a  contract  for  the  sale  of 
goods :  this  is  a  mere  contract  for  the  exercise  of  the  plaintiff's  skill 
and  ingenuity  as  a  machinist,  the  materials  being  only  accessory. 

Doxdinf)^  Serjt.,  in  support  of  his  rule.     If  the  evidence  shews,  as  it 
clearly  does,  that  the  work  and  labor  were  bestowed  upon  the  plain- 
tiff's own  materials,  it  is  properly  a  .contract  for  the  sale  of  goods,  and 
not  work  and  labor.     It  is  distinctly  laid  down  in  Atkinson  v.  Bell 
that,  to  support  an  action  for  work  and  labor,  that  on  which  the  work 
is  perfoi-med  must  be  the  property  of  the  defendant.     Bayley,  J.,  says  : 
"In  order  to  sustain  an  action  for  work,  labor,   and  materials,  the 
materials  upon  which  the  work  and  labor  are  performed  must  be  the 
property  of  the  employer.     If  a  man  by  my  order  works  on  my  land, 
or  my  house,  or  my  furniture,  it  is  my  work,  and  I  am  at  once  liable 
to  pay  for  it.     But  here  Sheddon  was  working  upon  his  own  materials, 
and  the  contract  between  him  and  the  defendants  was   properiy  a 
contract  for  the  sale  of  goods,  and  not  for  work  and  labor."     [Maule, 
J.     In  order  to  sustain  a  count  for  work  and  labor,  it  is  not  necessary 
that  the  work  and  labor  should  be  performed  upon  materials  that  are 
the  property  of  the  plaintiff  [defendant?]  or  that  are  to  be  handed  over 
to  him.     Eele,  J.     Suppose  an  attorney  were  employed  to  prei)are  a 
partnership  or  other  deed :   the  draft  would  be  upon  his  own  paper, 
and  made  with  his  own  pen  and  ink ;  might  he  not  maintain  an  action 
for  work  and  labor  in  preparing  it  ?]    Here  the  contract  was  a  contract 
for  a  machine,  for  goods  :  what  difference  can  it  make  that  the  plaintiff 
was  not  sufficiently  skilled  in  his  business  to  make  the  article  without 
previous   experiments?     Those  experiments  were   not  made   at  the 
instance  of  the  defendant. 

TiNDAL,  C.  J.  It  appears  to  me  that  the  present  case  is  clearly  dis- 
tinguishable from  Atkinson  v.  Bell,  upon  which  the  learned  counsel  for 
the  defendant  has  placed  his  whole  reliance.  It  is  true  that  Bayley, 
J.,  there  lays  it  down  broadly,  that  "  if  you  employ  another  to  work 
up  his  own  materials  in  making  a  chattel,  then  he  may  dispose  of  the 
produce  of  that  labor  and  those  materials  to  any  otlier  person.  No 
right  to  maintain  any  action  vests  in  him  during  the  progress  of  the 


14  GRAFTON   V.    ARMITAGE.  [CHAP.   I. 

work ;  but  when  the  chattel  has  assumed  the  character  bargained  for, 
and  the  employer  has  acceiDted  it,  the  party  employed  may  maintain 
an  action  for  goods  sold  and  delivered ;  or,  if  the  employer  refuses  to 
accept,  a  special  action  on  the  case  for  such  refusal.  But  he  cannot 
maintain  an  action  for  work  and  labor,  because  his  labor  was  bestowed 
I  on  his  own  materials  and  for  himself,  and  not  for  the  person  who 
I  employed  him,"  In  the  application  of  those  obseiwations  regard  must 
J  be  had  to  the  particular  facts  of  that  case.  There,  Sheddon  (whose 
assignees  the  plaintiffs  were),  a  manufacturer  of  machinery,  was  em- 
ployed by  the  defendants  to  make  two  spinning-frames.  These 
spinning-frames  were  completed  and  j^acked,  ready  to  be  delivered  to 
the  defendants :  but  it  was  held  that,  as  the  appropriation  was  not 
assented  to  by  the  defendants,  there  was  no  change  of  property  so  as 
to  entitle  the  plaintiffs  to  maintain  an  action  for  goods  sold  and  dehv- 
ered ;  ^  and  that  a  count  for  work  and  labor  and  materials  could  not 
be  sustained  for  the  reason  already  stated,  viz.,  that  the  work  was 
done  upon  the  bankrupt's  own  materials,  which  still  remained  his 
property.  The  substance  of  the  contract  in  that  case  was  goods  to  be 
sold  and  delivered  by  the  one  party  to  the  other.  Here,  however, 
there  never  was  any  intention  to  make  any  thing  that  could  properly 
become  the  subject  of  an  action  for  goods  sold  and  delivered.  But  the 
plaintiff  was  applied  to  to  point  out  the  proper  mode  of  attaining  a 
given  object,  and  he  brings  his  action  for  work  and  labor  done  by  him, 
and  the  materials  used  in  the  performance  of  that  which  he  undertook 
to  do,  and  which  appears  from  the  evidence  to  have  been  successfully 
done.  I  think  it  quite  clear  that  the  count  for  work  and  labor  is  the 
proper  one  to  cover  such  a  claim,  and  that  the  plaintiff  is  as  much 
entitled  to  recover  in  respect  of  the  application  of  his  skill  and  scien- 
tific knowledge  as  he  would  have  been  for  mere  manual  work  and 
labor.  For  these  reasons  I  think  the  rule  for  entering  a  nonsuit  must 
be  discharged. 

CoLTMAK,  J.  I  am  of  the  same  opinion.  Atkinson  v.  Bell  is  clearly 
distinguishable  fi-om  the  present  case.  The  order  there  was  for  tAvo 
spinning-frames  to  be  made  for  the  defendants ;  and  though  the  mere 
undertaking  of  the  bankrupt  to  make  tAvo  spinning-frames  in  i^ursuance 
of  that  order  did  not  vest  in  them  the  property  in  the  identical  frames 
when  completed,  in  the  absence  of  any  assent  on  their  part  to  the 
appropriation,  still  the  contract  was  not  a  contract  for  work  and  labor. 
Bayley,  J.,  puts  that  case  upon  precisely  the  same  ground  on  which  the 
Lord  Chief  Justice  puts  this  case.  The  claim  of  a  tailor  or  a  shoe- 
maker is  for  the  price  of  goods  when  delivered,  and  not  for  the  Avork 
and  labor  bestowed  by  him  in  the  fabrication  of  them.  Littledale,  J., 
says :  "  As  to  the  count  for  Avork  and  labor  and  materials,  the  labor  was 
bestowed  and  the  materials  were  found  for  the  purpose  of  ultimately 
1  Sed  vide  Wilkins  v.  Bromhead,  6  M.  &  G.  963,  7  Scott,  N.  R.  921. 


SECT.    I.]  CLAY   V.    YATES.  15 

effecting  a  sale ;  and  if  that  purpose  was  never  completecl,  the  contract 
was  not  executed."  So  here,  if  this  liad  been  a  contract  by  the  phiin- 
tiff  to  make  a  machine  for  the  defendant,  the  proper  remedy  would 
have  been  by  an  action  for  goods  sold  and  delivered,  or  an  action  for 
not  accepting  the  machine.  Under  those  circumstances  Atkinson  v. 
Bell  would  have  been  an  authority.  But  here  it  appears  that  the 
plaintiff  was  merely  employed  to  use  his  skill  in  devising  a  mode  for 
carrying  out  the  defendant's  invention. 

Maule,  J.,  concurred. 

Erle,  .7.  I  also  am  of  opinion  that  the  rule  for  entering  a  nonsuit  in 
this  case  should  be  discharged.  The  fair  result  of  the  evidence  is  that 
the  plaintiff  was  employed  to  exert  his  skill  and  ingenuity  in  discovering 
a  mode  by  which  the  cur\dng  of  metal  tubes  might  be  effected  for  the 
better  carrying  out  the  defendant's  invention.  It  appears  to  me  to  be 
qiute  clear  that  the  proper  form  of  declaring  in  such  a  case  is  for  work 
and  labor.  -^w^e  discharged. 


C^^^O^     ^  CLAY  V.  YATES.    L/yJ^*^      ^^-^ 

^^^^,^^^>^  y-^^fetiifefe- Exchequer,  May  3,  1856.  //-TZ^  /i^^^ 

y't>      ^         [Reported  in  1  Hurlstone ^  Norman,  73.]        -Jf —    y^ 7cVC^£. <■  r< ll< 

Declaration  for  goods  sold  and  delivered,  and  work  and  labor  and 
/^^v^aterials.     Plea,  never  indebted. 

*^'T^^y^  At  the  trial  before  Pollock,  C.  B.,  at  the  London  sittings  after  last 
/J-  -4^Hilary  term,  it  appeared  that  the  defendant  applied  to  the  plaintiff,  a 
'^  i^^  printer,  to  print  a  second  edition  of  a  treatise  called  "  Military  Tactics." 

This  edition  was  to  contain  a  dedication  to  Sir  William  Napier.  The  _ 
plaintiff  verbally  agreed  to  find  the  paper  and  print  500  copies  for 
£4  10s.  a  sheet.  At  the  time  the  plaintiff  commenced  printing  the 
treirtise"  fh'e^cTecTication  was  not  written,  but  it  was  afterwards  sent  to 
him,  and  the  type  set  up  without  his  having  any  knowledge  of  its  con- 
tents. After  the  prool-sheets  of  the  dedication  had  been  revised  by 
the  defendant  and  returned  to  the  plaintiff,  he  for  the  first  time  dis- 
covered that  the  dedication  contained  libellous  matter,  and  he  refused 
to  complete  the  printing  of  it.  The  defendant  would  not  pay  for  the 
treatise  without  the  dedication,  whereupon  the  present  action  Avas 
brought  to  recover  for  printing  the  treatise. 

It  was  objected,  on  behalf  of  the  defendant :  first,  that  this  was  a 
contract  for  the  sale  of  goods  within  tlie  17th  section  of  the  Statute  of 
Frauds,  29  Car.  2,  c.  3,  as  extended  by  9  Geo.  4,  c.  14,  §  7 ;  ^  sec- 
ondly, that  the  contract  was  an  entire  one,  viz.,  to  print  the  treatise 
1  "  And  whereas  by  an  act  passed  in  England  in  the  twenty-nintli  year  of  the  reign 
of  King  Charles  the  Second,  intituled  An  Act  for  the  Prevcntiou  of  Frauds  and  Perjuries, 


16  CLAY   V.    YATES.  [CHAP.    I. 

and  the  dedication,  and  that  the  plaintifl"  having  refused  to  print  the 
dedication  was  not  entitled  to  recover  in  respect  of  the  treatise.  The 
learned  judge  left  it  to  the  jury  to  say:  first,  whether  work  and  labor 
Avas  the  essence  of  the  contract,  and  the  materials  merely  ancillary ; 
secondly,  whether  the  dedication  was  Ubellous.  The  jury  found  both 
questions  in  the  affirmative,  whereupon  a  verdict  was  entered  for  the 
plaintiff,  leave  being  reserved  to  the  defendant  [to  move]  to  enter  a 
verdict  for  him. 

Qtcain,  in  the  present  term,  obtained  a  rule  nisi  accordingly,  against 
which, 

3fontague  Smith  and  Hannen  now  shewed  cause.  This  is  not  a 
contract  for  the  sale  of  goods,  but  for  work,  labor,  and  materials.  The 
printer  bestows  his  skill  and  labor  in  printing  the  work,  and  the  mate- 
rials are  merely  ancillary.  In  Grafton  v.  Armitage  ^  the  plaintiff  was 
employed  by  the  defendant  to  devise  a  me+^^hod  of  curving  metal  tubing 
for  the  pm-pose  of  manufacturing  life-buoys,  and  it  was  held  that  the 
plaintiff  might  recover  under  a  count  for  work,  labor,  and  materials.  In 
Clark  V.  Muniford,^  which  was  an  action  on  a  farrier's  bill,  Lord  Ellen- 
borough  said  :  "  Any  species  of  work  and  labor  may  be  given  in  evidence 
under  such  a  general  count ;  and  the  medicines  here  may  be  considered 
materials  employed  by  the  plaintiff  in  and  about  the  business  of  the  v  --y 
defendant."  It  is  true  that  in  Atkinson  v.  Bell  ^  Bayley,  J.,  expressed 
an  opinion  that,  where  a  person  is  employed  to  work  up  his  own  mate-  ^ 

rials  into  a  chattel,  he  cannot  recover  for  work  and  labor ;  but  in  Gi'af- 
ton  V.  Armitage  Maule,  J.,  says,  "  In  order  to  sustain  a  count  for  work 
and  labor,  it  is  not  necessary  that  the  work  and  labor  should  be  per-  . 
formed  upon  materials  that  are  the  property  of  the  plaintiff  [defend-  ^ 
ant  ?]  ; "  and  Erie,  J.,  adds :  "  Suppose  an  attorney  were  employed  to 
prepare  a  partnership  or  other  deed :  the  draft  would  be  upon  his  own 

it  is,  among  other  things,  enacted,  that  from  and  after  the  twenty -fourth  day  of  June, 
one  thousand  six  hundred  and  seventy-seven,  no  contract  for  the  sale  of  any  goods, 
wares,  and  merchandises,  for  the  price  often  pounds  sterling  or  upwards,  shall  be  allowed 
to  he  good,  except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually  receive 
the  same,  or  give  something  in  earnest  to  bind  the  bargain  or  in  part  of  payment,  or 
that  some  note  or  memorandum  in  writing  of  the  said  bargain  be  made  and  signed  by 
the  parties  to  be  charged  by  such  contract,  or  their  agents  thereunto  lawfully  authorized  : 
And  whereas  a  similar  enactment  is  contained  in  an  act  passed  in  Ireland,  in  the 
seventh  year  of  the  reign  of  King  William  the  Third :  And  whereas  it  has  been  held 
that  the  said  recited  enactments  do  not  extend  to  certain  executory  contracts  for  the 
sale  of  goods,  which  nevertheless  are  within  the  mischief  thereby  intended  to  be 
remedied ;  and  it  is  expedient  to  extend  the  said  enactments  '  to  such  executory  con- 
tracts : '  — Be  it  enacted  that  the  said  enactments  shall  extend  to  all  contracts  for  the 
sale  of  goods  of  the  value  of  ten  pounds  sterling  and  upwards,  notwithstanding  the 
goods  may  be  intended  to  be  delivered  at  some  future  time,  or  may  not  at  the  time 
of  such  contract  be  actually  made,  procured,  or  provided,  or  fit  or  ready  for  delivery, 
or  some  act  may  be  requisite  for  the  making  or  completing  thereof,  or  rendering  the 
same  fit  for  delivery."  — Lord  Tenterden's  Act,  9  Geo.  IV.  c.  14,  §  7.  — Ed. 
1  2  C.  B.  336.  2  3  Campb.  37.  »  8  B.  &  C.  277. 


SECT.    I.]  CLAY   V.   YATES.  17 

paper,  and  made  with  his  own  pen  and  ink ;  might  he  not  maintain  an 
action  for  work  and  labor  in  preparing  it  ?  "  [Aldersox,  B.  If  the 
defendant  had  found  the  paper  and  ink,  it  woukl  ha^e  Ijeen  a  contract 
for  work  and  labor  •si7)i2^Uciter ;  and  the  fact  of  the  plaintift"  liaving 
found  tlie.jjaper  and  ink  only  makes  it  a  contract  for  work,  labor,  and 
materials.]  Secondly,  the  plaintiff  is  entitled  to  recover  for  printing  the 
treatise,  notwithstanding  he  refused  to  deliver  the  dedication.  When 
the  plaintiff  discovered  that  the  dedication  was  libellous,  he  was  justified 
in  refusing  to  complete  the  printing  of  it.  In  Poplett  v.  Stockdale  ^ 
Best,  C.  J.,  ruled  that  the  printer  of  an  immoral  and  libellous  work 
cannot  maintain  an  action  for  his  bill  against  the  piiblisher  who  em- 
ployed him. 

Quain,  in  sup2:)ort  of  the  rule.     This  is  a  contract  for  the  sale  of 
goods  within  the  ITth  section  of  the  Statute  of  Frauds.     Suppose  a 
printer  is  employed  to  print  a  hundred  visiting  cards,  would  that  be  a 
contract  for  work  and  labor  ?      [Martix,  B.,  referred  to  Bensley  v. 
Bignold,-  where  it  was  held  that  a  printer  could  not  recover  for  labor 
or  materials  used  in  printing  a  work  to  which  his  name  was  not  atHxed 
pursuant  to  the  39  Geo.  3,  c.  79,  §  27.]     In  Addison  on  Contracts,  p. 
223,  4th  ed.,  it  is  said  :   "  Thei'e  is  a  great  analogy,  it  has  been  observed 
by  civilians,  between  this  class  and  description  of  contract  of  sale,  and 
the  contract  of  letting  and  hiring  of  work  and  labor ;  and  we  are  told, 
in  the  Digest  and  in  the  Institutes,  how  to  discriminate  between  the 
one  and  the  other.     If,  it  is  said,  the  materials  for  the  work,  as  well  as 
the  work  itself,  have  been  furnished  by  the  workman,  then  the  contract 
is  a  contract  of  sale.     If,  on  the  other  hand,  the  employer  has  furnished 
the  materials,  and  the  undertaker  of  the  Avork  contributes  his  labor 
merely,  the  contract  is  a  contract  of  letting  and  hiring  of  labor." 
Again,  the  same  author  says,  p.  443  :  "  If  the  ground-work  of  the  labor 
or  the  princij^al  material  entering  into  its  composition  has  been  pro- 
vided by  the  employe]',  the  contract  is  a  contract  for  the  letting  and 
hiring  of  work,  although  the  undertaker  of  the  work  may  have  fur- 
nished the  accessorial  materials  necessary  for  its  completion.     If  a  man, 
for  instance,  sends  his  own  cloth  to  a  tailor  to  be  made  into  a  coat,  and 
the  tailor  furnishes  the  buttons,  the  thread,  and  the  trimmings,  the 
contract  is  nevertheless  a  letting  and  hiring  of  work,  and  not  a  con- 
tract of  buying  and  selling."     In  support  of  that  position  the  author 
cites  Pothier,  Louage  cV  Ouvrage,  No.  394.     [M.aiTix,  B.     Su2)i)ose  an 
artist  paints  a  portrait  for  300  guineas,  and  supplies  the  canvas  for  it, 
which  is  worth  10s.,  surely  he  might  recover  under  a  count  for  Avork 
and  labor.]     Xo  certain  rule  can  be  deduced  fi-om  the  comparative 
value  of  the  labor  and  materials.      In  Atkinson  r.  Bell,  Bayley,  B., 
says :  "  If  you  employ  a  man  to  build  a  house  on  your  land,  or  to  make 
a  chattel,  with  your  materials,  the  party  who  docs  the  work  has  no 
1  Ry.  &  Moo.  337.  2  5  jj.  &  Aid.  335. 

VOL.   I.  2 


18  CLAY   V.    YATES.  [CHAP.    I. 

power  to  appropriate  the  produce  of  his  labor  and  yoiir  materials  to 
any  other  person.  Having  bestowed  his  labor  at  your  request  on  your 
materials,  he  may  maintain  an  action  against  you  for  work  and  labor. 
But  if  you  employ  another  to  work  up  his  own  materials  in  making  a 
chattel,  then  he  may  appropriate  the  produce  of  that  labor,  and  mate- 
rials to  any  other  person.  No  right  to  maintain  any  action  vests  in 
him  during  the  progress  of  the  work  ;  but  when  the  chattel  has  assumed 
the  character  bargained  for,  and  the  emi^loyer  accepted  it,  the  party 
employed  may  maintain  an  action  for  goods  sold  and  delivered."  Graf- 
ton V.  Armitage  is  distinguishable,  for  there  the  contract  was  not  to 
deliver  any  thing  in  a  manufactured  state,  but  merely  to  make  experi- 
ments. [Martix,  B.  The  work,  when  printed,  may  not  be  worth  as 
a  book  one  halfpenny,  or  it  may  be  worth  £100 ;  then,  if  there  has 
been  no  express  stipulation  as  to  payment,  in  what  way  is  the  printer 
to  be  paid  ?]  Secondly,  this  was  an  entire  contract  to  print  both  the 
dedication  and  the  treatise,  and  the  plaintiff  is  not  entitled  to  charge 
for  printing  the  treatise  without  the  dedication.  In  such  a  case  no 
implied  contract  arises. 

Pollock,  C.  B.     The  rule  must  be  discharged.     The  first  question  is, 
whether  this  is  a  contract  for  the  sale  of  goods  within  the  17th  section 
of  the  Statute  of  Frauds,  and  I  am  of  opinion  that  it  is  properly  a 
contract  for  work,  labor,  and  materials.     It  appears  from  Chitty  on 
Pleading  ^  that  a  count  for  work,  labor,  and  materials  may  be  resorted 
to  by  farriers,  medical  men,  and  surveyors,  and  that  such  is  the  form  in 
which  they  are  in  the  habit  of  suing.     Against  the  opinion  of  Bayley, 
J.,  in  Atkinson  v.  Bell,  we  may  set  off  the  opinions  of  Maule,  J.,  and 
Eric,  J.,  in  the  case  of  Grafton  v.  Armitage,  and  then  we  have  to  decide 
the  point  as  if  it  were  quite  new  and  without  authority.     It  may  hap- 
pen that  part  of  the  materials  is  found  by  the  person  for  whom  the 
work  is  done,  and  part  by  the  person  who  does  the  work ;  for  instance, 
the  paper  for  printing  may  be  found  by  the  one  party,  while  the  ink  is 
found  by  the  printer.     In  such  cases  it  seems  to  me  that  the  true  crite- 
rion is,  whether  work  is  the  essence  of  the  contract,  or  whether  it  is 
the  materials  supplied.     My  impression  is,  that  in  the  case  of  a  work 
of  art,  whether  in  gold,  silver,  marble,  or  plaster,  where  the  apphcation 
of  skill  and  labor  is  of  the  highest  description,  and  the  material  is  of 
no  importance  as  compared  with  the  labor,  the  price  may  be  recovered 
as  work,  labor,  and  materials.     No  doubt  it  is  a  chattel  that  was  bar- 
gained for,  and,  if  delivered,  might  be  recovered  as  goods  sold  and  deliv- 
ered ;  still  it   may  also  be   recovered   as  work,  labor,  and   materials. 
Therefore  it  appears  to  me  that  this  is  properly  a  contract  for  work, 
labor,  and  materials.     I  am  inclined  to  think  that  it  is  only  where  the 
bargain  is  for  goods  thereafter  to  be  made,  and  not  where  it  is  a  mixed 
contract  for  work  and  materials  to  be  found,  that  Lord  Tenterden's 
Act,  9  Geo.  4,  c,  14,  ai^plies ;  and  the  reason  why  no  cases  on  this  sub- 
1  Vol.  i.  p.  359 ;  vol.  ii.  p.  61,  62,  7th  ed. 


SECT.    I.]  CLAY   V.    YATES. 


19 


ject  are  found  in  the  books  is,  that  before  Lord  Tentcrden's  Act  passed 
the  Statute  of  Frauds  did  not  apply  to  the  case  of  goods  not  actually 
made,  or  fit  for  delivery.  I  think  therefore  that  tlie  objection  does 
not  arise. 

Then  with  respect  to  the  other  point,  I  entertain  no  doubt.  I  told 
the  jury  that  if  tlie  plaintifl"  agreed  to  print'  the  dedication  and  the 
treatise,  and  so  undertook  to  print  that  which  he  knew  to  be  libellous, 
and  afterwards  said  that  he  would  not  print  both ;  in  such  case  he 
could  not  recover.  I  think  his  right  to  recover  rests  entirely  on  this 
ground,  that  he  had  been  furnished  with  the  treatise  without  the  dedi- 
cation. The  dedication  was  afterwards  sent,  but  he  had  no  opportu- 
nity of  reading  it  until  after  it  was  printed ;  he  then  discovered  that  it 
was  libellous,  and  refused  to  permit  the  defendant  to  have  it.  I  think 
that  if  a  contract  is  hoiui  fide  entered  into  by  a  printer  to  print  a  work 
consisting  of  two  parts,  and  at  the  time  he  enters  into  the  contract  he 
has  no  nieans  of  knowing  that  one  part  is  unlawful,  and  he  executes 
both,  but  afterw-ards  suppresses  that  Avhich  is  unlawful,  there  is  an 
implied  undertaking  on  tlie  i)art  of  the  person  employing  him  to  pay 
for  so  much  of  the  Avork  as  is  h\\yi\\\.  For  these  reasons  I  think  that 
the  rule  ought  to  be  discharged. 

Aldeksox,  B.     I  am  of  the  same  opinion,  and  have  nothing  to  add. 

Martix,  B.  I  am  of  the  same  opinion.  There  are  three  matters  of 
charge  well  known  to  the  law,  viz.,  for  labor  simi)ly,  for  labor  and 
materials,  and  for  goods  sold  and  delivered.  Now^  every  case  must  be 
judged  of  by  itself;  and  Avhat  is  the  present  case?  The  defendant 
having  a  manuscript,  takes  it  to  a  printer  to  print  for  him.  Then  what 
does  he  intend  shall  be  done?  He  intends  that  the  printer  shall  use 
his  type,  shall  set  it  up  in  a  frame  and  impress  it  on  paper,  tliat  the 
paper  shall  be  submitted  to  the  author,  that  the  author  having  cor- 
rected it  shall  send  it  back  to  the  printer,  who  shall  again  exercise 
labor  and  make  it  into  a  complete  tiling  in  the  shape  of  a  book.  That 
being  so,  I  think  that  the  plaintift'  was  employed  to  do  work  and  labor, 
and  supply  materials,  and  for  that  he  is  entitled  to  be  paid.  It  seems 
to  me  that  the  true  criterion  is  this:  Suppose  there  was  no  contract 
as  to  payment,  and  the  printer  brought  an  action  to  recover  what  he 
was  by  law  entitled  to  receive,  Avould  that  be  the  value  of  the  book  as 
a  book?  I  apprehend  not;  for  the  book  might  not  be  worth  half  the 
value  of  the  paper  on  which  it  was  printed,  but  he  would  be  entitled 
to  recover  for  his  work,  labor,  and  materials  supplied ;  therefore  this  is 
in  strictness  work,  labor,  and  materials  done  and  provided  by  tlie 
plaintitf  for  the  defendant.  In  the  case  of  Bensley  v.  Bignold,  where 
the  defence  w\as  that  the  prhiter  had  not  affixed  his  name  to  the  book 
as  required  by  the  39  Geo.  3,  c.  79,  §  27,  it  was  treated  by  Abbott,  C. 
J.,  Bayley,  J.,  and  Ilolroyd,  J.,  as  a  contract  for  work,  labor,  and  mate- 
rials ;  and  concurring  in  opinion  with  them,  I  do  not  think  it  profitable 
to  go  into  an  examination  of  the  other  cases. 


20 


LEE   V.  GRIFFIN. 


[chap.  I. 


With  respect  to  the  other  point,  I  agree  that  as  soon  as  a  printer 
discovers  the  objectionable  nature  of  the  work  which  he  is  employed 
to  print,  he  ought  to  stop,  and  that  he  would  not  be  entitled  to  recover 
for  work  done  after  he  made  the  discovery.  But  I  cannot  doubt  that 
in  this  case,  although  the  contract  has  never  been  performed,  yet  as  the 
work  was  commenced  on  the  retainer  of  the  defendant,  and  in  igno- 
rance that  part  of  it  was  unlawful,  a  duty  arises  to  pay  the  plaintiif  for 
that  part  which  he  has  performed.  It  is  like  one  of  those  transactions 
where  a  person  accepts  goods  not  made  according  to  contract,  in  which 
case  the  law  imphes  a  promise  to  pay  for  them ;  though  perhaps  the 
better  expression  would  be,  "  a  duty  arises  to  pay  for  them,"  for  the 
true  o-round  of  the  right  to  recover  is,  that  such  a  state  of  cu'cum- 
stances  has  arisen  that  in  point  of  law  there  is  a  duty  to  pay. 

Beasiwell,  B.  I  did  not  hear  the  whole  of  the  argument,  and  will 
not  therefore  give  a  decided  opinion ;  but  I  am  inclined  to  think  that 
the  plaintiff  is  entitled  to  recover,  even  assuming  Mr.  Quain's  argu- 
ment to  be  right.  The  contract  is  to  print  a  treatise  and  a  dedication, 
the  latter  to  be  thereafter  furnished.  That  imposed  on  the  defendant 
the  obligation  of  furnishing  a  dedication  such  as  the  plaintiff  could  by 
law  print.  It  may  be  true,  as  Mr.  Quain  says,  that  the  entire  article 
was  not  produced,  and  the  defendant  was  not  bound  to  accept  a  partial 
one;  but  then  the  plaintiff  might  maintain  an  action  against  the 
defendant  on  his  implied  contract  to  furnish  a  lawftd  dedication,  or 
instead  of  that  he  may  rely  upon  an  implied  contract  to  be  paid  for 
what  he  could  lawfully  print.  However,  for  the  reason  before  stated 
I  give  no  decisive  judgment  on  the  point.  Bide  discharged. 

a  LEE  V.  GRIFFIN. 

'"  '^        In  the  Queen's  Bench,  May  9,  1861. 


[Reported  in  1  Best  Sr  Smith,  272.] 

DECLAEATio]sr  agaiust  the  defendant,  as  the  executor  of  one  Frances 
P.,  for  goods  bargained  and  sold,  goods  sold  and  dehvered,  and  for 
work  and  labor  done  and  materials  provided  by  the  plaintiff  as  a 
surgeon-dentist  for  the  said  Frances  P. 

Plea,  that  the  said  Frances  P.  never  was  indebted  as  alleged. 

The  action  was  brought  to  recover  the  sum  of  £21  for  two  sets  of 
artificial  teeth  ordered  by  the  deceased. 

At  the  trial,  before  Crompton,  J.,  at  the  sittings  for  Middlesex  after 
Michaelmas  tenn,  1860,  it  was  proved  by  the  plaintiff  that  he  had,  in 
pursuance  of  an  order  from  the  deceased,  prepared  a  model  of  her 


SECT.    I.]  LEE   V.   GRIFFIN.  21 

mouth,  and  made  two  sets  of  artificial  teeth ;  as  soon  as  they  Avere 
ready  he  wrote  a  letter  to  the  deceased,  requesting  her  to  ai)])oint  a 
day  when  he  could  see  her  for  the  j^urpose  of  fitting  them.  To  this 
communication  the  deceased  replied  as  follows :  — 

My  dear  Sir,  —  I  regret,  after  your  kind  effort  to  oblige  me,  my  health 
will  prevent  my  taking  advantage  of  the  early  day.  I  fear  I  may  not  be  able 
for  some  days.  Yours,  &c.,  Fr.vnx'ES  P. 

Shortly  after  writing  the  above  letter  Frances  P.  died.  On  these 
facts  the  defendant's  counsel  contended. that  the  plaintiflf  ought  to  be 
nonsuited,  on  the  ground  that  there  was  no  evidence  of  a  delivery  and 
acceptance  of  the  goods  by  the  deceased,  nor  any  memorandum  in 
A\Titing  of  a  contract  within  the  meaning  of  the  17th  section  of  the 
Statute  of  Frauds,  29  Car.  2,  c.  3,  and  the  learned  judge  was  of  that 
opinion.  The  plaintiff's  counsel  then  contended  that,  on  the  authority 
of  Clay  V.  Yates,^  the  plaintift'  could  recover  in  the  action  on  the  count 
for  work  and  labor  done,  and  materials  provided.  The  learned  judge 
declined  to  nonsuit,  and  directed  a  verdict  for  the  amount  claimed  to 
be  entered  for  the  plaiutift",  with  leave  to  the  defendant  to  move  to 
enter  a  nonsuit  or  verdict. 

In  Hilary  tenn  following  a  rule  nisi  having  been  obtained  accord- 

Fatchett  now  shewed  cause.    1.  The  principal  question  ni  this  case 

is,  whether  the  essence  of  the  contract  in  the  second  count  is  in  the 

work  and  labor,  or  in  the  materials  that  were  found.     The  deceased  in 

truth  contracted   for  the  skill  of  the  dentist,  and  the  materials  are 

merely  ancillary  to  the  work  and  labor.     Clay  v.  Yates.     [Hill,  J. 

The  circumstances  in  Clay  i'.  Yates  are  peculiar.     It  was  a  case  of  a 

printer  employed  to  print  a  book.     If  I  employ  a  man  to  print  for  me, 

I  must  give  him  something  to  print  from,  and  he  does  his  Avork  with 

my  materials ;  he  also,  to  a  certain  extent,  supplies  his  o\ra  materials, 

but  they  are  only  accessorial.     The  present  case,  is  more  like  Towers 

V.  Osborne,^  and  other  similar  cases,  which  were  decided  on  the  Statute 

of  Frauds  before  tlie  passing  of  Lord  Tenterden's  Act,  9  G.  4,  c,  14.] 

This  case  is  not  to  be  distinguished  from  that  of  an  artist  employed  to 

paint  a  picture.    In  Clay  v.  Yates,  Martin,  B.,  says,  "  Suppose  an  artist 

paints  a  portrait  for  300  guineas,  and  suj^plies  the  canvass  for  it  worth 

ten  shillings,  surely  he  might  recover  under  a  count  for  work  and 

labor;"  and  Pollock,  C.  B.,^iii  his  judgment,  says,  "In  the  case  of  a 

work  of  art,  Avhcther  in  gold,  silver,  marble,  or  i)lastcr,  where  the  ai)pli. 

cation  of  skill  and  labor  is  of  the  highest  description,  and  the  material 

is  of  no  importance  as  compared  with  the  labor,  the  price  may  be 

recovered  as  work,  labor,  and  materials."     So  here  the  ivory  used  in 

the  work  was  of  insignificant  value  compared  to  the  skill  employed. 

1  1  H.  &  N.  73.  2  1  Sir.  506. 


22  LEE   V.   GRIFFIN.  [CHAP.   I. 

[Blackburn,  J.  Atkinson  v.  Bell  ^  is  an  express  authority  against 
you ;  though  the  dictum  of  Bayley,  J.,^  that  a  plaintiff  cannot  main- 
tain an  action  for  work  and  labor  where  the  labor  was  bestowed  on 
his  own  materials,  is  not  law,  and  has  been  dissented  from  in  Grafton 
V.  Armitage,^  and  also  in  Clay  v.  Yates.] 

2.  If  the  plaintiff  cannot  recover  on  the  count  for  work  and  labor, 
he  can  maintain  his  action  on  the  count  for  goods  bargained  and  sold. 
The  letter  written  by  the  deceased  is  a  sufficient  memorandum  of  a 
contract  under  the  Statute  of  Frauds.     Ridgway  v.  Wharton.^ 

Griffits^  in  support  of  the  rule,  was  not  called  upon  to  argue. 

Ckomptox,  J.  I  think  that  this  rule  ought  to  be  made  absolute. 
On  the  second  point  I  am  of  the  same  opinion  as  I  was  at  the  trial. 
There  is  not  any  siifficient  memorandum  in  writing  of  a  contract  to 
satisfy  the  Statute  of  Frauds.  The  case  decided  in  the  House  of  Lords, 
to  which  reference  has  been  made  during  the  argument,  is  clearly  dis- 
tinguishable. That  case  only  decided  that  if  a  document,  which  is 
silent  as  to  the  particulars  of  a  contract,  refers  to  another  document 
which  contains  such  particulars,  ])^vo\  evidence  is  admissible  for  the 
purpose  of  shewing  what  document  is  referred  to.  Assuming,  in  this 
case,  that  the  two  documents  were  sufficiently  connected,  still  there 
Avould  not  be  any  sufficient  evidence  of  the  contract.  The  contract  in 
question  was  to  deliver  some  particular  teeth  to  be  made  in  a  particu- 
lar way,  but  these  letters  do  not  refer  to  any  particular  bargain,  nor  in 
any  manner  disclose  its  terms. 

The  main  question  which  arose  at  the  trial  was,  whether  the  contract 
in  the  second  count  could  be  treated  as  one  for  Avork  and  labor,  or 
whether  it  was  a  contract  for  goods  sold  and  delivered.  The  distinc- 
tion between  these  two  causes  of  action  is  sometimes  very  fine  ;  but 
where  the  contract  is  for  a  chattel  to  be  made  and  deliA^ered,  it  clearly 
is  a  contract  for  the  sale  of  goods.  There  are  some  cases  in  which  the 
supply  of  the  materials  is  ancillary  to  the  contract,  as  in  the  case  of  a 
l^rinter  supplying  the  paper  on  which  a  book  is  i:)rinted.  In  such  a 
case  an  action  might  j^erhaps  be  brought  for  work  and  labor  done  and 
materials  provided,  as  it  could  hardly  be  said  that  the  subject-matter 
of  the  contract  was  the  sale  of  a  chattel :  perhaps  it  is  more  in  the 
nature  of  a  contract  merely  to  exercise  skill  and  labor.  Clay  v.  Yates 
turned  on  its  own  peculiar  circumstances.  I  entertain  some  doubt  as 
to  the  correctness  of  that  decision  ;  but  I  certainly  do  not  agree  to  the 
proposition  that  tlie  value  of  the  skill  and  labor,  as  com2:)ared  to  that 
dnttc  maUrial  supplii'il,  is  ;i  criteribn  tjy  which  to  decide  whether  the 
contract  be  for  work  and  labm\.04:.,Y^  of  the  chattel.     Here, 

however^The  subject-matter  of  the  contract  was  the  supply  of  goods. 
The  case  bears  a  strong  resemblance  to  that  of  a  tailor  supplying  a 

1  8  B.  &  C.  277.  2  pp.  283-4.  3  2  C.  B.  336. 

4  6  II.  L.  Ca.  238. 


SECT.    I.]  LEE    V.    GRIFFIN.  23 

coat,  the  measurement  of  the  mouth  and  fitting  of  the  teeth  being 
analogous  to  the  measurement  and  fitting  of  tlie  garment. 

Hill,  J.  I  am  of  the  same  opinion.  1  tliink  that  the  decision  in 
Clay  V.  Yates  is  perfectly  right.  That  was  not  a  case  in  -which  a  party 
ordered  a  chattel  of  another  which  was  afterwards  to  be  made  and 
delivered,  but  a  case  in  which  the  subject-matter  of  the  contract  was 
the  exercise  of  skill  and  labor.  W]icn;ever.a„CQUti:act^ Is  entered  into 
io^JJiU.Hi!mufacture  of  a  chattel,  tliei-e  the  subject-matter  of  the  <  mii- 
tract.^Jbe  sale  and  ctclivcry  of  the  chattel,  and  the  party  supplying  it 
cannot  recovei-  for  wort  and  labor.  Atkinson  v.  Bell  is,  in  my  opinion, 
"gooctlaWj^^Avith  the  exeeption  of  the  dictum  of  Bayley,  J.,  which  is 
reinidiated  by  Maule,  J.,  in  Grafton  v.  Armitage,  where  he  says  :  "  In 
order  to  sustain  a  count  for  work  and  labor,  it  is  not  necessary  that  the 
work  and  labor  should  be  performed  upon  materials  that  are  the  prop- 
erty of  the  plaintift^  [defendant?]."  And  Tindal,  C.  J.,  in  his  judgment 
in  the  same  case,  page  340,  points  out  that  in  the  application  of  the 
observations  of  Bayley,  J.,  regard  must  be  had  to  the  particular  focts  of 
the  case.  In  every  other  respect,  therefore,  the  case  of  Atkinson  v.  Bell 
is  law.  I  think  that  these  authorities  are  a  complete  answer  to  the 
point  taken  at  the  trial  on  behalf  of  the  plaintift". 

When,  however,  the  facts  of  this  case  are  looked  at,  I  cannot  see 
how,  wholly  irrespective  of  the  question  arising  under  the  Statute  of 
Frauds,  this  action  can  be  maintained.  The  contract  entered  into  by 
the  i)laintiff  with  the  deceased  was  to  supply  two  sets  of  teeth,  which 
were  to  be  made  for  her  and  fitted  to  her  mouth,  and  then  to  be  paid 
for.  Through  no  defiiult  on  her  part,  she  having  died,  they  never  were 
fitted ;  no  action  can  therefore  be  brought  by  the  plaintiff. 

Blackbuej^,  J.  On  the  second  point,  I  am  of  opinion  that  the  letter 
is  not  a  sufiicient  memorandum  in  writing  to  take  the  case  out  of  the 
Statute  of  Frauds. 

On  the  other  point,  the  question  is  whether  the  contract  was  one  for 
the  sale  of  goods  or  for  work  and  labor.  I  think  that  in  all  cases,  in 
order  to  ascertain  Avhether  the  action  ought  to  be  brought  for  goods 
sold  and  delivered,  or  for  work  and  labor  done  and  materials  provided,  \, 
we  must  look  at  the  particular  contract  entered  into  between  the 
parties.  If  the  contract  be  such  that,  when  caiTied  out,  it  would  result 
'l  in  the  sale  oT  a  chattel^  the  party  cannot  sue  for  work  and  labor;  but      a    V  1^ 

'  if  tiie  result  of  the  contract  IS  that  the'party  lias  done  work  and  labor \^^  .j\ 

•^ which  cuds  in  ii< iiliing  that  can"l)ecome  the  subject  of  a  sale,  the  party 
(cannot  sue  fur  guods  sold  and  delivered.  The  case  of  an  attorney  em- 
! ployed  to  prepare  a  deed  is  an  illustration  of  this  latter  proposition. 
It  cannot  be  said  that  the  paper  and  ink  he  uses  in  the  preparation  of 
the  deed  are  goods  sold  and  delivered.  The  case  of  a  printer  printing 
a  book  would  most  prol>ably  fall  within  the  same  category.  In  Atkin- 
son V.  Bell  the  contract,  if  carried  out,  would  have  resulted  in  the  sale 


\ 


^ 


24  LEE   V.    GRIFFIN.  [CHAP.    I. 

of  a  chattel.  In  Grafton  v.  Armitage,  Tindal,  C.  J.,  lays  down  this 
very  principle.  He  draws  a  distinction  between  the  case  of  Atkinson 
V.  Bell  and  that  before  him.  The  reason  he  gives  is  that,  in  the  former 
case  "  the  substance  of  the  contract  was  goods  to  be  sold  and  delivered 
by  the  one  party  to  the  other ; "  in  the  latter,  "  there  never  was  any 
intention  to  make  any  thing  that  coiild  properly  become  the  subject  of 
an  action  for  goods  sold  and  delivered."  I  think  that  distinction  recon- 
ciles those  two  cases,  and  the  decision  of  Clay  v.  Yates  is  not  incon- 
sistent with  them.  In  the  jDresent  case  the  contract  was  to  deliver  a 
thing  which,  when  completed,  would  have  resulted  in  the  sale  of  a 
chattel ;  in  other  words,  the  substance  of  the  contract  was  goods  sold 
and  delivered.  I  do  not  think  that  the  test  to  ajiply  to  these  cases 
is  whether  the  value  of  the  work  exceeds  that  of  the  materials  used  in 
its  execution ;  for,  if  a  sculptor  were  employed  to  execute  a  work  of 
art,  greatly  as  his  skill  and  labor,  supj^osing  it  to  be  of  the  highest 
description,  might  exceed  the  value  of  the  marble  on  which  he  Avorked, 
the  contract  would,  in  my  opinion,  nevertheless  be  a  contract  for  the 
sale  of  a  chattel.  Hide  absolute} 

1  In  Benjamin  on  Sale,  after  citing  the  foregoing  cases,  the  learned  author  says 
(p.  79)  :  "  In  reviewing  these  decisions,  it  is  surprising  to  find  that  a  rule  so  satisfac- 
tory and  apparently  so  obvious  as  that  laid  down  in  Lee  v.  Griffin,  in  1861,  should  not 
have  been  earher  suggested  by  some  of  the  eminent  judges  who  had  been  called  on  to 
consider  the  subject,  beginning  with  Lord  Ellenborough,  in  1814,  and  closing  M'ith 
Pollock,  C.  B.,  in  1856.  From  the  very  definition  of  a  sale,  the  rule  would  seem  to  be 
at  once  deducible,  that  if  the  contract  is  intended  to  result  in  transferring  for  a  price 
from  B.  to  A.  a  chattel  in  which  A.  had  no  previous  property,  it  is  a  contract  for  the 
sale  of  a  chattel,  and  unless  that  be  the  case,  there  can  be  no  sale.  In  several  of  the 
opinions  this  idea  was  evidently  in  the  mindsof  the  judges.  Especially  was  this  mani- 
fest in  the  decision  of  Bayley,  J.,  in  Atkinson  v.  Bell,  8  B.  &  C.  277,  and  Tindal,  C.  J., 
in  Grafton  v.  Armitage ;  but  it  was  not  clearly  and  distinctly  brought  into  view  before 
the  decision  in  Lee  v.  Griffin.  The  same  tentative  process  for  arriving  at  the  proper 
distinctive  test  between  these  two  contracts  has  been  gone  through  in  America,  but 
without  a  satisfactory  result,  as  will  subsequently  appear. 

"  The  principles  suggested  as  afibrding  a  test  on  this  subject  prior  to  the  case  of  Lee 
I".  Griffin  were  the  following:  — 

"  1.  Tliat  if  the  subject-matter  of  the  contract  was  not  in  existence,  not  in  rerum 
natura,  as  Lord  Ellenborough  expressed  it,  the  contract  was  not  'for  the  sale  of  goods.' 
This  was  tlie  opinion  of  Lord  Ellenborough  in  Groves  r.  Buck  ;  of  Abbott,  C.  J.,  as 
shown  by  his  comment  on  Towers  i\  Osborne  in  the  opinion  delivered  in  Garbutt  v. 
"Watson ;  and  may  be  inferred  from  Eondeau  v.  "Wyatt  to  have  been  the  opinion  of 
Lord  Loughborough. 

"  That  the  decision  in  Towers  v.  Osborne  was  wrong,  if  it  went  upon  the  ground  that 
Lord  Loughborough  states,  viz.,  that  the  order  for  the  chariot  was  not  a  contract  or 
agreement  for  the  sale  of  a  chattel,  is  no  longer  questionable.  The  fiimiliar  example 
put  by  the  judges  in  several  of  the  cases,  of  an  order  to  a  tailor  or  shoemaker  for  a 
garment  or  pair  of  shoes,  both  of  which  are  treated  as  undoubted  cases  of  contracts 
for  the  sale  of  chattels,  is  exactly  the  same  as  the  order  in  Towers  v.  Osborne.  The 
intention  of  the  parties  was  that  the  result  should  be  a  transfer  for  a  price,  by  Towers 
to  Sir  John  Osborne,  of  a  chattel  in  which  Sir  John  had  no  previous  property,  and 
this  was  clearly  a  contract  for  a  sale. 


SECT.   I.]  MIXER   V.    HOWARTH.  26 


JOHN  MIXER  V.   JOHN  HOWARTII. 

Supreme  Judicial  Court  of  Massachusetts,  January  24, 

February  1,  1839. 

[Reported  in  21  Pickering,  205.] 

Assumpsit.  Trial  before  Wikle,  J.  The  A\Tit  contained  the  com- 
mon counts  for  work  and  labor,  and  materials  found,  &c.  In  the 
Common  Pleas  the  plaintiff  filed  a  specification,  claiming  to  recover 
$250,  the  price  of  a  buggy  sold  and  delivered  to  the  defendant.     In 

"  2.  The  second  principle  suggested  as  the  true  test  was  hy  Bayley,  J.,  first  in  Smith 
V.  Surman,  9  B.  &  C.  5G8,  afterwards  more  fully  developed  in  Atkinson  r.  Bell,  viz., 
that  if  the  materials  be  furnished  by  the  employer,  the  contract  is  for  work  and  labor, 
not  for  a  sale  ;  but  if  the  material  be  furnished  by  the  workman  who  makes  up  a  chat- 
tel, he  cannot  maintain  '  work  and  labor,'  because  his  labor  was  bestowed  on  his  own 
materials  and  for  himself,  and  not  for  the  person  who  employed  him.  The  first  branch 
of  this  rule  is  undoubtedly  correct,  as  shown  by  the  principles  settled  in  Lee  r.  Griffin, 
because  where  the  materials  are  furnished  by  the  employer,  there  can  be  no  transfer 
to  him  of  the  property  in  the  chattel,  he  being  previously  possessed  of  the  title  to  the 
materials,  so  that  nothing  can  be  due  from  him  save  compensation  for  labor  ;  and  this 
will  be  equally  true  where  the  employer  has  furnished  only  part  of  the  materials,  for 
the  contract  in  such  case  cannot  result  in  a  sale  to  him  of  what  is  already  his,  and  the 
only  other  action  possible  would  be  for  work  and  labor  done,  and  materials  furnished. 
But  the  second  part  of  the  rule  is  inaccurate,  as  pointed  out  in  Grafton  v.  Armitage 
and  Lee  v.  Griffin.  A  man  may  be  responsible  for  damage  done  to  another's  cliattel, 
as  for  example,  to  a  coachmaker's  vehicle,  and  may  employ  the  latter  to  repair  the 
injury,  in  which  case  an  action  would  plainly  lie  against  the  employer  for  the  work 
and  labor  done  and  materials  furnished  by  the  coach-builder,  although  bestowed  on  a 
thing  which  is  his,  and  is  to  remain  his  after  being  repaired  at  another's  expense. 

"  3.  The  third  attempt  to  supply  the  true  test  on  this  matter,  previously  to  its 
satisfactory  settlement  in  Lee  v.  Griffin,  was  made  by  Pollock,  C.  B.,  in  Clay  v. 
Y^ates.  The  proper  rule,  in  his  opinion,  is  this  :  '  Whether  the  work  and  labor  is  of 
the  essence  of  the  contract,  or  whether  it  is  the  materials  that  are  found.'  This  test 
was  decisively  rejected  by  Crompton  and  Blackburn,  JJ.,  in  Lee  v.  Griffin.  It  cannot 
be  supported,  even  in  the  extreme  case  put  by  Martin,  B.,  of  a  portrait  worth  300 
guineas  on  a  canvas  wortli  10s.  If  the  employer  owned  nothing  whatever  that  went 
into  the  composition  of  the  picture— if  neither  materials,  nor  skill,  nor  labor  were 
supplied  by  him,  it  is  obvious  that  he  cannot  get  title  to  the  picture  or  any  property 
in  it,  except  through  a  transfer  of  the  chattel  to  him  by  the  artist  for  a  price,  and  this 
is  in  law  a  contract  of  sale.  It  cannot  make  the  slightest  difference  in  what  proportions 
the  elements  that  compose  the  chattel,  viz.,  the  raw  material  and  the  skill,  are  divided ; 
it  is  not  the  less  true  that  none  of  these  elements  were  owned  by  the  employer  before 
the  contract,  and  that  the  chattel  composed  of  them  is  by  the  terms  of  the  contract  to 
be  transferred  for  a  price  by  the  former  owner  to  the  employer.  The  test  suggested  by 
Martin,  B.,  in  his  opinion  as  found  in  the  Law  Journ.al  Report,  is  accurate  as  far  as  it 
goes,  but  it  does  not  cover  more  than  the  point  in  the  case  before  the  court.  The 
learned  Baron  said  :  '  Suppose  the  plaintiff  had  brought  an  action  to  recover  the  value 
of  that  which  he  had  delivered,  would  that  be  the  value  of  the  book  ?  I  apprehend 
not,  for  the  book  might  not  be  worth  half  the  value  of  the  paper  it  was  written  on.' 


26  MIXER    V.    HOWARTH.  [CHAP.   I. 

this  court  he  filed  an  additional  specification,  claiming  for  work  and 
labor,  and  materials  furnished  the  defendant,  at  his  request,  upon  the 
same  article,  S250 ;  and  likewise  a  count  setting  forth  a  special  con- 
tract that  the  plaintiff'  should  build  a  buggy,  and  that  the  defendant 
should  take  and  pay  for  the  same,  with  the  usual  necessary  averments. 
To  this  last  count  the  defendant  objected,  because  it  was  not  for  the 
same  cause  of  action  and  not  consistent  with  the  original  declaration ; 
but  the  amendment  was  allowed  without  terms. 

Tlie  testimony  of  witnesses  produced  by  the  plaintiff"  had  a  tendency 
to  prove  that  in  September,  1836,  the  defendant  came  into  the  plain- 
tiif's  shop  and  selected  a  piece  of  cloth  for  the  lining  of  a  buggy ;  that 
the  plaintiff"  then  had  on  hand  the  body  of  a  buggy,  nearly  finished, 
but  not  lined;  that  by  a  conversation  between  the  parties  it  was 
understood  that  the  plaintiff"  was  to  finish  a  buggy  for  the  defendant 
in  a  fortnight  from  that  time ;  and  that  the  unfinished  buggy  was  com- 
pleted accordingly,  and  the  defendant  had  notice  thereof  and  was 
requested  to  take  it  away,  but  he  declined  so  to  do.  The  witnesses 
were  allowed  to  testify  as  to  the  estimated  value  of  the  trimmings  and 
other  materials  used  in  finishing  the  buggy,  and  of  the  plaintiff''s  work 
and  labor  thereon.  A  witness  named  Scadding  testified  that,  at  the 
time  when  the  defendant  went  to  the  plaintiff"'s  sliop,  the  plaintiff"  had 
but  ope  carriage-body  on  hand  not  lined ;  that  the  plaintiff"  had  on 
hand  several  buggies  partly  finished ;  that  the  witness  did  not  know  of 
any  thing  done  in  consequence  of  any  application  made  by  the  defend- 
ant, except  that  the  plaintiff"  had  before  that  time  told  him  that  he 
should  not  complete  any  more  buggies  that  fall  unless  ordered,  and 
after  this  a  buggy  was  finished ;  that  no  account  was  kept  of  any  labor 
or  materials ;  and  that  the  witness  knew  nothing  of  any  work  done 
except  upon  the  body. 

The  defendant  moved  for  a  nonsuit,  because  the  contract,  if  any,  was 
void  by  the  Revised  Stat.,  c.  74,  §  4  (of  frauds)  ;  but  the  judge  intimat- 
ing a  diff"erent  opinion,  a  verdict  was  taken  for  the  plaintiff",  subject  to 
the  opinion  of  the  whole  court. 

This  is  true,  and  why  ?  Because  a  part  of  the  materials  of  the  book  —  its  chief  mate- 
rials indeed,  to  wit,  the  composition  —  had  been  furnished  by  the  employer,  belonged 
to  him  already,  and  therefore  could  not  be  sold  to  him  by  the  printer.  The  only 
remedy  then  remaining  was  an  action  for  work  and  labor  and  materials. 

"  Cases  are  sometimes  put,  as  a  test  of  principles,  that  are  so  extreme  as  to  be  best 
disposed  of  by  the  application  of  the  familiar  rule,  De  minimis  non  curat  lex.  Thus 
the  example  of  an  attorney  employed  to  draw  a  deed,  is  dismissed  by  Blackburn,  J., 
in  Lee  v.  Griffin,  with  the  simple  remark  that  it  is  an  abuse  of  language  to  say  that 
the  paper  or  parchment  are  goods  sold  and  delivered.  So  if  a  man  send  a  button  or 
a  skein  of  silk  to  be  used  in  making  a  coat,  it  would  be  mere  trifling  to  say  that  he 
■was  part  owner  of  the  materials,  and  that  an  action  for  goods  sold  would  not  therefore 
lie  in  favor  of  the  tailor  who  furnished  the  garment.  Such  matters  cannot  be  con- 
sidered as  having  entered  into  the  contemplation  of  parties  when  contracting,  nor  as 
forming  any  real  part  of  the  consideration  for  the  mutual  stipulations."  —  Ed. 


SECT.    I.]  MIXER   V.    HOWARTH.  27 

ilazen  and  Cummins,  for  the  (Icfbiidant,  insisted  that  tlie  contract 
•was  substantially  a  sale ;  that  the  work  to  be  done  had  reference  to  the 
sale,  and  no  account  Avas  kept  of  the  labor  and  materials ;  and  that  as 
a  sale  the  contract  was  void  by  the  Statute  of  Frauds.  Revised  Stat., 
c.  74,  §  4;  Garbutt  v.  Watson,  5  Barn.  &  Aid.  613;  Atkinson  v.  Bell, 
8  Barn.  &  Cressw.  288;  St.  9  Geo.  4,  c.  14,  §  7 ;  Maberley  r.  Sheppard, 
10  Bingh.  99 ;  Dole  v.  Stimpson,  21  Pick.  384 ;  Rondeau  v.  Wyatt,  2  II. 
Bl.  66.  If  viewed  as  a  contract  for  labor  and  as  a  sale,  being  void  as 
to  the  sale,  it  is  wholly  void.  Chater  v.  Beckett,  7  T.  R.  201 ;  Loomis 
V.  Newhall,  15  Pick.  169. 

X.  Williams,  for  the  plaintiff,  argued  that  the  contract  was  not 
Avithin  the  statute.  Towers  v.  Osborne,  1  Str.  506;  Cooper  v.  Elston, 
7  T.  R.  16;  Groves  v.  Buck,  3  Maule  &  Selw.  178;  Crookshank  v. 
Burrell,  18  Johns.  R.  58;  Scwall  v.  Fitch,  8  Cowen,  215;  Eichelberger 
V.  M'Cauley,  5  Harr.  &  Johns.  214. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court.  The  first  question 
is,  whether  the  amendment  was  rightly  allowed.  The  original  count 
was  for  a  carriao-e  sold  and  delivered,  with  counts  for  labor  and  mate- 
rials,  etc.  And  in  the  specification  the  plaintiff  claimed  the  price  of 
the  carriage.  The  new  count  was  upon  an  agreement  by  the  defend- 
ant to  take  and  pay  for  a  carriage  to  be  built  by  his  order  and  request. 

The  court  are  of  opinion  that  these  were  for  the  same  substantive 
cause  of  action,  and  that  the  amendment  was  admissible  and  rightly 
allowed.  And  in  a  similar  case  recently  decided  in  England,  Bayley, 
J.,  stated  that  in  his  opinion  the  plaintiff  could  not  recover  as  for  goods 
sold,  because  the  property  had  not  passed ;  but  he  also  expressed  his 
opinion  that,  on  payment  of  costs,  the  nonsuit  ought  to  be  set  aside, 
and  the  plaintiff  allowed  to  amend  by  adding  counts  on  the  agreement 
and  for  not  accepting  the  goods.  Atkinson  v.  Bell,  8  Barn.  & 
Cressw.  277. 

But  the  main  question  is,  whether  this  contract  for  the  sale  of  the 
carriage  was  within  the  Statute  of  Frauds,  and  so  void  if  not  proved 
by  a  note  or  memorandum  in  writing.     Revised  Stat.,  c.  74,  §  4. 

It  is  very  clear,  wc  think,  that  by  this  contract  no  property  passed 
to  the  defendant.  The  carriage  contemplated  to  be  sold  by  the  plain- 
tifl'  to  the  defendant  did  not  then  exist.  It  was  to  be  constructed  from 
materials,  partly  wrought  indeed,  but  not  put  together.  It  was  there- 
fore essentially  an  agreement  by  the  defendant  Avith  the  plaintiff  to 
build  a  carriage  for  him,  and  on  his  part  to  take  it  Avhen  finished  and 
pay  for  it  at  an  agreed  or  at  the  reasonable  value.  This  is  a  valid 
contract  and  made  on  a  good  consideration,  and  therefore  binding  on 
the  defendant.  But  it  was  not  a  contract  of  sale,  \\  ithiu  the  meaning 
of  the  Statute  of  Frauds,  and  therefore  need  not  be  proved  by  a  note 
in  writing. 

When  the  contract  is  a  contract  of  sale,  cither  of  an  article  then 


28  SPENCEK   V.    CONE.  [CHAP.   I. 

existing,  or  of  articles  which  the  vendor  usually  has  for  sale  in  'the 
course  of  his  business,  the  statute  apjilies  to  the  contract,  as  well  where 
it  is  to  be  executed  at  a  future  time  as  where  it  is  to  be  executed 
immediately.  Cooper  v.  Elston,  7  T.  R.  14 ;  Sewall  u.  Fitch,  8  Cowen, 
215.  But  where  it  is  an  agreement  with  a  workman  to  put  materials 
together  and  construct  an  article  for  the  employer,  whether  at  an 
agreed  price  or  not,  though  in  common  parlance  it  may  be  called  a 
purchase  and  sale  of  the  article,  to  be  completed  in  futuro,  it  is  not  a 
sale  until  an  actual  or  constructive  delivery  and  accej^tance ;  and  the 
remedy  for  not  accej)ting  is  on  the  agreement. 

Judgment  on  the  verdict. 


THOMAS    H.    SPENCER    axd    A^-other    v.    ROGER    CONE 

AND    AnOTHEK. 

Supreme  Judicial  Court  of  Massachusetts,  September  Term, 

1840. 

[Reported  in  1  Metcalf,  283.] 

Assumpsit.  The  declaration  alleged,  and  the  evidence  at  the  trial 
tended  to  prove,  a  special  agreement  between  the  parties,  by  which  the 
plaintiffs  undertook  to  make  for  the  defendants  ten  stave  machines,  and 
find  the  materials  therefor,  for  the  price  of  $150  each,  to  be  paid  there- 
for by  the  defendants,  and  that  the  plaintiffs  made  and  tendered  the 
same  to  the  defendants,  who  refused  to  accept  or  pay  for  them.  Said 
agreement  not  being  in  writing,  the  defendants  objected  that  it  was 
within  the  Statute  of  Frauds ;  but  Wilde,  J.,  before  whom  the  trial 
was  had,  overruled  this  objection,  and  the  plaintiffs  obtained  a  verdict. 
The  defendants  alleged  exceptions  to  this  ruling. 

Sishojy  and  Sumner,  for  the  defendants,  referred  to  the  opinion  of 
Littledale,  J.,  in  the  case  of  Smith  v.  Surman,  9  Barn.  &  Cres.  573-575 ; 
and  to  Dole  v.  Stimpson,  21  Pick.  384. 

Byington,  for  the  plaintiffs,  relied  on  Mixer  v.  Howarth,  21  Pick.  205. 

Per  Curiam.  This  case  is  not  distinguishable  in  principle  from  that 
of  Mixer  v.  Howarth,  21  Pick.  205.  The  agreement  was  in  substance 
for  the  furnishing  of  labor  and  materials,  and  not  a  contract  of  sale. 
It  was  therefore  not  required  by  the  Statute  of  Frauds  (Rev.  Sts., 
c.  74,  §  4)  to  be  in  writing.  Judgment  on  the  verdict. 


SECT.   I.]  GARDNER   V.    JOY.  29 

CHARLES   F.   GARDNEK  and  Axother  v.  DAVID  JOY. 
Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1845. 

[Reported  in  9  Mctcalf,  177.] 

In  an  action  of  assumpsit,  the  plaintiffs  alleged,  in  the  first  count  in 
their  declaration,  that  the  defendant,  on  the  20th  of  April,  1843,  in 
consideration  that  the  plaintiffs  then  promised  him  to  pay  him  twenty 
one  cents  per  pomid  for  one  hundred  hoxes  of  good  merchantable 
sperm  candles,  each  box  to  contain  33^  pounds,  when  said  candles 
should  be  manufoctured  by  the  defendant  and  delivered  to  the  plain- 
tiffs, undertook  and  promised  the  plaintiffs  that  he  would  manufacture 
and  dehver  to  them  one  hundred  boxes  of  sucli  candles,  each  box  of 
the  weight  aforesaid,  and  that  the  same  should  be  manufictured  and 
delivered  to  them  in  the  summer  following,  viz.,  in  the  months  of  July 
and  August  then  next ;  that  the  plaintiffs  were  ready  to  receive  and 
pay  for  said  candles;  that  they  tendered  the  price  thereof  to  the 
defendant,  and  demanded  of  him  a  deUvery  thereof;  and  that  he 
refused  to  manufacture  and  deliver  them  to  the  plaintiffs. 

The  plaintiffs'  second  count  set  out  a  bargain,  on  the  same  20th  of 
April,  1843,  by  the  plaintiffs  w^ith  the  defendant,  to  buy  of  him,  and 
that  he  then  sold  to  them,  one  hundred  boxes  of  candles  (describing 
them  as  in  the  first  count),  to  be  delivered  by  the  defendant  during 
the   summer  following,  to  be  paid  for  by  the   plaintiffs   on  delivery 
thereof;  that  the  plaintiffs  had  always  been  ready  to  receive  and  pay 
for  said  candles  according  to  their  said  bargain ;  yet  that  the  defendant 
had  refused  to  deliver  said  candles  or  any  part  thereof  to  the  plaintiffs. 
The  trial  was  in  the  county  of  Nantucket,  before  Hubbard,  J.,  Avho 
made  the  following  report  thereof:  To  sustain  their  action,  the  plain- 
tiffs called  Edward  G.  Dillingham  as  a  witness,  who  testified  that  he 
was  present  at  a  conversation  betAveen  Gardner,  one  of  the  plaintlfts, 
and  Joy,  the  defendant ;  that  Gardner  asked  Joy  what  he  would  take 
for  candles,  and  he  said  twenty-one  cents ;  and  that  Gardner  said  he 
would  take  one  hundred  boxes  ;  and  the  witness  understood  that  the 
bargain  was  completed ;  that  the  precise  time  for  their  delivery  was 
not  stated ;  that  Joy  said  they  were  not  manufocturcd,  but  he  should 
or  would  manufacture  them  and  deliver  them  to  him  in  tlie  course  of 
the  Slimmer. 

The  plaintiffs  also  called  Nathaniel  Ruggles,  who  testified  that  he 
was  at  the  defendant's  house  in  the  autumn  of  1843,  and  asked  the 
defendant  when  the  bargain  was  made  between  him  and  Gardner;  and 
that  the  defendant,  on  examining  a  memorandum  book,  said  that  some 
time  in  April,  1843,  he  sold  Gardner  &  Cottle  (the  plaintiffs)  one  hun- 


30  GARDNER   V.    JOY.  [CHAP.    I. 

drecl  boxes  of  candles,  to  be  delivered  to  them  some  time  in  the  smn- 
mer,  at  twenty-one  cents  per  jDound. 

The  jury  Avere  instructed  that,  if  they  were  satisfied  that  there  Avas 
no  note  or  memorandum  in  writing  of  the  bargain,  signed  by  the  party 
to  be  charged  thereby,  the  action  could  not  be  sustained  upon  the  evi- 
dence, as  the  case  was  within  the  Statute  of  Frauds,  Rev.  Sts.,  c.  74, 
§  4 ;  that  this  was  a  contract  for  the  sale  and  delivery  of  goods,  and  not 
for  the  manufacture  and  sale  of  goods ;  and  that  it  would  have  been  a 
sufficient  comphance  with  the  contract,  if  the  defendant  had  been  ready 
and  offered  to  deliver  one  hundred  boxes  of  good  merchantable  sperm 
candles  of  33 J  pounds  to  the  box,  though  they  had  not  been  of  his  own 
manufacture.     A  verdict  was  returned  for  the  defendant. 

Judgment  to  be  entered  on  the  verdict,  if  the  said  instruction  was 
right ;  otherwise,  a  new  trial  to  be  ordered. 

Coffin,  for  the  plaintiffs. 

CoJby,  for  the  defendant. 

Shaw,  C.  J.  Difficult  questions  frequently  anse  under  the  clause,  in 
the  Statute  of  Frauds  (Rev.  Sts.,  c.  74,  §  4),  Avhich  provides  that  "  no 
contract  for  the  sale  of  any  goods,  wares,  or  merchandise,  for  the  price 
of  fifty  dollars  or  more,  shall  be  good  or  valid,  unless  "  (among  things 
not  material  in  this  case)  "  some  note  or  memorandum  in  writing  of 
the  bargain  be  made  and  signed  by  the  party  to  be  charged  thereby, 
or  by  some  person  thereunto  by  him  lawfully  authorized."  But  the 
difficulty  arises,  not  so  much  from  any  uncertainty  in  the  rule,  as  from 
the  infinitely  various  shades  of  different  contracts.  If  it  is  a  contract 
to  sell  and  deliver  goods,  whether  they  are  then  completed  or  not  it  is 
within  the  statiite.  But  if  it  is  a  contract  to  make  and  deliver  an 
article  or  quantity  of  goods,  it  is  not  within  the  statute.  Spencer 
V.  Cone,  1  Met.  283 ;  Mixer  v.  Howarth,  21  Pick.  205. 

In  the  present  case,  the  question  as  to  the  nature  and  terms  of  the 
contract  depends  on  the  testimony  of  one  witness,  who  testified  as  fol- 
lows :  [Here  the  Chief  Justice  recited  the  testimony  of  Dillingham,  as 
stated  in  the  report  of  the  trial.]  The  presiding  judge  instructed  the 
jury  that,  if  they  were  satisfied  that  there  was  no  note  or  memorandum 
in  Avriting  (a  fact  to  be  decided  by  them  on  tlie  evidence),  the  action 
could  not  be  sustained,  being  within  the  Statute  of  Frauds. 

The  court  are  of  opinion  that  this  instruction  was  right.  It  was 
essentially  a  contract  of  sale.  The  inquiry  Avas  for  the  price  of  candles ; 
the  quantity,  price,  and  terms  of  sale  were  fixed,  and  the  mode  in  which 
they  should  be  put  up.  The  only  reference  to  the  fact  that  they  Avere 
not  then  made  and  ready  for  delivery  was  in  regard  to  the  time  at 
which  they  would  be  ready  for  delivery ;  and  the  fact  that  they  Avere 
to  be  manufactm-ed  Avas  stated  as  an  indication  of  the  time  of  deliA'ery, 
which  was  otherwise  lefb  uncertain.  There  Avas  some  question  Avhether 
Joy  used  the  term  loould  or  should  manufacture  them  in  the  course  of 


SECT.    I.]  BENNETT    V.    HULL. 


31 


the  summer ;  but  the  meaning,  we  think,  is  the  same.  Whether,  after 
stipulating  for  tlic  terms  of  sale,  except  the  time,  the  question  was  at 
what  time  they  would  be  delivered,  and  he  said,  I  irill  manufacture 
them,  or  s/tall  manufacture  them,  in  the  course  of  the  summer ;  either 
would  be  the  annunciation  of  a  fact  indicating  and  fixing  the  time  of 
delivery.  The  case  seems  not  to  be  distinguishable  from  that  of  Gar- 
butt  V.  Watson,  5  Barn.  &  Aid.  613,  where  the  contract  by  the  plain- 
tiffs, who  were  millers,  Avas  for  the  sale  of  one  hundred  sacks  of  flour, 
to  be  got  ready  in  three  weeks,  the  flour  not  being  prepared  at  the 
time  so  as  to  be  capable  of  delivery.  It  was  held  to  be  a  contract  of 
sale,  and  within  the  statute.  Judgment  on  the  verdict} 


BENNETT  V.  HULL. 

Supreme  Court  of  New  York,  August  Term,  1813. 

[Reported  in  10  Johnson,  3G4.] 

In  error,  on  certiorari^  from  a  Justice's  Court.  Hull  sued  Bennett 
before  the  justice  for  a  breach  of  promise,  in  not  delivering  to  the 
plaintiff,  on  board  of  his  vessel,  100  ban-els  of  apples,  whenever  the 
vessel  should  be  ready  to  receive  them,  and  the  defendant  was  then  to 
receive  paJ^l'lent  in  liquors,  <fcc.,  out  of  the  plaintiff's  store.  It  was 
proved  that  the  plaintiff  gave  notice  to  the  defendant  when  the  vessel 
was  ready  to  receive  the  apples,  etc. 

The  justice  gave  judgment  for  the  plaintiff  for  twenty-five  dollars' 
damages. 

Per  Curiam.  Under  the  15th  section  of  our  Statute  of  Frauds 
(Sess.  10,  c.  44),  and  which  is  the  same  as  the  17th  section  of  the  Eng- 
Ush  statute,  no  contract  for  the  sale  of  goods,  unless  there  be  a  delivery 
of  part,  or  earnest  given,  or  a  note  or  memorandum  in  writing,  is  valid. 
Here  is  neither;  and  as  the  price  of  the  100  barrels  of  apples  is  pre- 
sumed to  have  been  above  twenty-five  dollars,  this  case  was  clearly 
within  the  Statute  of  Frauds.    The  statute  appUes  as  well  to  executory 

1  "  The  distinction,  we  believe,  is  now  well  understood.  When  a  person  stipulates 
for  the  future  sale  of  articles  which  he  is  habitually  making,  and  which  at  the  time  are 
not  made  or  finished,  it  is  essentially  a  contract  of  sale,  and  not  a  contract  lur  labor ; 
otherwise,  when  the  article  is  made  pursuant  to  the  agreement."  Shaw,  C.  J.,  Lamb 
V.  Crafts,  12  Met.  353,  35G.  And  see  Waterman  v.  Meigs,  4  Cush.  497  ;  Courtright  r. 
Stewart,  19  Barb.  455 ;  Parker  i-.  Schenck,  28  Barb.  38 ;  Mead  v.  Case,  33  Barb.  202 ; 
Parsons  v.  Loucks,  4  Kob.  (N.  Y.),  21G  ;  Atwater  v.  Hough,  29  Conn.  508 ;  Hight  i-. 
Ripley,  19  Maine,  139 ;  Abbott  v.  Gilchrist,  38  Maine,  2G0 ;  Edwards  v.  Grand  Trunk 
Railway  Co.,  48  Maine,  379,  54  Id.  105;  Finney  r.  Apgar,  2  Vroom  (N.  J.),  2GG  ; 
Bird  V.  Muhliubrink,  1  Rich.  (So.  Car.)  199;  Cason  v.  Cheely,  6  Geo.  554.— Ed. 


32  CROOKSHANK    V.   BURRELL.  [CHAP.    I. 

as  to  other  contracts ;  and  the  decisions  of  the  English  courts  on  this 
point,  in  Rondeau  v.  Wyatt,  2  H.  Bl.  63,  and  in  Cooper  v.  Elston, 
7  Term  Rep.  14,  contain  the  sound  and  just  construction  of  the 
statute.  Judgment  reversed} 


CROOKSHANK  v.  BURRELL. 
Supreme  Court  of  New  York,  May  Term,  1820. 

[Reported  in  18  Johnson,  58.] 

In  error,  on  certioixiri  to  a  Justice's  Court.  B.  declared  against  C. 
before  the  justice  on  a  contract  between  him  and  the  defendant, 
whereby  it  was  agreed  that  B.  should  make  the  wood-work  of  a  wagon, 
AYhich  the  defendant  was  to  pay  for  in  lambs  at  one  dollar  a  head. 
The  plaintiff  claimed  twenty-five  dollars.  The  agreement  was  proved, 
and  that  the  plaintiff  had  made  the  wagon  within  the  period  limited. 
It  was  also  proved  that  the  defendant  was  to  come  for  the  wagon, 
and  pay  for  it  in  lambs  at  one  dollar  apiece.  The  judgment  was  for 
twenty-four  dollars  and  ninety-four  cents,  the  plaintiff  having  remitted 
six  cents;  and  the  objections  were:  first,  that  the  contract  Avas  within 
the  Statute  of  Frauds ;  second,  that  the  plaintiff  ought  to  have  tendered 
the  wagon. 

Spencer,  C.  J.,  delivered  the  opinion  of  the  court.  It  noAvhere 
appears  that  the  value  of  the  wagon  or  the  price  of  it  Avas  ten  pounds 
or  upwards.  The  plaintiff  claimed  to  recover  twenty-five  dollars ;  but 
this  does  not  denote  the  price  of  the  Avagon,  and  it  is  mere  matter  of 
form.  But,  admitting  that  the  price  agreed  on  was  twenty-five  dollars, 
still  it  Avould  not  be  a  case  Avithin  the  statute.  In  Bennett  v.  Hidl,  10 
Johns.  Rep.  364,  we  decided  that  the  statute  applied  to  executory  as 
well  as  other  contracts;  and  Ave  recognized  the  cases  of  Rondeau 
V.  Wyatt,  2  H.  Bl.  63,  and  Cooper  v.  Elston,  7  Term  Rep.  14,  as  con- 
taining a  just  and  sound  construction  of  the  statute.  In  giving 
the  opinions  in  those  cases,  the  judges  referred  to  the  case  of  Towers 
V.  Osborne,  Str.  506,  with  approbation.  In  that  case,  the  defendant 
bespoke  a  chariot,  and  after  it  w^as  made  for  him  refused  to  take 
it ;  and  Pratt,  C.  J.,  ruled  that  it  Avas  not  a  case  within  the  statute. 
In  Clayton  v.  AndrcAVS,  4  Burr.  2101,  it  was  decided  that  an  agree- 
ment to  deliver  Avheat,  understood  to  be  unthrashed,  was  not  Avithin 
the  statiite.  The  distinction  taken  by  Lord  Loughborough  in  Rondeau 
V.  Wyatt,  and  by  the  judges  who  gave  opinions  seriatim  in  Cooper 

1  See  Ide  v.  Stanton,  15  Vt.  685;  Carman  v.  Smith,  3  Green  (N.  J.),  252;  Jackson 
V.  Covert,  5  Wend.  139,  ace.  —  Ed. 


SECT.    I.]  SEWALL   V.    FITCH.  33 

V.  Elston,  was  between  a  contract  for  a  thing  existing  in  solido,  and  an 
agreement  for  a  thing  not  yet  made,  to  be  delivered  at  a  future  day. 
The  contract  in  the  latter  case  they  considex'cd  not  to  be  a  contract  for 
the  sale  and  purchase  of  goods,  but  a  contract  for  work  and  labor 
merely.  IIowcA-er  refined  this  distinction  may  be,  it  is  well  settled,  and 
it  is  now  too  late  to  question  it. 

It  appears  that  the  defendant  was  to  come  after  the  wagon,  and 
that  it  was  completed  at  the  time  agreed  upon.  It  is  necessarily  to  be 
inferred  that,  when  he  came  for  the  wagon,  he  was  to  pay  for  it  in  the 
mode  agreed  upon ;  and  of  course  he  was  to  drive  his  lambs  to  the 
plaintiff.     We  are  of  opinion  that  the  judgment  mi;st  be  affirmed. 

Judgment  affirmed. 


SEWALL  AXD    SEWALL   v.  FITCH  and  GOODWIN. 

Supreme  Court  op  New  York,  February  Term,  1828. 

\Tieported  in  8  Cowcn,  215.] 

Assumpsit  to  recover  damages  for  not  delivering  a  quantity  of  cut 
nails  to  the  plaintiffs,  pursuant  to  the  defendants'  agreement. 

The  cause  was  tried  at  the  New  York  circuit,  March  25, 1826,  before 
Duer,  Circuit  Judge,  who  sealed  a  bill  of  exceptions  at  the  request 
of  the  defendants,  presenting  the  following  facts :  — 

Greele,  a  commission  merchant,  not  a  broker,  the  authorized  agent  of 
the  plaintiffs,  but  Avithout  disclosing  their  names,  contracted  for  300 
casks  of  Thames  manufactory  cut  nails,  at  5^  cents  per  pound,  Avith 
a  clerk  of  the  defendants,  in  February,  1825.  The  clerk  told  him  the 
quantity  Avas  not  then  on  hand,  but  that  they  could  be  soon  knocked 
off  or  made,  and  be  obtained  from  the  manufactory  at  Norwich,  in  the 
State  of  Connecticut,  on  the  opening  of  the  navigation.  Greele  told 
the  clerk  he  wanted  the  nails  to  supply  an  order.  .  .  } 

The  defendants  having  moved  for  a  nonsuit,  the  judge  denied  the 
motion,  and  the  defendants  excepted. 

A  verdict  having  been  rendered  for  the  plaintiffs,  the  defendants 
now  moved  for  a  new  trial. 

H.  VT.  Warner^  for  the  motion. 

J.  Piatt,  contra. 

Curia,  per  Savage,  C.  J.  The  contract  was  not  for  the  sale  of  goods 
then  in  solido;  but  for  work  and  labor,  in  part,  in  the  making  of  the 
articles  to  be  delivered.    A  distinction  in  such  cases  is  well  settled,  both 

^  The  report  of  this  case  has  been  modified  by  the  omission  of  irrelevant  matter. 
—  Ed. 

VOL.  I.  3 


34  DOWNS  V.  ROSS.  [chap.  I. 

in  England  and  in  this  State.  Formei-ly  the  King's  Bench  held  that 
the  statute  did  not  apply  to  executory  contracts.  Towers  v.  Osborne, 
1  Str.  506;  Clayton  v.  Andrews,  4  Burr.  2101.  In  neither  of  those 
cases,  however,  was  it  necessary  to  rely  upon  such  a  jirinciple.  The 
first  was  for  a  coach  to  be  made  ;  and  the  second  for  grain  yet  to  be 
thrashed.  So  that  those  cases  were  rightly  detennined,  though  upon  a 
wrong  principle,  as  has  since  been  held  both  by  the  Common  Pleas  and 
Kng's  Bench.  In  Rondeau  v.  Wyatt,  2  H.  Bl.  63,  Lord  Loughbor- 
ough said :  "  The  case  of  Towers  v.  Osborne,  1  Str.  506,  was  j^lainly 
out  of  the  statute,  not  because  it  was  an  executory  contract,  as  it  has 
been  said,  but  because  it  was  for  work  and  labor  to  be  done,  and  mate- 
rials and  other  necessary  things  to  be  found,  which  is  different  from  a 
mere  contract  of  sale,  to  which  sj^ecies  of  contract  alone  the  statute  is 
ai^plicable."  The  same  point  was  so  decided  in  Cooper  v.  Elston,  7  T. 
R.  14,  where  the  King's  Bench  adopt  Rondeau  v.  Wyatt  as  sound 
law,  admitting  the  distinction  there  taken. 

The  principle  of  these  two  cases  has  been  adopted  by  this  court  in 
Bennett  v.  Hull,  10  John.  364,  and  Crookshank  v.  Burrell,  18  John. 
58.  The  contract  in  this  case  was  for  the  delivery  of  nails  thereafter 
to  be  manufactured.  It  was  therefore  a  contract,  within  the  decisions 
cited,  for  work  and  labor  and  materials  found,  and  so  out  of  the  statute.^ 

New  trial  denied. 


DOWNS  AXD    SKILLINGER  v.  ROSS. 
Supreme  Court  of  New  York,  May  Term,  1840. 

\Beponed  in  23  Wendell,  270.] 

This  was  an  action  of  assumpsit  to  recover  damages  for  not  deliv- 
ering wheat  pursuant  to  contract,  tried  at  the  Chemung  circuit  in 
October,  1837,  before  the  Hon.  Robert  Monell,  one  of  the  Circuit 
Judges. 

A  witness  for  the  plaintiffs  testified  that  he  was  the  plaintiffs'  agent 
for  the  i:»urchase  of  wheat.  On  the  30tli  August,  1836,  he  called  on 
the  defendant,  who  resided  in  Elmira,  to  purchase  his  wheat.  The 
defendant  had  some  wheat  in  his  granary,  and  was  then  thrashing 
more.  There  were  about  250  bushels  in  the  granary.  A  contract  was 
finally  made  for  700  or  800  bushels  at  ten  shillings  per  bushel,  which 
the  defendant  agreed  to  deliver  by  the  5th  of  September  then  next,  at 

1  Reluctantly  followed  in  Robertson  i'.  Vaughn,  5  Sandf.  1.  Also  followed  in  Don- 
ovan V.  Willson,  26  Barb.  138.  —  Ed. 


SECT.    I.]  DOWNS   V.   ROSS.  35 

Westlakc's  basin,  on  the  Chemung  canal  feeder.  The  defendant  said 
he  could  not  get  more  wheat  ready  by  that  time,  though  he  had  more. 
The  wheat  was  to  be  paid  for  on  delivery.  The  thrashed  wheat  in  the 
granary  was  not  Avcll  cleaned,  and  the  defendant  said  he  would  clean 
it  over.  This  was  a  part  of  the  wheat  whicli  tlie  defendant  agreed  to 
sell.  There  was  no  writing,  no  money  paid,  and  no  part  was  delivered. 
The  defendant  afterwards  refused  to  go  on  with  the  contract,  and  this 
action  Avas  brought  to  recover  damages ;  the  wheat  on  the  day  for 
delivery  being  worth  more  than  the  contract  price.  The  defendant 
moved  for  a  nonsuit  on  the  ground  that  the  contract,  either  in  whole 
or  in  part,  was  within  the  Statute  of  Frauds  and  void.  Tlie  non- 
suit was  denied.  After  much  contradictory  evidence  about  what  the 
verbal  agreement  was,  and  evidence  tending  to  prove  fraud  on  the  part 
of  the  plaintiffs'  agent,  those  questions  of  fact  were  left  to  the  jury. 
The  judge  charged  the  jury  that  the  contract  was  not  Avithin  the 
Statute  of  Frauds ;  that  where  something  was  yet  to  be  done,  some 
labor  to  be  performed  to  prepare  the  goods  for  delivery,  the  contract 
was  more  properly  for  work  and  labor  than  for  goods  sold.  Verdict 
for  plaintiffs  8109.37,  which  the  defendant  now  moves  to  set  aside. 

J.  A.  Spencer^  for  defendant. 

S.  Stevens^  for  plaintiffs. 

After  advisement  the  following  opinion  was  delivered  :  — 

By  Bkonson,  J.  N"o  part  of  the  purchase  money  was  paid,  none  of 
the  property  was  delivered,  and  there  was  no  writing  between  the 
parties.  If  then  this  was  a  contract  for  the  sale  of  goods,  the  statute 
declares  it  void.  2  R.  S.  136,  §  3.  The  substance  of  the  transaction 
may  be  stated  in  a  few  words.  The  mercliant  or  miller  went  to  the 
farmer  to  purchase  his  wheat,  a  part  of  which  was  already  thrashed 
and  in  the  granary,  and  the  residue  was  in  a  course  of  preparation  for 
market.  The  farmer  said  he  would  clean  over  again  that  which  was  in 
the  granary,  continue  thrashing  that  Avhich  was  still  in  the  straw,  and 
within  six  days  would  be  ready  to  deliver  seven  or  eight  hundred 
bushels.  A  contract  was  concluded  for  the  purchase  of  that  quantity, 
to  be  delivered  by  a  specified  day,  and  to  be  paid  for  on  delivery.  Iti 
still  fewer  words,  defendant  sold  his  wheat,  and  agreed  to  deliver  it  in 
a  merchantable  condition.  It  is  said  that  this  was,  either  in  whole  or 
in  part,  a  contract  for  work  and  labor,  and  so  not  Avithin  the  statute. 
But  I  think  it  was  neither  more  nor  less  than  a  contract  of  sale;  and  if 
we  are  not  tied  down  by  the  commentaries  Avith  which  the  Statute  of 
Frauds  has  been  so  heavily  overlaid,  the  agreement  must  be  declared 
void. 

It  is  not  to  be  denied  that  a  pretty  large  license  Avas  formerly  taken 
in  the  construction  of  statutes.  Refined  and  artificial  distinctions 
were  sometimes  sanctioned  for  the  purpose  of  taking  cases  out  of  tlie 
operation  of  legislative  enactments,  and  a  broad  foundation  Avas  thus 


36  DOWNS  V.  ROSS.  [chap.  I. 

laid  for  the  vast  amount  of  legal  controversy  which  has  followed.  It 
was  said  at  Westminster  Hall,  more  than  seventy  years  ago,  that  the 
Statute  of  Frauds  had  not  been  explained  at  a  less  expense  than  one 
hundred  thousand  pounds  sterling ;  and  Chancellor  Kent,  at  the  time 
he  wrote  his  commentaries,  thought  the  sum  might  then  be  put  down 
at  a  million  and  upwards.  2  Kent's  Comm.  513,  note.  These  are  both 
very  safe  estimates,  and  still  the  statute  is  not  yet  "  explained ;  "  and  it 
never  will  be,  so  long  as  it  is  held  that  a  pi'omise  by  the  seller  to 
thrash  his  grain,  or  to  blow  the  chaff"  out  of  a  bin  of  wheat  before 
sending  it  to  market,  changes  the  contract  of  sale  into  an  agreement 
for  work  and  labor.  Whatever  may  be  the  bearing  of  the  earlier 
cases,  the  more  recent  decisions  will  not  lead  us  into  any  such  absurd- 
ity. If  the  thing  sold  exist  at  the  time  m  solido,  the  mere  fact  that 
something  remains  to  be  done  to  put  it  in  a  marketable  condition  will 
not  take  the  contract  out  of  the  operation  of  the  statute. 

In  Towers  v.  Osborne,  1  Strange,  506,  it  was  held  by  Pratt,  C.  J., 
that  the  contract  was  not  within  the  statute,  because  there  was  not  to 
be  an  immediate  delivery  of  the  goods.  This  decision  was  followed  by 
Lord  Mansfield  in  Clayton  v.  Andrew;?,  4  Burr.  2101.  But  the  doc- 
trine that  the  statute  does  not  apply  to  executory  contracts  was  entirely 
exploded  in  Rondeau  v.  Wyatt,  2  H.  Black,  63 ;  and  that  case  has  been 
followed  ever  since.  Cooper  v.  Elston,  7  T.  R.  14 ;  Bennett  v.  Hull,  10 
Johns.  R.  364;  Jackson  v.  Covert,  5  Wendell,  139.  The  statute  has 
little  to  do  with  any  other  than  executory  contracts,  and  it  might 
better  be  repealed  than  to  say  that  such  agreements  are  not  within  its 
influence. 

The  fact  that  the  defendant  was  to  deliver  the  wheat  at  another 
place,  which  probably  enhanced  the  price  which  he  was  to  receive, 
cannot  aid  the  plaintiffs'  case.  Astey  v.  Emery,  4  Maule  &  Selw.  262. 
The  same  fict  will  be  found  to  have  existed  in  many  other  cases  ;  but 
it  has  never  been  held  a  sufficient  ground  for  taking  the  contract  out 
of  the  operation  of  the  statute. 

Nothing  remains  but  the  fact  that  the  wheat,  though  in  existence, 
was  not  completely  prepared  for  market  at  the  time  the  contract  was 
made.  The  cases  to  which  we  have  been  referred  on  this  point  wdll 
not  answer  the  plaintiffs'  purpose.  With  a  single  exception,  they  all 
relate  to  contracts  for  the  sale  of  a  thing  not  then  in  existence,  but 
which  was  to  be  constructed  or  manufactured  by  the  vendor.  In 
Towers  v.  Osborne,  1  Strange,  506,  the  chariot  Avhich  the  defendant 
bespoke  was  not  yet  made.  So  of  the  oak  pins,  in  Groves  v.  Buck,  3 
Maule  &  Selw.  178  ;  the  wagon,  in  Crookshank  v.  Burrell,  18  Johns. 
R.  58  ;  the  buggy,  in  Mixer  v.  Howarth,  21  Pick.  205 ;  and  the  nails, 
in  Sewall  v.  Fitch,  8  Cowen,  215.  These  decisions,  whether  right  or 
wrong,  cannot  affect  the  present  question. 

The  only  case  which  can  aid  the  plaintiff's  is  Clayton  v.  Andrews,  4 


SECT.    I.]  DOWNS   V.   ROSS.  37 

Burr.  2101,  where  it  was  held  that  a  contract  for  the  sale  of  unthrashed 
wheat,  to  be  delivered   at  a  future  day,  was  not  within  the  statute. 
The  decision  went  upon  the  ground  that  the  statute  did  not  apply  to 
executory  contracts ;  and  although  that  doctrine  was  expressly  over- 
ruled in  Rondeau  v.  Wyatt,  2  H.  Black.  63,  Avhich  has  ever  since  hecn 
followed,  yet  such  was  the  deference  for  the  opinions  of  Lord  ^Mansfield 
that  the  courts  struggled  for  a  time  to  find  out  some  other  ground  on 
which   the   decision   could   be   supported.       Lord   Loughborough   in 
Rondeau  v.  Wyatt  said :   "  There  w^as  some  work  to  be  performed,  for 
it  was  necessary  that  the  corn  should  be  thrashed  before  the  delivery ; " 
but  he  was  forced  to  admit  that  this  was  a  "  nice  distinction."     It  was 
indeed  so  "nice"  that  it  did  not  occur  to  the  mind  of  Lord  Mansfield 
in  making  the  decision,  and  has  never,  I  believe,  been  sanctioned  by 
any  case  in  AVestminster  Hall.     But  on  the  contrary,  when  it  became 
necessary  to  pass   upon  the   point,  the    distinction  Avas   pronounced 
absurd ;  and  the  case  of  Clayton  v.  Andrews,  in  every  possible  view  of 
it,  was  expressly  overruled.     Garbutt  v.  Watson,  1  D.  &  R.  210,  and  5 
B.  &  Aid.  613,  s.  o.     The  defendant  agreed  by  parol  for  the  purchase 
of  300  sacks  of  flour,  not  then  ground,  to  be  prepared  and  shipped  at  a 
fiiture   day.      All  the  judges   agreed  that  the   case    of   Clayton   v. 
Andrews  could   not  be  supported,  and  held  that  the  contract  was 
within   the  statute.     Best,  J.,  said  it  was  "purely  a  contract  for  the 
sale  of  goods.     It  is  absurd  to  consider  it  as  a  contract  for  the  sale  of 
flour,  and  for  so  much  work  and  labor  to  be  performed  for  the  buyer. 
It  is  no  more  than  a  contract  for  the  sale  of  so  much  flour,  the  seller 
undertaking  to  put  it  into  that  condition  in  which  he  contracts  to  sell 
it."     This  is  a  stronger  case  than  the  one  at  bar,  for  the  flour  had  not 
been  manufactured  —  it  did  not  exist  at  the  time  of  making  the  con- 
ti-act.     This  decision  was  followed  up  by  Smith  v.  Surman,  4  Man.  & 
Ryl.  455,  and  9  Barn.  &  Cress.  561,  s.  c.     The  defendant  agreed  to 
purchase  a  quantity  of  timber  of  the  plaintiff;  and  the  contract  was 
held  within  the  statute,  although  a  part  of  the  trees  were  standing  at 
the  time  of  the  bargain,  and  w^ere  afterwards  to  be  cut  by  the  vendor. 
Bayley,  J.,  denied  that  it  was  "  a  mixed  contract  for  goods  and  chattels, 
and  for  work  and  labor  to  be  bestowed  and  performed"  by  the  vendor 
for  the  vendee.     He  said  it  was  "  a  contract  for  the  future  sale  of  the 
timber,  Avhen  it  should  be  in  a  fit  state  for  delivery.     The  vendor,  in 
felling  the  timber  and  preparing  it  for  delivery,  was  in  my  oi)inion 
doimr  work  for  himself,  and  not  for  tlie  vendee."     Littledale,  J.,  said  : 
"  A  contract  for  mere  Avork  and  lal)or  is  not  expressly  mentioned,  and 
may  therefore  not  be  within  the  statute ;  but  Avhere  the  contracting 
parties  contemplate  a  sale  of  goods,  although  the  subject-matter  at  the 
time  of  making  the  contract  may  not  exist  as  goods,  but  is  to  be 
wrought  into  that   state   by  the  vendors  bestowing  work  and  labor 
upon  his  raw  materials,  that  in  my  opinion  is  a  case  within  the  stat- 


38  DOWNS  V.  ROSS.  [chap.  I. 

ute."  He  added  :  "  It  appears  to  me  to  be  sufficient  if,  at  the  time  of 
the  completion  of  the  contract,  the  snbject-matter  be  goods,  wares,  and 
merchandises."  In  Watts  v.  Friend,  5  Man.  &  Ryh  439,  and  10  Barn. 
&  Cres.  446,  s.  c,  the  contract  was  for  the  sale  of  a  crop  to  be  raised, 
the  seed  not  having  yet  been  put  into  the  ground,  and  it  was  held 
void  within  the  statute  for  not  being  in  writing. 

These  cases  show  that  the  English  courts  have  got  back  again  on  to 
the  firm  foundation  of  reason  and  common  sense.  The  Statute  of 
Frauds  is  no  longer  a  dead  letter.  We  have  never  followed  the  case 
of  Clayton  v.  Andrews,  and  have  therefore  no  occasion  for  retracing 
our  steps.  Whether  the  decision  in  Sewall  v.  Fitch,  8  Cowen,  215, 
can  be  supported,  is  a  question  which  need  not  now  be  considered.  It 
is  enough  for  the  present  that  it  is  not  a  case  in  point. 

The  Chief  Justice  concurred. 

Cowen,  J.,  dissented,  and  delivered  the  following  opinion :  — 

It  is  entirely  clear,  on  the  cases  decided  by  this  court,  that  the  con- 
tract in  question  is  without  the  Statute  of  Frauds.  Sewall  v.  Fitch,  8 
Cowen,  215,  219,  and  the  cases  there  cited;  2  Kent's  Comm.  511,  512, 
note  f?,  3d  ed.  The  wheat  was  none  of  it  in  a  condition  for  transpor- 
tation and  delivery.  Most  of  it  was  unthrashed,  and  that  in  the  bin 
was  to  be  cleaned.  The  contract  was  in  part  for  work  and  labor  in 
finishing  the  preparation  of  the  whole,  which  both  the  English  and 
New  York  cases  denied,  until  very  lately,  to  be  a  sale  of  goods  within 
the  meaning  of  the  Statute  of  Frauds.  That  statute  respects  a  sale. 
The  cases  said  it  meant  a  sale  unmixed  with  a  contract  of  labor  in  pre- 
l^aring  an  article  for  delivery.  I  admit  that  the  mere  circumstance  of 
agreeing  to  transport  and  deliver  will  not  take  away  the  chai'acter  of  a 
simple  sale.  Jackson  v.  Covert's  Admrs.,  5  Wendell,  139 ;  Astey  v. 
Emery,  4  Maule  &  Selw.  262.  Nor  do  I  deny  that,  were  the  question 
open,  a  contract  to  manuficture  and  sell  would  more  correctly  be  con- 
sidered a  sale  within  the  statute.  But  I  am  not  prepared  to  concede 
that  the  decisions  for  more  than  half  a  century,  both  at  Westminster 
Hall  and  in  this  State,  are  so  obviously  absurd  that  we  ought  now  to 
overturn  them.  It  is  true  that  the  King's  Bench  have  recently,  a.  d. 
1822,  repudiated  the  case  of  Clayton  v.  Andrews,  1767,  after  so  long 
acting  upon  it  (and  the  Common  Pleas  too)  as  having  settled  the 
doctrine  of  the  very  case  at  bar,  a  sale  of  wheat  understood  by  both 
parties  to  be  unthrashed.  Garbutt  v.  Watson,  1  Dowl.  &  Ryl.  219;  5 
Barn.  &  Aid.  613,  s.  c,  followed  by  Smith  v.  Surman,  4  Mann.  &  Ryl. 
455,  9  Barn.  &  Cress.  561 ;  and  see  Watts  v.  Friend,  5  Mann.  &  Ryl. 
439,  and  the  cases  there  cited;  10  Barn.  &  Cress.  446,  s.  c.  Best,  J., 
in  Garbutt  v  Watson,  chose  to  characterize  former  adjudications  of  his 
court  as  absurd.  We  have  not  heretofore  deemed  them  so;  and  if 
there  be  the  least  obligation  to  abide  by  rule  founded  on  a  settled 
course  of  decision,  the  case  in  which  he  was  taking  part  is  not  law.     I 


SECT.    I.]  EICHELBERGEU   V.    m'CAULEY.  39 

think  there  is  such  an  obligation.  The  principle  of  the  rule  existed, 
and  was  acted  upon  in  England  from  the  year  1720.  It  was  then  held 
in  Towers  v.  Osborne,  1  Strange,  506,  and  Clayton  v.  Andrews  pro- 
ceeded upon  that. 

It  will  be  perceived  that  I  have  treated  the  second  objection  taken 
at  the  trial  as  unfounded  in  point  of  fact.  If  the  wheat  in  the  bin  had 
been  cleaned,  the  contract  for  so  much  would  have  been  void ;  and  it 
would  have  followed,  according  to  the  settled  doctrine  in  respect  to 
such  contracts,  that  the  whole  would  have  been  void,  and  the  judge 
should  have  nonsuited  the  plaintiff.  Thayer  v.  Rock,  13  Wendell,  53, 
and  the  books  there  cited.  But  I  take  the  principle  of  the  former 
English  cases,  and  all  the  cases  in  this  court,  to  be  that  where  the  arti- 
cle which  forms  the  subject  of  sale  is  understood  by  the  parties  to  be 
defective  in  any  particular  which  demands  the  finishing  labor  of  the 
vendor  in  order  to  satisfy  the  bargain,  it  is  a  contract  for  work  and 
labor,  and  not  of  sale,  within  the  meaning  of  the  statute.  2  Kent's 
Comm.  512,  note,  3d  ed.  The  judge  told  the  jury  so,  and  they  found 
the  fact. 

This  construction  of  the  Statute  of  Frauds  (see  the  same  note)  has 
been  corrected  by  the  stat.  9  Geo.  4,  c.  14,  which  extends  it  to  unfin- 
ished articles;  a  method  which  I  must  be  allowed  to  think  much  more 
accordant  with  sound  legal  sense,  than  that  which  was  undertaken  in 
Garbutt  v.  Watson.  A'eio  trial  rjranUd. 


EICHELBERGER  v.  M'CAULEY. 

Court  of  Appeals  of  Maryland,  June  Terji,  1821. 

[Reported  In  5  Harris  ^-  Johnson,  213.] 

Appeal  from  Washington  County  Court.  Assumpsit  to  recover  dam- 
ages for  the  violation  of  a  contract  of  the  defendant  to  deliver  a  quan- 
tity of  wheat  to  the  plaintifl"  at  a  particular  day.  The  facts  are  fully 
stated  in  the  court's  opinion.  The  opinion  of  the  court  below 
(Buchanan,  C.  J.,  and  T.  Buchanan,  A.  J.)  was  against  the  plaint ift';  and 
the  verdict  and  judgment  being  also  against  him,  he  prosecuted  the 
present  apjieal.  The  case  of  Bryan  v.  M'Eldery,  involving  the  same 
question  as  the  present  case,  was  also  pending  in  this  court  at  the  pres- 
ent term,  on  an  appeal  from  Prince  George's  County  Court.  In  this 
last  case  the  court  below  (Johnson,  C.  J.)  gave  an  opinion  in  favor  of 
the  plaintiff"  there  (the  appellee  here)  ;  and  the  verdict  and  judgment 
being  for  him,  the  defendant  appealed. 

The  present  case  was  argued  in  this  court  at  June  term  last,  before 
Eakle,  Joii>'sox,  and  Doksey,  JJ. 


40  EICHELBERGER   V.    M'CAULEY.  [CHAP.    I. 

H.  Johnson  and  Schley^  for  the  appellant,  referred  to  the  Statute  of 
Frauds,  29  Car.  2,  c.  3,  §  17 ;  Towers  v.  Osborne,  1  Stra.  506;  Clay- 
ton V.  Andrews,  4  Burr.  2101 ;  Rondeau  v.  Wyatt,  2  H.  Blk.  63 ;  Alex- 
ander V.  Comber,  1  H.  Blk.  20 ;  Cooper  v.  Elston,  7  T.  R.  14 ;  1  Com.  on 
Cont.  93;  Rob.  on  Frauds,  iii.  172,  173;  Egerton  v.  Matthews,  6  East, 
808,  note;  and  Groves  v.  Buck,  3  Maule  &  Selw,  179. 

Taney  and  Magruder,  for  the  apj^ellee,  cited  Davis  &  Buckey  v. 
Harding,  in  this  court  at  June  term,  1816;  and  Newman  v.  Morris,  4 
Harr.  &  M'Hen.  421.  Cur.  adv.  vult. 

At  this  term  the  opinion  of  the  court  was  delivered  by 
Earle,  J.  The  facts  of  this  case  appear  as  follows :  On  the  14th  of 
November,  1816,  M'Cauley  entered  into  a  verbal  contract  with  Eichel- 
berger  to  deliver  to  him  800  bushels  of  wheat,  which  was  then  unthrashed 
and  in  the  straw,  and  so  understood  between  the  parties,  by  or  before 
the  Christmas  following,  if  the  weather  would  admit  of  the  said  Avheat 
being  got  out  by  that  time,  for  which  Eichelberger  was  to  pay  at  the 
rate  and  price  of  one  dollar  and  sixty-five  cents  per  bvishel  on  the 
delivery,  and  give  M'Cauley  the  offal  thereof  The  weather  did  admit 
of  the  wheat  being  thrashed  out  by  or  before  Christmas,  but  M'Cauley 
neglected  to  deliver  the  same  or  any  part  thereof  Such  being  the 
facts  in  the  case,  and  it  being  admitted  that  Eichelberger  accepted  no 
part  of  the  grain  so  sold,  nor  actually  received  the  same,  nor  gave  any 
thing  in  earnest  to  bind  the  bargain  or  in  part  payment,  and  that  no 
note  or  memorandum  in  writing  was  signed  by  the  parties  or  their 
agents  thereto  lawfully  authorized,  the  court  beloAV  was  called  upon  to 
decide  whether  this  Avas  a  case  within  the  operation  of  the  Statute  of 
Frauds  and  Perjuries,  and  having  exjiressed  an  opinion  to  that  effect, 
it  has  become  the  duty  of  this  court  to  revise  the  opinion,  and  correct 
it  if  erroneous. 

Since  the  adjudication  of  Rondeau  and  Wyatt  by  Lord  Loughbor- 
ough in  the  year  1792,  it  has  been  considered  established  law  that  ver- 
bal execvitory  contracts  for  the  sale  of  goods,  wares,  and  merchandises, 
where  no  part  of  the  goods  sold  has  been  accej^ted  or  received  by  the 
buyer,  nor  any  thing  has  been  given  by  him  in  earnest  to  bind  the  bar- 
gain or  in  part  payment,  and  where  no  note  or  memorandum  of  the 
bargain  has  been  signed  by  the  parties  or  their  agents  thereto  lawfully 
authorized,  are  within  the  operation  of  the  statute  and  are  void.  The 
contract  here  being  of  this  character,  to  be  pei'formed  at  a  future  time, 
and  in  its  nature  executory,  is  avoided  by  the  statute,  unless  there  are 
circumstances  in  it  to  distinguish  it  from  ordinary  executory  contracts. 
It  is  alleged  there  are  such  circumstances,  and  that  the  wheat  being 
unthrashed  and  in  the  straw  at  the  time  of  the  bargain,  and  work  and 
labor  being  necessary  to  prepare  it  for  delivery,  it  is  not  a  sale  of  goods, 
wares,  and  merchandise,  within  the  meaning  of  the  17th  section  of 
this  statute. 


SECT.   I.]  EICHELBERGER   V.    M'CAULEY.  41 

Whatever  opinion  may  be  entertained  of  the  true  meaning  of  the 
17th  section  of  the  statute,  the  court  think  the  distinction  between 
mere  contracts  of  sale  of  goods,  and  those  contracts  for  the  sale 
of  goods  where  work  and  labor  is  to  be  bestowed  on  them  previ- 
ous to  delivery,  and  sulyccts  are  blended  together,  some  of  Avliich  are 
not  in  the  contemplation  of  the  statute,  has  too  long  ]>revailed  to  be 
at  this  day  questioned.  It  is  enforced  by  Lord  Loughborough  in  the 
before-mentioned  case  of  Rondeau  and  Wyatt,  and  has  since  been 
acted  on  by  several  most  respectable  judges.  The  case  of  Clayton  v. 
Andrews,  decided  by  Lord  Mansfield  in  17G7,  a  case  in  all  its  circura- 
Rtances  exactly  parallel  with  the  present,  has  been  used  as  an  authority  . 
upon  this  distinction.  It  is  said  to  be  a  case  without  the  statute, 
because  work  is  to  be  done  in  thrashing  out  the  wheat,  which  makes  a 
part  of  the  contract,  and  is  different  from  a  mere  contract  of  sale,  to 
which  kind  of  contract  alone  the  statute  is  applicable.  It  is  not  known 
whether  this  distinction  has  been  expressly  recognized  by  any  of  the 
adjudications  of  the  courts  of  justice  in  this  State ;  but  the  case  of  Ron- 
deau V.  Wyatt,  which  insists  on  the  doctrine,  has  been  acknowledged 
as  authority  in  the  late  General  Court,  in  the  case  quoted  on  the  argu- 
ment of  Newman*  v.  Morris,  4  Harris  &  M'Henry,  42L  It  was  a  con- 
ti-act  for  the  delivery  of  cheese  at  a  future  time,  and  on  the  authority 
of  Rondeau  v.  Wyatt  it  was  determined  to  be  an  executory  contract, 
and  void  under  the  statute.  The  distinction  thus  recognized  the  court 
do  not  intend  shall  be  pushed  farther  than  the  circumstances  of  the 
case  of  Clayton  v.  Andrews  will  justify ;  and  they  must  not  therefore 
be  understood  to  extend  it  to  cases  where  the  articles  sold  are  not  to 
be  prepared  for  deliveiy  by  work  and  labor,  and  where  the  work  and 
labor  may  not  be  considered  in  some  measure  a  part  of  the  contract. 
Thus  understood,  the  court  reverse  the  decision  of  the  court  below, 
and  order  a  procedendo. 

Chase,  C.  J.,  and  Martix,  J.,  were  absent  at  the  argument,  but  they 
concurred  in  the  opinion  of  the  court.  Judgment  reversed. 

In  the  case  of  Brian  v.  M'Eldcry,  Judgment  affirmed.^ 

1  Followed  in  Rentcli  v.  Long,  27  Md.  188.  —  Ed. 


PARKER   V.   STANILAND. 


[chap.  I. 


SECTION  II. 

^^  Goods,  Wares,  and  llerchandises.''^ 

ANONYMOUS. 

In  the  Common  Pleas,  1697. 

[Reported  in  1  Lord  Raymond,  182.] 

^  Teeby,  C.  J.,  reported  to  the  other  justices  that  it  was  a  question 
before  him  at  a  trial  at  7iisi  prius  at  Guildhall,  whether  the  sale  of 
timber  growing  upon  the  land  ought  to  be  in  writing  by  the  Statute 
of  Frauds,  or  might  be  by  parol?  And  he  was  of  opinion,  and  gave 
the  rule  accordingly,  that  it  might  be  by  parol,  because  it  is  but  a  bare 
chattelu^  And  to  this  opinion  Poavell,  J.,  agreed. 


PAPJvER  V.   STANILAND. 


THE  King's  Bench,  June  13,  1809. 


[Reported  in  11  East,  362.] 

A  V^  '^^^  plaintiiF  declared  that  the  defendant  was,  on  the  1st  of  January, 
1809,  indebted  to  him  in  £500  for  a  certain  crop  of  potatoes  of  the 
plaintiff  before  that  time  bargained  and  sold  by  the  plaintiff  to  the 
defendant  at  his  request,  and  by  the  defendant  under  that  bargain  and 
sale  before  that  time  accepted,  gathered,  dug  up,  taken,  and  carried 
away;  and  being  so  indebted  the  defendant  j^romised  to  pay,  &c. 
There  was  another  similar  count  on  a  quantum  mermt,  and  other  gen- 
eral counts  for  goods  sold  and  delivered,  &c.  The  defendant  pleaded 
the  general  issue,  and  paid  £22  Is.  dd.  into  court.  It  appeared  at  the 
trial  before  Bayley,  J,,  at  Nottingham,  that  the  plaintiff,  being  the 
owner  of  a  close  of  about  two  acres,  which  was  cropped  with  potatoes, 
agreed  with  the  defendant  on  the  21st  of  November  to  sell  him  the 
potatoes  at  4s.  Qd.  a  sack.  The  defendant  was  to  get  tliem  himsel?, 
and  to  get  them  immediately.  The  defendant  emi)loyed  men  to  dig 
the  potatoes  on  the  25th,  2Gth,  and  27th  of  the  same  month,  and  got 
twenty-one,  twenty-four,  and  thirty-three  sacks  full,  and  on  the  4th  of 
December  he  got  seven  sacks  more,  and  fourteen  about  Lady-day,  the 
value  of  which  was  covered  by  the  money  paid  into  court.     But  there 


SECT.    II.]  PARKER   V.    STANILAND.  43 

remained  about  three  roods  of  potatoes  which  were  not  dug  up,  and 
which  were  spoilt  by  the  frost;  and  the  action  was  brought  to  recover 
the  vahie  of  these.  The  objection  taken  at  tlie  trial  was,  tliat  this  was 
an  .igrecment  for  an  interest  in  land,  which,  not  having  been  reduced 
to  writing,  Avas  void  by  the  Statute  of  Frauds,  29  Car.  '2,  c.  3,  §  4. 
But  the  learned  judge  overruled  the  objection,  and  permitted  the 
plaintift'  to  take  a  verdict  for  the  amount ;  reserving  leave  to  the  de- 
fendant to  move  to  enter  a  nonsuit,  if  the  court  should  think  the 
objection  well  founded.     The  motion  was  accordingly  made  by 

Balguy,  Jr.,  in  the  last  term,  who  referred  to  Crosby  v.  Wadsworth,^ 
where  a  contract  for  the  purchase  of  a  growing  crop  of  grass  in  a  close, 
for  the  purpose  of  being  moAvn  and  made  into  hay  by  the  vendee,  was 
held  to  convey  to  him  an  interest  in  the  land  itself,  and  therefore 
avoided  by  the  statute,  if  not  reduced  into  \\Titing. 

Lord  Ellexbokougii,  C.  J.,  observed  that  there  was  this  difference 
between  the  cases,  that  in  Crosby  v.  Wadsworth  the  contract  was  made 
while  the  grass  was  then  in  a  growing  state,  which  was  afterwards  to 
be  mown  at  maturity  and  made  into  hay ;  whereas  here  the  contract 
was  for  the  potatoes  in  a  matured  state  of  growth,  which  were  then 
'  ready  to  be  taken,  and  were  agreed  to  be  taken  immediately.  There 
was  a  delivery  of  the  whole  at  the  time,  as  much  as  the  subject-matter 
was  then  capable  of  delivery,  and  the  defendant  did  actually  take  away 
a  great  part  of  them.  However,  a  rule  nisi  was  granted  for  further 
consideration  of  this  point.  But  with  respect  to  another  objection 
which  was  now  started,  that  the  money  paid  into  court  covered  the 
value  of  all  the  potatoes  which  had  been  taken,  and  that  the  remainder, 
which  were  left  in  the  i)laintiff's  ground,  could  not  be  recovered  in 
value  under  counts  stating  that  they  had  been  "  bargained  and  sold, 
gathered,  dug  up,  taken,  and  carried  away,"  or  "  sold  and  delivered  : " 
his  Lordship  answered  that  the  objection  had  not  been  taken  at  the 
trial ;  and  that,  besides,  it  was  enough  to  prove  that  they  were  bargained 
and  sold,  without  proving  that  they  were  taken  aAvay. 

Clarke  and  Ilemminr/  now  shewed  cause  against  the  rule,  and  con- 
tended that  the  potatoes  were  sold  merely  as  goods  in  a  warehouse 
ready  for  delivery  at  the  time  and  to  be  taken  immediately,  though 
they  were  permitted  to  remain  there  till  it  suited  the  defendant's  con- 
venience to  remove  them.  Potatoes  are  often  kept  in  the  ground. 
[Grose,  J.  That  is  after  they  have  been  severed.]  All  benefit  to 
them  from  the  soil  was  at  an  end,  nor  was  it  contemjdated  by  the  con- 
tracting parties.  This  differs  the  case  materially  from  AVaddington  v. 
Bristow  2  and  Crosby  v.  Wadsworth,  Avhere  the  continuing  growth  and 
nourishment  of  the  hops  in  the  one  case,  and  of  the  grass  in  the  other, 
were  in  contemplation.  The  right  to  the  soil  continued  all  the  time 
in  the  plaintiff,  and  the  defendant  would  have  been  a  trespasser  if  he 
1  6  East,  602.  2  2  Bos.  &  PuU.  452. 


44  PARKER   V.    STANILAND.  [CHAP.    I, 

had  medcllecl  with  it  otherwise  than  for  the  special  purpose  of  taking 
up  the  potatoes.  The  nature  of  the  contract  shews  this ;  for  the  con- 
tract was  merely  for  the  potatoes,  and  they  were  to  be  sold  by  the 
sack.  The  defendant  could  not  have  maintained  trespass  against  any 
person  going  on  the  ground :  he  himself  had  only  an  easement  to  take 
the  crop. 

JBcdguy^  and  Bcdguy,  Jr.,  in  support  of  the  rule,  contended  that  if 
the  land  had  been  devised  in  this  state,  the  devisee  Avould  have  taken 
the  jjotatoes  against  the  executor ;  whicli  shews  that  the  contract  Avas 
for  an  intei*est  in  the  land.  Nor  can  this  be  distinguished  in  principle 
from  Crosby  v.  Wadsworth,  ujjon  the  presumption  (probably  not 
founded  in  fact)  that  the  potatoes  had  done  growing  and  had  ceased 
to  derive  any  nourishment  from  the  land ;  but  it  is  enough  that  they 
were  not  severed  from  it  when  the  contract  was  made,  and  therefore 
did  not  exist  separately  as  goods ;  that  is  the  only  distinction  recog- 
nized in  the  books.  Larceny  could  not  have  been  committed  of  them. 
This  case  is  even  stronger  in  one  respect ;  for  the  crop  could  not  be 
taken  up  without  breaking  the  soil,  which  was  to  be  done  by  the 
defendant ;  and  therefore  it  cannot  be  considered  as  a  mere  easement. 
The  defendant  Avas  entitled  to  the  possession  of  the  close  \intil  the  crop 
was  taken ;  for  without  that  the  contract  could  not  have  been  exe- 
cuted ;  and  therefore  he  must  have  been  entitled  to  all  the  possessory 
remedies  against  a  wrong-doer  invading  his  possession. 

LoKD  Ellexborough,  C.  J.  It  does  not  folloAV  that  because  the 
potatoes  were  not  at  the  time  of  the  contract  in  the  shajic  of  personal 
chattels,  as  not  being  severed  from  the  land,  so  that  larceny  might  be 
committed  of  them,  therefore  the  contract  for  the  purchase  of  them 
passed  an  interest  in  the  land  within  the  4th  section  of  the  Statute 
of  Frauds.  The  contract  here  was  confined  to  the  sale  of  the  potatoes, 
and  nothing  else  Avas  in  the  contemplation  of  the  parties.  It  is  prob- 
able that  in  the  course  of  nature  the  A-egetation  Avas  at  an  end ;  but  be 
that  as  it  may,  they  were  to  be  taken  by  the  defendant  immediately, 
and  it  Avas  quite  accidental  if  they  derived  any  further  advantage  from 
being  in  the  land.  This  differs  the  j^resent  case  from  those  AA'hich  have 
been  cited.  The  lessee  primm  vesturce  may  maintain  trespass  quare 
clausnm  fregit^  or  ejectment  for  injuries  to  his  possessory  right;  but 
this  defendant  could  not  have  maintained  either ;  for  he  had  no  right  to 
the  possession  of  the  close ;  he  had  only  an  easement,  a  right  to  come 
upon  the  land  for  the  purpose  of  taking  up  and  carrying  away  the 
potatoes ;  but  that  gave  him  no  interest  in  the  soil.  I  am  not  disposed 
to  extend  the  case  of  Crosby  v.  WadsAvorth  further,  so  as  to  bring  such 
a  contract  as  this  within  the  Statute  of  Frauds  as  passing  an  int'erest 
in  land. 

Geose  and  Le  Blanc,  JJ.,  agreed. 

Bayley,  J.     I  do  not  think  that  this  contract  passed  an  interest  in 


SECT.    II.]  WAR^VICK    V.    CRUCE.  45 

the  laiiil  Avithin  the  meaning  of  the  4th  section  of  the  Statute  of 
Frauds.  In  the  cases  of  Crosby  v.  .Wadsworth  and  Waddington  v. 
Bristow  the  contracts  were  made  for  the  growing  crops  of  grass  and 
hops,  and  therefore  tlie  purchasers  of  the  crops  had  an  intermediate 
interest  in  the  land  while  the  crops  were  growing  to  maturity  before 
they  Avcre  gathered :  but  here  the  land  was  considered  as  a  mere  Avare- 
house  for  the  potatoes  till  the  defendant  could  remove  them,  which  he 
was  to  do  immediately ;  and  therefore  I  do  not  think  that  the  case  is 
within  the  statute.  ^  Jiule  discharged. 


,^xv.  .  ^v.-i     InFAXT,    by    J.    MONTEITII,    HIS     KEXT     FeIEXD,     V. 

M^  BRUCE. 

'Viw    In  the  King's  Bench,  November  24,  1813. 

V 

[Reported  iti  2JIaule  ^-  Se!w!/)i,  205.] 


V 


\^  Assumpsit.     The  plaintiff  declares  that  on  the  12th  of  October, 
1812,  &c.,  at  the  request  of  the  defendant,  he  agreed  to  buy  of  the 
defendant,  and  the  defendant  agreed  to  sell  to  him,  all  the  potatoes 
then  growing  on  three  acres  and  a  half  of  land  of  the  defendant,  at 
the  rate  or  price  of  £25  per  acre,  and  so  in  proportion  for  the  half  acre, 
amounting  to  the  sum  of  £87  10s.,  to  be  dug  up  and  carried  away  by 
the  plaintiff,  and  to  be  paid  for  by  him  as  hereinafter  mentioned  ;  and 
in  consideration  thereof,  and  also  in  consideration  that  the  plaintiff  at 
the  request  of  the  defendant  then  and  there  paid  to  the  defendant  the 
sum  of  £40  in  part  payment  of  the  said  price,  and  then  and  there 
promised  the  defendant  to  dig  up  and  carry  away  the  potatoes,  and  to 
pay  the  defendant  the  residue  of  the  price  agreed  on,  on  the  first  half 
of  the  potatoes  being  taken  and  cleared  from  the  land,  the  defendant 
then  and  there  undertook  and  promised  the  plaintiff  to  suffer  and  per- 
mit him  to  dig  up  and  carry  away  the  i)otatoes.     And  then  the  ])lain- 
tiff  avers  that  he  did  afterwards  dig  up  a  part  of  the  potatoes,  and 
carry  away  a  part  of  those  which  were  so  dug,  and  was  ready  and 
willing  and  offered  to  dig  up  and  carry  away  the  residue,  and  to  pay 
the  defendant  the  residue  of  the  price  agreed  on ;  but  the  defendant 
did  not  nor  would  suffer  him  to  dig    or  carry  away  any  more  ;  on 
the  contrary,  the  defendant  afterwards  took  and  carried  away  a  great 
part  of  the  potatoes  so  dug  as  aforesaid,  and  converted  and  disposed 
thereof,  and  of  the  residue  which  Avere  not  dug  up  by  the  plaintiff,  to 
his  own  use.     Whereby  the   plaintiff  Avas  put  to  great  trouble  and 
expense  in  the  digging  up  a  part  of  the  potatoes,  and  also  lost  all  the 
profits  Avhich  might  and  Avould  otherAvise  have  accrued  to  him  from  the 


46  EVANS   V.   ROBERTS.  [CHAP.    I. 

performance  of  the  said  promise  of  the  defendant,  &c.  There  were 
three  other  special  counts  upon  this  agreement,  and  the  common  money- 
counts.  Plea,  general  issue,  and  notice  of  set-off.  At  the  trial  before 
Lord  Ellenborough,  0.  J.,  at  the  Middlesex  sittings  after  last  term,  it 
was  objected:  first,  that  this  contract  (being  by  parol)  was  within  the 
4th  section  of  the  Statute  of  Frauds ;  and  secondly,  that  the  plain- 
tiff being  an  infant  could  not  sue  upon  it.  His  Lordship  overruled  the 
first  objection,  but  upon  the  last  he  directed  a  nonsuit,  giving  the 
plaintiff  leave  to  move  to  set  it  aside. 

The  Attorney-  General  accordingly  obtained  a  rale  nisi  for  that  pur- 
pose. .  .  } 

SpanJiie  and  JD.  F.  Jones^  who  shewed  cause,  insisted  that  this  was 
a  contract  or  sale  of  an  interest  in  or  concerning  land,  and  distin- 
guished it  from  Parker  v.  Staniland,-  because  there  the  crop  at  the  time 
of  sale,  though  it  was  then  in  the  ground,  had  reached  its  full  growth, 
and  was  to  be  taken  up  immediately,  and  so  the  land  was  considered 
as  nothing  more  than  a  warehouse ;  but  here  the  contract  Was  at  a 
season  when  the  potatoes  had  yet  to  grow;  and  upon  this  distinction 
it  was  resolved  in  Emmerson  v.  Heelis^  that  a  sale  of  growing  turnips 
was  "  a  sale  of  an  interest  in  land ; "  and  the  same  was  held  in  Crosby 
V.  Wadsworth.* 

The  Attorney-  General,  contra,  was  stopped  by  the  court. 

Lord  Ellenborough,  C.  J.  As  to  the  last  objection,  if  this  had 
been  a  contract  conferring  an  exclusive  right  to  the  land  for  a  time  for 
the  purpose  of  making  a  profit  of  the  growing  surface,  it  would  be  a 
contract  for  the  sale  of  an  interest  in  or  concerning  lands,  and  would 
then  fall  unquestionably  within  the  range  of  Crosby  v.  Wadsworth. 
But  here  is  a  contract  for  the  sale  of  potatoes  at  so  much  per  acre  ;  the 
potatoes  are  the  subject-matter  of  sale,  and  whether  at  the  time  of  sale 
they  were  covered  Avith  earth  in  the  field,  or  in  a  box,  still  it  was  a  sale 
of  a  mere  chattel.  It  falls  therefore  within  the  case  of  Parker  v.  Stani- 
land ;  a^*0^that  disposes  of  the  point  on  the  Statute  of  Frauds.  .  .  . 
t/1  ir  I   .        I  Mule  absolute. 

H''^^  EVANS   V.  ROBERTS. 
In  the  King's  Bench,  Trinity  Term,  1826. 

[Reported  in  5  Barnewall  Sf  Cresswell,  829.] 

Indebitatus  assumpsit,  for  crops  of  potatoes  bargained  and  sold. 
Plea,  the  general  issue.    At  the  trial  before  Garrow,  B.,  at  the  spring 

1  The  arguments  and  decision  upon  the  second  question  are  omitted.  —  Ed. 

2  11  East,  362.  ^  2  Taunt.  38.  "  6  East,  602. 


SECT.    II.]  EVANS   V.    ROBERTS,  47 

assizes  for  the  coimty  of  Monmouth,  182G,  it  appearefl  that  on  the' 
25th  of  September  a  verbal  agreement  was  made  between  the  plaintiff 
and  defendant,  by  M'hich  the  defendant  agreed  to  ]»urchase  of  the  plain- 
tiif  a  cover  of  potatoes  then  in  the  ground,  to  be  turned  uj)  by  the 
plaintiff,  at  the  price  of  £5,  and  the  defendant  paid  one  shilling  earnest. 
It  was  objected  that  this  was  a  contract  or  sale  of  an  interest  in  or  con- 
cerning land,  within  tlie  meaning  of  the  4th  section  of  the  Statute 
of  Frauds.  The  learned  judge  was  of  opinion  that,  as  the  seller  was 
to  turn  up  the  potatoes,  the  contract  did  not  give  the  buyer  any  inter- 
est in  the  land  ;  and  he  directed  a  verdict  to  be  found  for  the  plaintifii 
but  reserved  liberty  to  the  defendant  to  move  to  enter  a  nonsuit.  A 
rule  nisi  having  been  obtained  accordingly. 

Justice  now  shewed  cause.  By  the  terms  of  this  contract  the  seller 
was  to  dig  up  the  potatoes,  and  the  buyer  only  to  take  them  aAvay. 
This  contract  did  not  confer  upon  the  buyer  of  the  potatoes  any  exclu- 
sive right  to  the  land  for  a  time,  for  the  purpose  of  making  a  profit  of 
the  growing  surface ;  and  if  that  be  so,  then,  according  to  Warwick 
V.  Bruce,^  this  was  not  a  contract  for  the  sale  of  an  interest  in  or  con- 
cerning lands,  within  the  meaning  of  the  4th  section  of  the  Statute 
of  Frauds.  If  the  vendee  had  entered  to  dig  up  the  potatoes,  and  the 
vendor  had  brought  trespass  against  him,  he  could  not  have  pleaded 
the  general  issue,  and  have  given  his  title  in  evidence  under  the  plea 
of  not  guilty ;  he  must  have  pleaded  his  contract,  as  a  license  to  enter 
for  a  special  pui-pose  merely,  viz.,  to  take  away  what  he  had  bought ; 
and  if  that  be  so,  then  he  had  no  interest  in  the  land  any  more  than 
the  owner  of  potatoes  or  of  a  rick  of  hay  placed  in  a  warehouse  or 
barn  or  raised  in  a  heap  on  the  land.  In  those  cases  the  owner  of 
the  chattel  has  no  interest  in  the  land  where*  the  chattel  is.  This  case 
must  be  governed  by  the  cases  of  Warwick  v.  Bruce,-  and  Parker 
V.  Staniland.'^  It  is  distinguishable  from  Crosby  ?j.  Wadsworth,*  because 
in  that  case  the  contract  was  for  growing  grass  to  be  made  into  hay. 
The  grass,  by  the  terms  of  the  contract,  was  to  continue  growing  until 
it  was  ripe  and  fit  to  cut.  That  was  a  grant  of  the  whole  vesture  of 
the  land ;  and  the  purchaser  had  such  an  exclusive  possession  as  would 
entitle  him  to  maintain  trespass. 

Ludlow,  contra.  The  authorities  show  that  a  sale  of  any  growing 
product  of  the  earth,  which  is  not  to  be  severed  immediately,  gives  to 
the  vendee  an  interest  in  or  concerning  the  land,  within  the  meaning 
of  the  4th  section  of  the  Statute  of  Frauds.  Crosby  v.  Wadsworth,^ 
Parker  v.  Staniland.''  The  very  right  to  have  the  subject-matter  of  the 
sale  continue  in  the  land  constitutes  an  interest.  Waddington  v.  Bris- 
tow^  and  Emmerson  v.  Heelis^  are  authorities  in  point.     In  the  latter 

1  2  M.  &  S.  205.  2  2  M.  &  S.  205.  ^  n  East,  362. 

*  G  East,  602.  »  6  East,  602.  ^  11  East,  362. 

"J  2  Bos.  &  Pul.  452.  8  2  Taunt.  38. 


48  EVANS   V.    ROBERTS.  [CHAP.    I. 

case,  a  sale  of  growing  turnips,  no  time  being  stipnlated  for  their 
removal,  and  the  degree  of  their  maturity  not  being  found,  was  held  to 
be  a  sale  of  an  interest  in  land. 

Batley,  J.  I  am  of  opinion  that  in  this  case  there  was  not  a  con- 
tract for  the  sale  of  any  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  concerning  them,  but  a  contract  only  for  the  sale  and 
delivery  of  things  which,  at  the  time  of  the  delivery,  should  be  goods 
and  chattels.  It  appears  that  the  contract  was  for  a  cover  of  pota- 
toes; the  vendor  was  to  raise 'the  potatoes  from  the  ground  at  the 
request  of  the  vendee.  The  effect  of  the  contract  therefore  was  to 
give  to  the  buyer  a  right  to  all  the  potatoes  which  a  given  quantity  of 
land  should  produce,  but  not  to  give  him  any  right  to  the  possession  of 
the  land ;  he  was  merely  to  have  the  potatoes  delivered  to  him  when 
their  growth  was  complete.  Most  of  the  authorities  cited  in  the  course 
of  the  argument,  to  show  that  this  contract  gave  the  vendee  an  interest 
in  the  land  within  the  meaning  of  the  4th  section  of  the  Statute  of 
Frauds,  are  distinguishable  from  the  present  case.  In  Crosby  v.  Wads- 
worth  ^  the  buyer  did  acquire  an  interest  in  the  land ;  for,  by  the  terms 
of  the  contract,  he  was  to  mow  the  grass,  and  must  therefore  have  had 
the  possession  of  the  land  for  that  purpose.  Besides,  in  that  case  the 
contract  was  for  the  growing  grass,  which  is  the  natural  and  permanent 
produce  of  the  land,  renewed  from  time  to  time  without  cultivation. 
Now,  growing  grass  does  not  come  within  the  description  of  goods  and 
chattels,  and  cannot  be  seized  as  such  under  a  Ji.  fa. ;  it  goes  to  tlie 
heir  and  not  to  the  executor ;  but  growing  potatoes  come  within  the 
description  of  emblements,  and  are  deemed  chattels,  by  reason  of  their 
being  raised  by  labor  and  manurance.  They  go  to  the  executor  of 
tenant  in  fee-simple,  although  they  are  fixed  to  the  freehold,-  and  may 
be  taken  in  execution  under  a  ji.  fa..,  by  Avhich  the  sheriff  is  com- 
manded to  levy  the  debt  of  the  goods  and  chattels  of  the  defendant ; 
and  if  a  growing  croj)  of  potatoes  be  chattels,  then  they  are  not  within 
the  provisions  of  the  4th  section  of  the  Statute  of  Frauds,  which 
relate  to  lands,  tenements,  or  hereditaments,  or  any  interest  in  or  con- 
cerning them.  In  Parker  v.  Staniland  ^  the  owner  of  a  close  cropped 
with  potatoes  made  a  contract  on  the  21st  of  November  to  sell  them 
at  so  much  per  sack,  and  the  purchaser  was  to  raise  them  from  the 
ground  immediately ;  and  that  was  held  not  to  be  a  contract  for  any 
interest  in  or  concerning  land.  In  that  case,  as  well  as  in  Warwick  v. 
Bruce,*  the  potatoes  had  ceased  to  groAV ;  and  therefore  they  are  dis- 
tinguishable from  the  present ;  but  the  reasoning  of  Lord  Ellenborough 
in  the  latter  case  may  assist  us  in  coming  to  a  right  conclusion  in  the 
present ;  he  there  says :  "  If  this  had  been  a  contract  conferiing  an 

1  6  East,  602. 

2  See  Corn.  Dig.,  tit.  Biens  (G.),  and  Gilbert's  Law  of  Evidence,  214. 

3  11  East,  362.  *  2  M.  &  S.  205. 


SECT.    II.]  EVANS   V.    ROBERTS.  49 

exclusive  right  to  the  land  for  a  time,  for  the  purpose  of  making  a 
profit  of  the  growing  surface,  it  would  be  a  contract  for  the  sale  of  an 
interest  in  or  concerning  lands,  and  would  then  fall  unquestionably 
within  the  range  of  Crosby  v.  Wadsworth.^     But  here  is  a  contract  for 
the  sale  of  potatoes  at  so  much  per  acre :  the  potatoes  are  the  subject- 
matter  of  sale ;  and  whether  at  the  time  of  sale  tliey  were  covered 
with  earth  in  the  field,  or  in  a  box,  still  it  was  a  sale  of  a  mere  chattel." 
It  does  not  appear  that  the  other  judges  gave  any  opinion  upon  that 
point;  but  it  is  clear  tliat  Lord  Ellenborough's  judgment  proceeded 
upon  the  ground  that  if  the  contract  gave  to  the  vendee  no  right  to 
the  land  so  as  to  enable  him  to  make  a  profit  of  the  growing  surface, 
then  it  was  not  to  be  considered  as  giving  an  interest  in  the  land,  but 
merely  in   a  chattel.     The   opinion  delivered  by  Mansfield,  C.  J.,  in 
Emmerson  v.  Heelis,^  is  certainly  at  variance  with  our  judgment  in  the 
present  case.     But  it  is  first  to  be  observed  that  it  Mas  not  necessary 
in  that  case  for  the  court  to  decide  the  question  upon  the  4th  section 
of  the  Statute  of  Frauds,  for  the  contract  was  signed  by  the  auctioneer 
as  the  agent  of  the  buyer,  and  was  equally  binding  Avhether  it  was  for 
a  sale  of  goods  and  chattels  or  of  an  interest  in  land.     The  plaintifi^ 
there  put  up  to  sale  on  the  25th  of  September,  by  j)ublic  auction,  a 
crop  of  turnips  then  growing  on  his  land,  in  sejiarate  lots,  and  under 
certain  conditions  of  sale.     The  defendant,  by  his  agent,  attended  at 
the  sale,  and  being  the  highest  bidder  for  twenty-seven  difl:erent  lots, 
was  declared  to  be  the  pm-chaser ;  and  the  name  of  the  defendant  was 
written  in  the  sale-bill  opposite  to  each  particular  lot  for  which  he  had 
been  declared  the  highest  bidder.     Mansfield,  C.  J.,  there  savs :  "  As  to 
this  being  an  interest  in  the  land,  we  do  not  see  how  it  can  be  distin- 
guished from  the  case  of  hops  decided  in  this  court ;  and  if  the  auc- 
tioneer is  an  agent  for  the  purchaser,  then  the  Statute  of  Frauds  is 
satisfied,  because  the  memorandum  in  Avriting  is  signed  by  an  agent  for 
the  party  to  be  charged  therewith."     The  ground  of  the  Lord  Chief 
Justice's  opinion,  as  to  the  contract  giving  the  purcliaser'an  interest  in 
land,  was  that  the  case  could  not  be  distinguished  from  that  of  Wad- 
dington  v.  Bristow.^   It  becomes  necessary  therefore  to  consider  whether 
the  two  cases  be  similar.     In  the  latter  case  the  contract  was  made  in 
November  for  all  the  hops  Avhich  should  be  grown  in  the  ensuing  year 
upon  a  given  number  of  acres  of  land.     At  that  time  tlie  hops  which 
were  the  subject  of  the   contract  were  not  in  existence;  there  was 
nothing  but  the  root  of  the  plant,  and  the  puix-haser  was  not  to  have 
that.     The  question  in  that  case  was,  not  whether  the  agreement, 
which  was  in  writing,  was  for  an  interest  in  the  land,  but  Avlu'ther  it 
ought  to  have  been  stamped.     It  was  contended  that  it  was,  within  the 
exception  in  the  stamp  act,  an  agTcement  made  for  an<l  relating  to  the 
sale  of  goods,  wares,  and  merchandise.     All  the  judgus  concurred  in 
I  6  East,  602.  2  2  Taunt.  38.  3  2  Bos.  &  Pul.  452. 

VOL.    I.  4 


50  EVANS    V.    ROBERTS.  [CHAP.    1. 

the  judgment  that  the  contract  in  that  case  was  not  an  agreement  for 
the  sale  of  goods,  wares,  and  merchandise ;  but  their  opinions  were 
founded  upon  different  reasons.  Lord  Alvanley  thought  that  it  was  an 
agreement  for  the  sale  of  goods,  wares,  and  merchandise,  and  some- 
thing more,  viz.,  for  the  produce  of  the  land  in  a  certain  state  at  the 
time  of  delivery.  The  opinions  of  Heath  and  Rooke,  JJ.,  proceeded 
on  the  ground  that  the  hops  at  the  time  of  the  contract  did  not  exist 
as  goods,  wares,  and  merchandise.  Chambre,  J.,  was  the  only  judge 
who  intimated  an  opinion  that  the  contract  gave  the  vendee  an  interest 
in  the  land.  He  certainly  stated  that  the  contract  gave  the  vendee  an 
interest  in  the  produce  of  the  whole  of  that  part  of  the  vendor's  farm 
which  consisted  of  hop-grounds.  I  concur  in  opinion  with  the  three 
learned  judges  who  thought  in  that  case  that  the  hops  were  not  goods, 
wares,  and  merchandise,  at  the  time  of  the  contract ;  but  I  do  not  agi-ee 
with  Lord  Chief  Justice  Mansfield  that  there  was  no  distinction 
between  the  hops  in  that  case  and  the  growing  turnips  in  the  case  of 
Emmerson  v.  Heelis,  because  I  think  that  in  the  latter  case  the  grow- 
ing turnips  at  the  time  of  the  contract  were  chattels.  It  has  been 
insisted  that  the  right  to  have  the  potatoes  remain  in  the  ground  is  an 
interest  in  the  land ;  but  a  party  entitled  to  emblements  has  the  same 
right,  and  yet  he  is  not  by  virtixe  of  that  right  considered  to  have  any 
interest  in  the  land.  For  the  land  goes  to  the  heir,  but  the  emble- 
ments go  to  the  executor.  In  Tidd's  Practice,  1039,  it  is  laid  doAvn 
that  under  a  fieri  facias  the  sheriff  may  sell  fructus  industriales,  as 
corn  growing,  which  goes  to  the  executor,  or  fixtures  which  may  be 
removed  by  the  tenant ;  but  not  furnaces,  or  apples  upon  trees,  which 
belong  to  the  freehold  and  go  to  the  heir.  The  distinction  is  between 
those  things  which  go  to  the  executor  and  those  which  go  to  the  heir. 
The  former  maybe  seized  and  sold  under  the^.  fia.;  the  latter  cannot. 
The  former  must  therefore,  in  contemplation  of  law,  be  considered 
chattels.  It  appears  therefore  that,  when  it  was  necessary  at  common 
law  to  distinguish  between  what  was  land  and  what  was  not,  a  grow- 
ing crop  produced  by  the  labor  and  expense  of  the  occupier  of  lauds 
was,  as  the  representative  of  that  labor  and  expense,  considered  an 
independent  chattel,  not  going  as  the  land  goes,  but  in  a  different 
direction.  LTpon  the  same  principle  the  purchaser  of  a  growing  crop, 
who  by  his  contract  acquired  a  right  to  have  the  crop  continue  in  the 
land  of  the  seller  until  it  arrived  at  maturity,  must,  before  the  passing 
of  the  Statute  of  Frauds,  have  been  considered  to  have  had  an  interest 
not  in  the  land,  but  in  a  chattel  independent  of  the  land;  and  that 
beino-  so,  I  cannot  suppose  that  by  the  4th  section  of  that  statute, 
which  enacts  that,  unless  certain  provisions  be  complied  with,  no  action 
shall  be  brought  upon  any  contract  or  sale  of  any  interest  in  or  con- 
cei-ning  lands,  tenements,  or  hereditaments,  the  Legislature  contem- 
plated, as  the  subject-matter  of  such  contract  or  sale,  that  interest 


SECT,    II.]  EVANS   V.    ROBERTS.  51 

which  passes  from  a  vendor  to  a  vendee  by  a  sale  of  a  growing  crop  of 
potatoes.  The  statute  56  G.  3,  e.  50,  indeed,  is  a  legishitive  declaration 
that  grooving  crops  may  be  seized  and  taken  in  execution  under  Ji.  fa. 
It  prevents  their  being  so  seized  in  cases  where  the  tenant  is  restrained 
by  covenant  in  his  lease  from  removing  them  off  the  premises.  The 
case  of  Mayiield  v.  Wadsley  ^  also  shows  that  whore  there  is  a  sale  of 
grooving  crojis,  distinct  from  any  assignment  or  letting  of  the  land,  the 
crops  do  not  constitute  part  of  the  inheritance  or  any  interest  in  land, 
but  are  mere  chattels,  and  may  be  recovered  \;nder  a  count  for  goods 
bargained  and  sold.  Upon  these  grounds,  I  am  of  opinion  that  there 
was  not  in  this  case  any  contract  or  sale  of  lands,  tenements,  or  here- 
ditaments, or  any  interest  in  or  concernino-  them  within  the  4th  sec- 
tion  of  the  Statute  of  Frauds ;  but  that  there  was  a  contract  for  the 
sale  of  goods,  wares,  and  merchandise  within  the  meaning  of  the 
17th  section,  though  not  to  the  amount  which  makes  a  written  note 
or  memorandum  of  the  barerain  necessary.  The  rule  for  enterincf  a 
nonsuit  must  therefore  be  discharged. 

HoLROYD,  J.  I  also  think  that  this  rule  ought  to  be  discharged. 
This  is  to  be  considered  a  contract  for  the  sale  of  goods  and  chattels  to 
be  delivered  at  a  future  period.  Although  the  vendee  might  have  au 
incidental  right,  by  virtue  of  his  contract,  to  some  benefit  from  the 
land  while  the  j^otatoes  were  arriving  at  maturity,  yet  I  think  lie  had 
not  an  interest  in  the  land  within  the  meaning  of  this  statute.  He 
clearly  had  no  interest  so  as  to  entitle  him  to  the  possession  of  the 
land  for  a  period,  however  limited ;  for  he  was  not  to  raise  the  pota- 
toes. Besides,  this  is  not  a  contract  for  the  sale  of  the  produce  of  any 
specific  part  of  the  land,  but  of  the  produce  of  a  cover  of  land.  The 
plaintiff  did  not  acquire  by  the  contract  an  interest  in  any  specific 
portion  of  the  land.  The  contract  only  binds  the  vendor  to  sell  and 
deliver  the  potatoes  at  a  future  time  at  the  request  of  the  buyer,  and  he 
was  to  take  them  away.  In  Parker  v.  Staniland  ^  Lord  Ellenborough 
says:  " The  lessee p?vVnfc  ^'es^e«re  may  maintain  trcsi)ass  quare  clauswn 
fregit  or  ejectment  for  injuries  to  his  possessory  right;  but  this  defend- 
ant could  not  have  maintained  either;  for  he  had  no  right  to  the 
possession  of  the  close ;  he  had  only  an  easement,  a  right  to  come  upon 
the  land  for  the  purpose  of  taking  up  and  carrying  away  the  potatoes ; 
but  that  gave  him  no  interest  in  the  soil."  In  this  case  the  potatoes 
are  not  to  be  dug  up  by  the  buyer;  but  even  if  that  had  been  part  of 
the  contract,  I  think  he  Avould  not  have  had  an  interest  in  the  land, 
but  a  mere  easement.  In  Emmerson  v.  Heelis  ^  it  did  not  appear  that 
the  subject-matter  of  the  contract  was  fit  to  be  taken  at  the  tune  of  the 
contract.  The  purchaser  was  not  to  pay  till  January,  and  it  may  have 
continued  to  grow  till  that  period.     In  Foulter  v.  Killingbeck  *  incUbi- 

1  3  B.  &  C.  357.  2  11  East,  366. 

3  2  Taunt.  38.  4  i  Bos.  &  Pul.  397. 


52  EVANS   V.    EGBERTS.  [CHAP.    I. 

tatus  assumpsit  was  brought  for  moieties  of  crops  of  wheat  sold  by  the 
plaintiff  to  the  defendant,  and  accordingly  reaped  for  his  the  defend- 
ant's own  use.  It  appeared  that  the  plaintiff  by  a  parol  agreement 
had  let  land  to  the  defendant,  from  which  he  was  to  take  two  successive 
crops,  and  to  render  the  plaintiff  a  moiety  of  the  crops  in  lieu  of  rent. 
While  the  crops  of  the  second  year  were  on  the  groiuid,  an  appraise- 
ment of  them  was  taken  by  both  parties,  and  the  value  ascertained. 
The  action  was  brought  to  recover  a  moiety  of  the  value.  It  was 
objected  that  the  agreement  was  within  the  statute,  because  it  related 
to  land;  but  the  court  overruled  the  objection.  Eyre,  C.  J.,  observing 
"that,  as  the  case  originally  stood,  the  plaintiff  had  a  claim  to  a  moiety 
of  the  produce  of  the  land  under  a  special  agreement,  but  that  special 
agreement  was  executed  by  the  appraisement.  The  circumstances  of 
the  appraisement  afford  clear  proof  that  the  plaintiff  sold  what  the 
defendant  had  agreed  was  his,  and  the  price  having  been  ascertained 
brousfht  this  to  the  case  of  an  action  for  groods  sold  and  delivered." 
Lord  Ellenborough,  in  observing  upon  that  case  in  Crosby  v.  Wads- 
worth,^  says  :  "The  contract,  if  it  had  originally  concerned  an  interest 
in  land,  after  the  agreed  substitution  of  pecuniary  value  for  specific 
produce,  no  longer  did  so ;  it  Avas  originally  an  agreement  to  render 
what  should  have  become  a  chattel,  i.  e.  part  of  a  severed  crop  in  that 
shape,  in  lieu  of  rent,  and  by  a  subsequent  agreement  it  was  changed  to 
money  instead  of  remaining  a  specific  render  of  produce."  So  in  this 
case  the  contract,  being  for  the  sale  of  the  produce  of  a  given  quantity, 
was  a  contract  to  render  what  afterwards  would  become  a  chattel ;  and 
although  some  advantage  might  accrue  to  the  vendee  by  the  potatoes 
remaining  in  the  land,  I  think  that  was  not  an  interest  in  or  concerning 
land  within  the  meaning  of  the  4th  section  of  the  Statute  of  Frauds. 

LiTTLEDALE,  J.  I  am  of  Opinion  that  a  sale  of  the  produce  of  the 
land,  whether  it  be  in  a  state  of  maturity  or  not,  provided  it  be  in 
actual  existence  at  the  time  of  the  contract,  is  not  a  sale  of  lands, 
tenements,  or  hereditaments,  or  any  interest  in  or  concerning  them, 
within  the  meaning  of  the  4th  section  of  the  Statute  of  Frauds.  The 
words  "  lands,  tenements,  and  hereditaments  "  in  that  section  appear  to 
me  to  have  been  used  by  the  Legislature  to  denote  a  fee-simi3le ;  and  the 
words  "  any  interest  in  or  concerning  them "  were  used  to  denote  a 
chattel  intei-est,  or  some  interest  less  than  the  fee-simple.  In  the  5th 
section,  which  requires  a  will  of  lands,  tenements,  and  hereditaments 
to  be  attested  by  three  witnesses,  the  words  "  lands  and  tenements  " 
are  clearly  used  to  denote  a  fee-simple,  and  do  not  extend  to  lease- 
holds. The  Legislature  contemplated  an  interest  in  land  which  might 
be  made  the  subject  of  sale.  I  think  therefore  they  must  have  con- 
templated a  sale  of  an  interest  which  would  entitle  the  vendee  either 
to  the  reversion  or  the  present  possession  of  the  land.     Now  this  con- 

1  6  East,  602. 


SECT. 


II.]  EVANS   V.    ROBERTS.  53 


tract  only  gives  to  the  vendee  an  interest  in  tliat  growing  produce  of 
the  hind  wiiich  constituted  its  annual  profit.     Such   an  interest  does 
not  constitute  part  of  the  realty.     In  Co.   Lit.  5.5  h,  it  is  laid  down, 
"  If  tenant  for  life  sowetli  the  ground  and  dieth,  his  executors  shall 
have  the  corn,  for  that  his  estate  was  uncertain,  and  determined  by  the 
act  of  God."     Upon  the  death  of  the  tenant  for  life,  the  land  belongs 
to  the  reversioner ;  but  the  growing  crop  goes  to  the  executor  of  the 
tenant  for  life  as  part  of  his  personal  estate.     Lord  Coke  then  states  : 
"  If  a  man  be  seized  of  land  in  right  of  his  wife,  and  soweth  the  ground, 
and   he  dieth,  his  executors  shall  have  the  corn,  and  if  his  wife  die 
before  him,  he  shall  liave  the  corn."     Upon  the  death  of  the  husband 
or  wife,  the  interest  of  the  former  in  the  land  ceases ;  yet  the  growing 
corn  is  considered  as  part  of  his  personal  estate,  and  belongs  to  him  or 
his  executors.     Lord  Coke  afterwards  puts  other  cases,  and  in  all  of 
them  he  distinguishes  between  the  land  and  the  growing  produce  of 
the  land  ;  he  considers  the  latter  as  a  personal  chattel  independent  on, 
and  distinct  from,  the  land.     If  therefore  a  growing  crop  of  corn  does 
not  in  any  of  these  cases  constitute  any  part  of  the  land,  I  think  that  a 
sale  of  any  growing  produce  of  the  earth  (reared  by  labor  and  expense) 
in  actual  existence  at  the  time  of  the  contract,  whether  it  be  in  a  state 
of  maturity  or  not,  is  not  to  be  considered  a  sale  of  an  interest  in  or 
concernins:  land  within  the  meaning  of  the  4th  section  of  the  Statute 
of  Frauds ;   but  a  contract  for  the  sale  of  goods,  wares,  and  merchan- 
dise within  the  17th  section  of  that  statute.     Such  an  interest  goes 
to   the  executor  and  not  to  the  heir ;  and  any  thing  which  goes  to 
the  executor  and  not  to  the  heir  may  be  taken  in  execution  under  a 
Ji.  fa.     This  is  the  rule  of  law  as  to  tenants'  fixtures,  which  bear  a 
very  close  resemblance  to  those  growing  crops  which  are  not  the  spon- 
taneous produce  of  the  earth,  but  are  raised  by  tlie  labor  and  expense 
of  the  occupier  of  the  land.     It  has  been  held  that  vats,  coppers,  &c., 
set  up  in  a  house  by  a  lessee  for  years  in  relation  to  his  trade,  may  be 
taken  in  execution  under  a  writ  of  fieri  facias  issued  against  him, 
Poole's  Case ;  ^  but  that  fixtures  of  a  similar  description  cannot  be  taken 
in  execution  under  u.  fieri  facias  issued  against  a  party  who  was  seized 
in  fee  of  the  house  in  which  they  were  situate,  upon  the  ground  that 
they  would  go  to  his  heir  and  not  to  his  executor.     Winn  v.  Ingilby.* 
Now  a  growing  crop  of  corn  or  potatoes,  or  of  any  vegetable  whicli  is 
produced  not  spontaneously  by  the  earth,  but  by  the  labor  and  expense 
of  the  occupier,  goes  to  the  executor  and  not  to  the  heir  of  the  tenant 
in  fee-simple.     It  would  seem  therefore  tliat  such  a  growing  crop  may 
be  seized  under  a  fieri  facias  issued  against  the  OAvner  of  the  inheri- 
tance as  his  goods  and  chattels,  even  while  they  are  annexed  to  the 
freehold.      I   cannot  therefore  consider  the  annual  ju-oduce  of  land 
which  is  proceeding  to  a  state  of  maturity,  and  which,  when  taken  at 
1  1  Salk.  368.  2  5  b.  &  A.  025. 


54  SMITH   V.   SURMAN.  [CHAP.    I. 

maturity,  will  be  severed  fi-om  the  ground  and  become  movable  goods 
and  chattels,  as  an  interest  in  or  concerning  land  within  the  meaning 
of  the  4th  section  of  the  Statute  of  Frauds,  which  seems  to  me  to 
mean  land  taken  as  mere  land,  and  not  its  annual-growing  productions. 
Consequently  the  rule  for  entering  a  nonsuit  must  be  discharged. 

Hide  discharged. 


SMITH  V.   SURMAK 
>In  the  King's  Bench,  Easter  Term,  1829. 

[Reported  in  9  Barnewall  Sf  Cresswell,  561.] 

V  Declaratig^t  stated  that  the  plaintiff  on,  &c.,  at,  &c.,  at  the  request 
of  the  defendant  bargained  with  the  defendant  to  sell  to  him,  and 
the  defendant  agreed  to  buy  of  the  plaintiff,  a  large  quantity  of 
timber,  to  wit,  230  feet  of  timber,  lying  and  being  in  and  uj)on  certain 
lands  of  the  plaintiff,  at  a  certain  rate  or  price,  to  wit,  at  the  rate  or 
price  of  eighteen  i^ence  for  each  and  every  foot  thereof,  to  be  fetched, 
taken,  and  carried  away  by  the  defendant  from  the  said  lands  of  the 
plaintiff;  and  to  be  paid  for  by  the  defendant  at  the  rate  or  price  afore- 
said within  a  reasonable  time  then  next  following:  and  in  considera- 
tion  thereof,  and  also  in  consideration  that  the  plaintiff  at  the  like 
request  of  the  defendant  had  undertaken  and  faithfully  promised  the 
defendant  to  permit  and  suffer  the  defendant  to  fetch,  take,  and  carry 
away  the  said  timber  from  the  lands  of  the  plaintiff,  the  defendant 
undertook  and  foithfully  promised  the  plaintiff  to  fetch,  take,  and  carry 
away  the  timber  from  the  lands  of  the  plaintiff,  and  to  pay  the  plaintiff 
for  the  same  at  the  rate  aforesaid  within  a  reasonable  time.  Breach, 
that  the  defendant  refused  to  fetch  and  carry  away  the  timber,  or  to 
pay  for  the  same.  There  were  counts  for  goods  bargained  and  sold, 
and  goods  sold  and  delivered.  Plea,  the  general  issue.  At  the  trial 
before  Vaiighan,  B.,  at  the  summer  assizes  for  the  county  of  Worcester, 
1828,  it  ap])eared  that  this  action  Avas  brought  to  recover  i:i7  3s.  6f?., 
the  value  of  229  feet  of  ash  timber  at  Is.  6c?.  pei'foot,  which  the  plain- 
tiff had  agreed  to  sell  to  the  defendant  under  the  following  circum- 
stances :  The  plaintiff,  the  proprietor  of  a  coppice,  liad  giA^en  orders 
to  have  some  ash  trees  cut  doAvn ;  and  the  defendant  on  the  7th  of 
Ai^ril,  Avhile  the  trees  were  in  the  course  of  being  cut,  and  after  tAvo  of 
them  had  been  actually  felled,  came  to.  the  coppice,  and  the  plaintiff 
pointed  out  to  him  the  trees,  Avhich  were  numbered.  The  defendant, 
after  he  had  looked  at  them,  said  to  one  of  the  bystanders  that  he  had 
made  a  good  bargain,  and  told  one  of  the  persons  A\'ho  was  cutting 


SECT.  II.]  SMITH   V.    SURMAN.  55 

them,  to  tell  the  otlier  men  to  cross-cut  them  fair,  and  they  were  cut 
accordingly.  The  defendant  afterwards  said  he  had  hought  ten  trees 
only,  and  that  the  reason  he  did  not  have  them  was  that  they  were 
unsound.  After  the  trees  were  cut  they  measured  229  feet  7  inches. 
The  person  who  measured  them  afterwards  met  the  defendant,  who 
asked  hnn  if  he  had  measured  the  timber  at  Mr.  Smith's,  and  receiving 
an  answer  in  the  affirmative,  the  defendant  oflVred  to  sell  him  the  butts 
(which  he  alleged  he  had  bought  of  Mr.  Smith)  ;  but  tltis  not  being 
acceded  to,  the  defendant  asked  him  if  he  knew  any  person  who  wanted 
any  butts,  and  then  said  he  would  go  to  Mr.  Smith's  and  convert  the 
tops  into  building  stuff.  The  defendant  not  having  taken  the  timber 
away,  the  attorney  of  the  plaintiff,  by  his  direction,  wrote  the  follow- 
ing letter  to  the  defendant  upon  the  subject :  — 

Siu,  —I  am  directed  by  Mr.  Smith,  of  Norton  Ilall,  to  request  you  -will  forth- 
Avith  pay  for  the  ash  timber  which  you  purchased  of  him.  The  trees  are  num- 
bered from  one  to  fourteen,  and  contain,  upon  a  very  fair  admeasurement,  229 
feet  7  inches.  The  value  at  Is.  6d.  per  foot  amounts  to  the  sum  of  £17  3.s'.  6d. 
I  understand  your  objection  to  complete  your  contract  is  on  the  ground  that  tlie 
timber  is  faulty  and  unsound ;  but  there  is  sufficient  evidence  to  show  that  the 
•  same  timber  is  very  kind  and  superior,  and  a  superior  marketable  article.  I 
understand  you  object  to  the  manner  in  which  the  trees  were  cross-cut,  but  there 
is  also  evidence  to  prove  they  were  so  cut  by  your  direction.  Unless  the  debt 
is  immediately  discharged,  I  have  instructions  to  commence  an  action  against 
you. 

In  answer  to  this  letter  the  defendant  wrote  to  the  plaintiff's  attor- 
ney as  follows :  — 

Sir,  — I  have  this  moment  received  a  letter  from  you  respecting  Mr.  Smith's 
timber,  which  I  bought  of  him  at  Is.  6d.  per  foot,  to  be  sound  and  good,  which 
I  have  some  doubts  whether  it  is  or  not,  but  he  promised  to  make  it  so,  and  now 
denies  it.  When  I  saw  him,  he  told  me  I  should  not  have  any  without  all,  so  we 
agreed  on  these  terms,  and  I  expected  him  to  sell  it  to  somebody  else. 

Upon  this  evidence  it  was  objected  by  the  defendant's  counsel  that 
the  contract  was  one  for  the  sale  of  growing  trees,  and  therefore  for 
the  sale  of  an  interest  in  land,  and  he  cited  Scorell  v.  Boxall ;  ^  or  assum- 
ing that  it  was  a  contract  for  the  sale  of  goods,  wares,  and  merchan- 
dises, the  price  being  £10  and  upAvards,  and  there  being  no  note  or 
memorandum  of  the  contract  in  writing,  the  action  was  not  maintain- 
able. The  learned  judge  directed  the  jury  to  find  a  verdict  for  the 
plaintiff  for  £17  3.9.  Gel,  but  reserved  liberty  to  the  defendant  to  move 
to  enter  a  nonsuit.  A  rule  nisi  having  been  obtained  for  this  pur- 
pose, 

Biissell,  Serjt.,  and  Shiitt,  now  showed  cause.  There  Avas  not  in  this 
case  any  contract  for  the  sale  of  lands,  tenements,  or  hereditaments,  or 
of  any  interest  in  or  concerning  them,  within  the  meaning  of  the  4th 

1  1  Younge  &  Jervis,  3U0. 


56  SMITH    V.    SURMAN.  [CHAP.   I. 

section  of  the  Statute  of  Frauds.     The  trees  were  in  the  course  of 
being  felled  at  the  time  of  the  bargain  and  sale ;  some  of  them  Avere 
felled  when  the  bargain  was  concluded.     The  bargain  therefore  was 
not  for  standing  trees,  but  for  the  jjroduce  of  the  standing  trees,  "viz., 
timber  at  so  much  per  foot.   The  word  "  timber,"  strictly  speaking,  does 
not  import  growing  trees,  but  that  portion  of  the  trees  (when  felled) 
which  makes  wood  fit  for  building.     Scorell  v.  Boxall  ^  was  an  action 
of  trespass  by  the  vendee  of  standing  underwood,  which  was  to  be  cut 
by  the  vendee,  and  the  question  was,  whether  a  mere  verbal  contract 
for  the  sale  of  such  underwood  gave  such  a  possession  to  the  vendee  as 
would  entitle  him  to  maintain  trespass  against  the  defendant  for  cutting 
and  carrying  it  away ;  and  the  Coiut  of  Exchequer  held  that  it  was  a 
contract  for  the  sale  of  an  interest  in  land,  and  therefore  that  it  ought 
to  have  been  in  Avriting  to  give  an  interest  to  the  vendee.     Here  the 
contract  was  not  for  land,  or  any  interest  in  land,  but  for  the  timber 
which  would  be  produced  by  the  trees  when  they  should  be  cut  and 
severed  from  the  fi-eehold.     The  defendant  in  this  case  could  not  have 
entered  on  the  land  and  cut  a  single  tree ;  and  that  is  the  test  to  try 
whether  the  standing  trees  were  sold,  or  that  only  which  the  standing 
trees  should  when  cut  produce.    If  the  trees  had  been  sold  there  might 
have  been  some  ground  for  saying  that  the  vendee  took  an  interest  in 
the  land ;  but  the  timber  only  being  sold,  then  the  produce  of  the  trees 
when  cut  down  and  severed  from  the  fi-eehold  is  the  thing  contracted 
for.   Considering  the  Avord  "  timber  "  to  denote  only  trees  when  severed 
from  the  freehold,  will  reconcile  with  the  modern  cases  the  opinion  of 
Treby,  C.  J.,  and  Powell,  J.,  in  1  Ld.  Raym.  182,  viz.,  that  a  sale  of 
timber  growing  upon  the  land  may  be  by  parol,  because  it  is  but  a  bare 
chattel.     That  opinion  is  cited  as  an  authority  in  Buller's  N.  P.  282, 
and  without  disq^probation  by  Holroyd,  J.,  in  Mayfield  v.  Wadsley,^ 
where  the  question  was,  whether  a  (jontract  for  the  sale  of  a  crop  of 
wheat   was  one  for  the   sale  of  an  interest  in  land  within   the   4th 
section  of  the  Statute  of  Frauds.    It  is  not  the  circumstance  of  a  thing 
existing  in  a  grooving  state  in  the  soil  at  the  time  of  the  contract  that 
will  make  it  an  interest  in  the  land.     That  must  depend  on  circum- 
stances.    A  sale  of  crops,  or  trees,  or  other  matters  existing  in  a  grow- 
ing state  in  'the  land,  may  or  may  not  be  an  interest  in  land  according 
to  the  nature  of  the  agreement  between  the  parties,  and  the  rights 
which  such  an  agreement  may  give.     If  it  give  to  the  vendee  an  exclu- 
sive right  to  the  land  for  a  term,  for  the  purpose  of  making  a  profit  of 
the  growing  surfiice,  it  will  constitute  an  interest  in  the  land.   In  Crosby 
V.  Wadsworth^  the  vendee  of  the  crop  of  grass  might  have  maintained 
trespass,  for  by  the  terms  of  the  contract  he  was  to  mow  the  grass,  and 
must  therefore  have  had  the  possession  of  the  land  for  that  purpose. 
In  Emmerson  v.  Heelis*  no  time  was  stipulated  for  the  removal  of  the 

1  1  Younge  &  Jervis,  396.  2  3  b.  &  C.  364. 

3  6  East,  602.  4  2  Taunt.  38. 


SECT.    II.]  SMITH   V.    SURMAN,  o7 

turnips ;  and  Bayley,  .T.,  in  Evajiis  v.  Roberts,^  stated  that  in  his  opinion 
the  turnips  at  the  time  of  the  sale  were  chattels.     In  Parker  v.  Stani- 
land  '"  the  owner  of  the  close  cropped  with  potatoes  made  a  contract 
on  the  21st  of  November  to  sell  them  at  so  much  per  sack,  and  the 
purchaser  was  to  raise  them  from  the  ground  immediately,  and  that 
contract  was  hold  not  to  give  the  vendee  any  interest  in  or  concerning 
the  land.     In  Warwick  v.  Bruce  ^  the  ])rinciple  was  recognized  that  a 
contract  giving  an  interest  in  land  within  the  Statute  of  Frauds  must 
confer  an  exclusive  right  to  the  land  for  a  time,  for  the  purpose  of  mak- 
ing a  profit  of  the  growing  surface.    All  the  authorities  were  reviewed 
in  Evans  v.  Roberts,-*  where  it  Avas  held  that  a  verbal  agreement  made 
on  the  25tli  of  September  tor  the  sale  of  a  then  growing  crop  of  pota- 
toes was  not  a  contract  for  the  sale  of  any  lands,  tenements,  or  here- 
ditaments, or  any  interest  in  or  concerning  them,  within  the  4th  sec- 
tion of  the  Statute  of  Frauds.     But  it  will  be  said  that  this  was  a 
contract  for  the  sale  of  goods,  wares,  and  merchandise,  for  the  price 
of  £10  and  upwards,  within  the    17th    section,  and   that   there   has 
been  no  part  acceptance  nor  memorandum  in  writing  of  the  bargam. 
But  that  section  of  the  statute  does  not  apply  to  a  sale  of  timber  in  a 
course  of  being  felled  or  to  be  felled.     It  is  an  executory  contract  for 
so  much  timber,  to  be  produced  out  of  trees  upon  which  work  and  labor 
is  to  be  bestowed  by  the  vendor  for  the  benefit  of  the  vendee.     Some- 
thing was  required  to  be  done  to  put  the  subject-matter  into  the  state 
in  which  it  was  to  be  in  order  to  be  delivered  according  to  the  contract. 
It  was  not  a  contract  therefore  for  the  sale  of  goods,  wares,  and  merchan- 
dise, but  for  work  and  labor  and  materials  found  and  provided.    Towers 
V.  Osborne,^  Clayton  v.  Andrews,^  Groves  v.  Buck,"  Buxton  v.  Bedall.^ 
Assuming,  however,  that  there  was  a  contract  for  the  sale  of  goods, 
wares,  and  merchandise,  there  was  in  this  case  a  sufficient  acceptance  of 
part  of  the  goods  sold.     The  principle  is,  that  if  the  purchaser  deals 
with  the  commodity  as  if  it  were  in  his  actual  possession,  this  will  super- 
sede the  necessity  of  proving  actual  acceptance.      Chaplin  v.  Rogers,^ 
Elmore  v.  Stone.^°     Here  the  defendant  dealt  Avith  the  timber  as  if  it 
was  in  his  possession,  for  he  gave  directions  as  to  cross-cutting,  which 
might  make  the  timber  less  salable,  and  he  ofiered  to  sell  the  butts.     It 
is  in  this  respect  like  Blenkinsop  v.  Clayton,"  Avhere  a  person  had  bar- 
gained for  a  horse  then  in  the  stable,  and  soon  afterwards  brought  in  a 
third  person,  and  stated  to  him  that  he  had  bought  the  horse,  and 
offered  to  sell  it  to  such  third  person  for  a  i)rofit  of  £5.     Lastly,  the 
answer  of  the  defendant  to  the  attorney's  letter  was  a  sufficient  mem- 
orandum in  writing  of  the  contract ;  for  it  is  clear  that  two  distinct  AATit- 

1  5  B.  &  C.  838.  2  11  East,  362.  '  2  M.  &  S.  205. 

*  5  B.  &  C.  829.  6  1  Stra.  506.  «  4  Burr.  2101. 

7  3  M.  &  S.  178.  8  3  East,  303.  ^  1  East,  iy2. 

10  1  Taunt,  458.  "  7  Taunt.  uUT. 


] 


58  SMITH    V.   SURMAN.  [CHAP.   I. 

ings  may  be  coupled  together,  and  constitute  a  memorandum  within 
the  intention  of  the  statute.  Saunderson  v.  Jackson,^  Schneider  v.  Nor- 
ris."  Tlie  letter  of  the  plaintiff's  attorney  contained  an  assertion  of  the 
contract,  specifying  the  quantity,  quality,  and  price  of  the  timber,  and 
the  answer  confirms  it.  This  case  is  distino-uishable  from  Richards 
V.  Porter.^  There  the  letter  of  the  purchaser  falsified  the  contract,  for 
he  wrote  that  the  hops  had  not  been  sent  at  the  time  required  by  the 
contract. 

Jervis,  contra,  was  stopped  by  the  court. 

Bayley,  J.  I  am  of  opinion  that  there  was  not  in  this  case  any  con- 
tract for  the  sale  of  lands,  tenements,  or  hereditaments,  or  any  inter- 
est in  or  concerning  them,  within  the  meaning  of  the  4th  section  of 
the  Statute  of  Frauds.  The  contract  was  not  for  the  growing  trees, 
but  for  the  timber  at  so  mxich  per  foot ;  i.  e.  the  jn'oduce  of  the  trees 
when  they  should  be  cut  down  and  severed  from  the  freehold.  But 
indej^endently  of  the  point  made  on  that  section,  there  were  three 
other  questions  made :  first,  it  was  said  that  this  was  a  mixed  contract 
for  goods  and  chattels  and  for  work  and  labor  to  be  bestowed  and  per- 
formed by  the  plaintiff  for  the  defendant.  It  seems  to  me  that  the  true 
construction  of  the  bargain  is,  that  it  is  a  contract  for  the  future  sale 
of  the  timber  when  it  should  be  in  a  state  fit  for  delivery.  The  vendor, 
so  long  as  he  was  felling  it  and  preparing  it  for  delivery,  was  doing 
work  for  himself  and  not  for  the  defendant.  Garbutt  and  Another 
V.  Watson  *  is  in  point.  There  the  plaintiffs,  who  wei'e  millers,  agreed 
to  sell  to  the  defendant,  a  corn  merchant,  100  sacks  of  flour  at  fifty 
shillings  ])er  sack,  to  be  got  ready  by  the  plaintiffs  to  ship  within  three 
weeks.  There  was  no  memorandum  in  writinsr  of  the  contract.  The 
flour  was  not  at  that  time  prepared,  and  it  was  there  held  that  it  Avas 
a  contract  for  the  sale  of  goods,  wares,  and  merchandise,  Avithin  the 
meaning  of  the  17th  section  of  the  Statute  of  Frauds.  I  think  there- 
fore that  the  contract  in  this  case  was  only  a  contract  for  the  sale 
of  goods,  wares,  and  merchandise,  within  the  17th  section  of  the 
statute,  and  tliat  there  ought  to  have  been  a  note  or  memorandum  of 
it  in  writing,  or  a  part  acceptance,  earnest,  or  part  payment.  But  it  is 
said  that  the  defendant  has  recognized  in  writing  the  contract  stated 
in  the  letter  of  the  plaintiff's  attorney.  I  agree  that  if  there  hadjbeen 
a  letter  Avritten  by  the  seller  (or  his  agOTTpto"  the  buyer,  specifying 
tKe  terms  of  a'  contract,  a,nd  the  buyer  in  his  answer  had  recognized 
tBTat  contract,  tliere  would  have  been  a  note  in  writing  of  the  bai;gciin, 
sufficient  to  satisfy  the  statute.  But  the  defendant  in  this  case  does 
not  recognize  file  contract  stated  in  the  letter  of  the  plaintiff's  attor- 
ney. The  contract  as  described  in  the  two  letters  differs  essentially  as 
to  the  quality  of  the  things  to  be  sold.     In  the  letter  of  the  plaintiff's 

J  2  Bos.  &  Pul.  238.  2  2  M.  &  S.  286. 

3  U  B.  &  C.  437.  4  5  B.  &  A.  618. 


SECT,    ir.]  SMITH    V.    SURMAN. 


59 


attoniey  the  contract  is  spoken  of  as  one  for  the  absohite  purchase  of 
trees  at  Is.  6^?.  per  foot,  witliout  reference  to  quality;  the  defendant 
says  that  it  was  part  of  tlie  contract  that  the  timber  shouhl  be  sound 
and  good  ;  that  Mr.  Smith  denied  it,  and  refused  to  let  him  have  jiart 
without  all,  and  that  he  had  expected  he  would  have  sold  it  again.  It 
is  clear  therefore  that  the  vendee  did  not  consider  it  a  binding  bar- 
gain. What  the  real  terms  of  the  contract  were  is  left  in  doubt,  and 
must  be  ascertained  by  verbal  testimony.  The  object  of  the  statute  was, 
that  the  note  in  Avriting  should  exclude  all  doubt  as  to  the  terms  of  the 
contract,^  and  that  object  is  not'  satisfied  by  the  defendant's  letter.  I 
think  therefore  there  was  no  note  in  writing  of  the  contract  sufficient 
to  satisfy  the  statute. 

The  next  question  is.  Whether  there  was  any  acceptance  or  actual 
receipt  of  part  of  the  property  sold,  so  as  to  bring  the  case  within 
the  exception  in  the  17th  section?  and  I  think  that  there  was  no 
such  acceptance  or  actual  receipt.  In  all  the  cases  cited,  there  has 
been  something  equivalent  to  an  acceptance.  In  Chaplin  v.  Rogers  ^ 
the  vendee  had  sold  the  hay  again,  and  the  jury  from  thence  drew  the 
conclusion  that  there  had  been  an  actual  acceptance.  In  Elmore 
V.  Stone «  the  horses  were  purchased  of  a  horse-dealer  who  kept  a 
livery-stable.  The  buyer  directed  the  seller  to  keep  the  horses  at 
livery,  and  they  were  transferred  from  the  sale  to  the  livery-stable. 
The  purchaser  became  liable  to  the  livery-stable  keeper  for  the  keep, 
which  could  not  have  been  tlie  case  unless  the  horses  were  supposed  to 
have  gone  into  his  possession.  The  direction  given  by  the  vendee  was 
considered  equivalent  to  an  acceptance  or  actual  receipt  of  the  horses. 
The  vendor  was  converted  into  the  agent  of  the  vendee  for  the  keep 
of  the  horses;  and  they  might  be  considered  as  much  in  the  possession 
of  the  vendee  as  if  they  had  been  in  his  own  stable.  For  these  reasons 
I  am  of  opinion  that  there  was  not  in  this  case  any  contract  for  the  sale 
of  an  interest  in  land  within  the  meaning  of  the  4th  section  of  the 
statute,  but  that  the  contract  was  for  the  sale  of  goods,  wares,  aiK^  mer- 
chandise ;  that  there  was  no  sufficient  note  in  writing  of  the  bargain, 
nor  any  part  acceptance  of  the  goods  sold.  The  rule  for  entering  a 
nonsuit  must  therefore  be  made  absolute. 

LiTTLEDALE,  J.  I  am  of  the  same  opinion.  The  intention  of  the 
Legislature  in  making  the  statute  in  question  appears  by  the  preamble 
to  have  been  to  prevent  fraudulent  practices,  commonly  endeavored  to 
be  upheld  by  perjury  and  subornation  of  perjury ;  and  for  that  purpose, 
in  order  to  prevent  them,  it  requires  that  the  terms  of  contract  shall  be 
reduced  to  writing,  or  that  some  other  requisite  should  be  comidied 
■with  to  show  manifestly  that  the  contract  Avas  completed.   I  infer  from 

1  See  Seagood  v.  Meale,  Prec.  Chan.  500  ;  Clerk  v.  Wright,  1  Atk.  12  ;  Ayliffe  i'. 
Tracy,  2  P.  Wnis.  64. 

2  1  East,  194.  8  1  Taunt.  458. 


60  SMITH   V.    SURMAN.  [CHAP.    I. 

the  iDreamble  that  the  Legislature  intended  to  embrace  within  some  of 
its  sections  the  subject-matter  of  all  contracts.  The  various  contracts 
enumerated  in  the  several  sections  of  the  statute  seem  also  to  warrant 
that  inference.  The  first  section  enacts  that  parol  leases  shall  have  the 
effect  of  leases  at  will  only.  The  second  section  excepts  out  of  the 
first  leases  not  exceeding  three  years,  where  the  rent  reserved  dviring 
the  term  is  two-thirds  of  the  improved  value.  The  third  section  enacts 
that  no  leases,  either  of  freehold  or  terms  for  years,  shall  be  assigned, 
granted,  or  surrendered,  except  by  deed  or  note  in  writing.  The  first 
three  sections  apply  to  contracts  which,  before  the  statute,  were  usually, 
though  not  necessarily,  under  seal.  The  4th  section  applies  to  those 
parol  promises  or  agreements  which,  before  the  statute,  were  probably 
in  most  instances  reduced  into  writing,  but  which  need  not  have  been 
so.  Tliat  section  enacts  that  no  action  shall  be  brought  in  such  cases, 
unless  the  agreement,  or  some  note  or  memorandum  thereof,  shall  be 
reduced  into  w^riting.  The  agreements  therein  described  are  a  special 
promise  by  an  executor  to  answer  damages  out  of  his  own  estate ;  or  a 
special  promise  to  answer  for  the  debt  of  another  person ;  or  an  agree- 
ment made  in  consideration  of  marriage ;  or  any  contract  or  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
them ;  or  any  agreement  not  to  be  performed  within  the  space  of  one 
year  from  the  making  thereof  Such  contracts,  from  their  very  special 
nature  and  subject-matter,  would  probably  have  been  reduced  into 
writing.  The  statute  requires  that  they  shall  be  so.  The  5th  and  6th 
sections  apply  to  devises  of  land.  The  7th,  8th,  9th,  10th,  and  11th, 
apply  to  declarations  of  trusts,  and  they  are  also  required  to  be  in  writ- 
ing. The  12th  section  makes  estates  joer  auter  vie  devisable.  The  13th, 
14th,  15th,  and  16th  sections  apply  to  judgments  and  executions.  The 
17th  section  enacts  that  no  contract  for  the  sale  of  goods,  wares,  and 
merchandises,  for  the  price  of  £10  or  upwards,  shall  be  allowed  to  be 
good,  except  the  buyer  shall  accept  part  of  the  goods  so  sold  and 
actually  receive  the  same,  or  give  something  in  earnest  to  bind  the 
bargain  or  in  part  payment,  or  that  some  note  or  memorandum  of  the 
bargain,  in  writing,  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  properly  authorized.  Now, 
looking  to  the  object  of  the  statute  as  recited  in  the  preamble,  I  collect 
it  was  the  intention  of  the  Legislature  to  comprehend  within  the  4th 
and  17th  sections  the  subject-matter  of  evexy  parol  contract,  the  uncer- 
tainty in  the  terms  of  which  was  likely  to  produce  peijury  or  suborna- 
tion of  perjury.  A  contract  for  mere  work  and  labor  is  not  specifically 
mentioned  in  those  clauses;  such  a  contract  therefore  may  not  be 
within  the  statute. 

But  where  the  contracting  i^arties  contemplate  a  sale  of  goods, 
although  the  subject-matter  at  the  time  of  making  the  contract  does 
not  exist  in  goods,  but  is  to  be  converted  into  that  state  by  the  seller's 


SECT.    IT.]  SMITH   V.    SURMAN.  61 

bestowing  work  and  labor  on  his  own  raw  materials :  that  is  a  case 
Avithin  the  statute.  It  is  sufficient  if,  at  the  time  of  the  completion 
of  the  contract,  the  subject-matter  be  goods,  wares,  and  merchandise. 
I  cannot  assent  to  any  case  which  has  decided  that  such  a  contract  is 
not  within  the  statute. 

I  think  tliat  the  contract  in  this  case  was  not  a  contract  for  the  sale 
of  lands,  tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
the  same,  within  the  moaning  of  the  4th  section.  Those  words  in  that 
section  relate  to  contracts  (for  the  sale  of  the  fee-simple,  or  of  some 
less  interest  than  the  fee),  which  give  the  vendee  a  right  to  tlie  use  of 
the  land  for  a  specific  ])eriod.  If  in  this  case  the  contract  had  been 
for  the  sale  of  the  trees,  Avith  a  specific  liberty  to  the  vendee  to  enter 
the  land  to  cut  them,  I  think  it  would  not  have  given  him  an  interest 
in  the  land  within  the  meaning  of  the  statute.  The  object  of  a  party 
who  sells  timber  is,  not  to  give  the  vendee  any  interest  in  his  land,  but 
to  pass  to  him  an  interest  in  the  trees,  when  they  become  goods  and 
chattels.  Here  the  vendor  was  to  cut  the  trees  himself  His  intention 
clearly  was,  not  to  give  the  vendee  any  property  in  the  trees  until  they 
were  cut  and  ceased  to  be  part  of  the  freehold.  I  think  therefore  that 
there  was  not  in  this  case  any  contract  or  sale  of  any  interest  in  lands. 

Then  assuming  the  contract  not  to  be  within  the  4th  section,  the 
question  arises.  Whether  it  is  within  the  17th  section?  It  was 
formerly  held  that  where  the  goods,  which  were  the  subject-matter  of 
the  sale,  were  not  to  be  delivered  till  a  future  day,  as  one  of  the  three 
things  required  by  that  section  of  the  statute,  viz.,  a  part  acceptance, 
could  not  be  complied  with  at  the  time  of  the  contract,  it  was  not  a 
case  within  that  section  of  the  statute ;  but  later  authorities  ^  have 
established  that  such  a  contract,  whetlier  the  goods  are  or  are  not  to 
be  delivered  immediately,  is  within  the  statute.  Those  cases  there- 
fore have  established  that  if  two  of  the  things  required  by  the  ITtli 
section  can  at  the  time  of  the  contract  be  earned  into  effect,  the 
case  is  within  it,  although  one  cannot  be  complied  Avith.  There  is 
another  cliTss  of  cases,'-  where  the  article  contractetl  for  has  not  existed 
at  the  time  of  the  contract,  but  is  to  be  produced  by  Avork  and  labor 
to  be  bestowed  by  the  Acndor;  as  Avhere  the  contract  Avas  for  a  quan- 
tity of  oak  pins  which  had  not  been  made,  but  were  to  be  cut  out  of 
slabs,  or  for  a  chariot  to  be  built.  In  those  cases  the  contract  has  been 
considered  rather  as  a  contract  for  work  and  labor  than  for  the  sale  of 
goods,  wares,  and  merchandise,  and  not  Avithin  the  statute.  The 
impression  on  my  mind  hoAVCA'cr  is,  that  whercA^er  the  subject-matter 
at  the  time  of  the  comjiletion  of  the  contract  is  goods,  wares,  and 
merchandise,  this  section  of  the  statute  attaches  upon  it,  although  it 

1  Rondeau  v.  Wyatt,  2  H.  Bl.  67  ;  Cooper  v.  Elston,  7  T.  R.  14  ;  Alexander  v. 
Comber,  1  11.  Bl.  21. 

2  Towers  v.  Osborne,  1  Stra.  506 ;  Groves  v.  Buck,  3  M.  &  S.  179. 


62  SMITH   V.    SURMAN.  [CHAP.    I. 

has  become  goods,  wares,  and  merchandise,  between  the  time  of  mak- 
ing and  completing  the  contract,  either  by  one  of  the  parties  having 
bestowed  his  work  and  labor  upon  his  own  materials,  or  by  his  having 
converted  a  portion  of  his  freehold  into  goods  and  chattels.  The  pro- 
visions of  the  statute  are  more  necessary  in  cases  where  the  contract 
is  to  be  executed  at  a  future  period,  than  where  it  is  to  be  executed 
immediately.  From  the  uncertainty  in  the  terms  of  bargains  to  be 
completed  at  a  future  period,  disputes  are  more  likely  to  arise,  and  the 
consequent  perjury  which  it  was  the  object  of  the  statute  to  jDrevent. 
In  the  case  of  the  chariot,  for  instance,  a  dispute  might  at  any  time 
before  its  completion  have  arisen  respecting  the  quality  of  the  mate- 
rials of  which  it  was  to  be  composed,  or  the  color  which  it  was  to  be 
painted,  and  in  those  respects  it  would  have  been  necessary  to  have 
recourse  to  verbal  testimony  to  prove  the  terms  of  the  contract,  which 
it  was  the  very  object  of  the  statute  to  prevent.  I  am  therefore  of 
opinion  that  the  contract  in  this  case  was  a  contract  for  the  sale  of 
goods,  wares,  and  merchandise,  within  the  17th  section.^  I  think 
also  that  there  is  no  sufficient  note  in  writing  of  the  contract. 
The  plaintiff's  attorney  in  his  letter  speaks  of  it  as  a  contract  for  the 
sale  of  so  much  timber,  at  so  much  per  foot,  without  reference  to  qual- 
ity. The  defendant  in  his  letter  states  that  it  was  a  contract,  with  a 
condition  that  the  timber  should  be  sound  and  good,  though  the  plain- 
tifi"  had  subsequently  denied  that  that  was  one  of  the  terms  of  the 
conti-act.  I  tliink  also,  for  the  reasons  stated  by  my  brother  Bayley, 
that  there  was  no  jiart  acceptance  of  the  goods  to  satisfy  the  statute. 

Park,  J.  Tlie  defendant  could  take  no  interest  in  the  land  by  this 
contract,  because  he  could  not  acquire  any  property  in  the  trees  till 
they  were  cut.  The  contract  was  for  the  sale  of  goods,  wares,  and 
merchandise,  Avithin  the  17th  section.  In  Groves  v.  Buck^  it  was  said 
that  that  section  did  n'ot  apply  to  a  sale  of  goods,  which  at  the  time  of 
the  contract  were  not  capable  of  delivery  and  part  acceptance.  But 
that  case  was  overruled  by  Garbutt  v.  Watson.^  It  was  there  held 
that  a  contract  by  millers  for  the  sale  of  a  qiiantity  of  flouv,  which  at 
the  time  of  the  contract  was  not  prepared  and  in  a  state  capable  of 
immediate  delivery,  was  substantially  a  contract  for  the  sale  of  flour, 
and  not  a  contract  for  work  and  labor  and  materials  found  and  pro- 
vided. The  true  question  in  such  cases  is  as  to  whether  the  contract 
be  substantially  a  contract  for  the  sale  of  goods,  or  for  work  and  labor 
and  materials  found.  In  this  case  the  contract  was  substantially  a  sale 
of  goods,  viz.,  timber  at  so  much  per  foot.  Then  assuming  that  there 
was  a  contract  for  the  sale  of  goods  within  the  17th  section,  the  ques- 
tion is.  Whether  there  was  any  note  or  memorandum  in  writing  of  that 
contract,  or  any  part  acceptance  of  the  goods  ?     The  two  letters  do 

1  See  Ellison  v.  Brighara,  38  Vt.  64.  —  Ed. 

^  3  M.  &  S.  178.  3  5  B.  &  A.  613. 


SECT.    II.]  WATTS   V.    FRIEND.  63 

not,  in  my  judgment,  amount  to  a  note  in  writing  of  the  contract; 
because  the  contract  stated  in  the  letter  of  the  j)hiintiff's  attorney  is 
not  adopted  by  the  defendant  in  his.  On  tlie  contrary,  it  is  evident 
that  the  defenchmt  has  not  assented  to  the  contract  stated  by  tlic  phiin- 
tilil  Then  the  only  question  is,  Whether  there  has  been  a  jtart  accept- 
ance of  tlie  goods  sold,  and  actual  recei2)t  of  the  same?  In  the  older 
cases  the  court  did  not  advert  to  the  words  of  the  statute.  But  the 
later  cases  ^  have  established  that,  unless  there  has  been  such  a  dealing 
on  the  part  of  the  purchaser  as  to  dei)rive  him  of  any  right  to  object 
to  the  quantity  or  quality  of  the  goods,  or  to  deprive  the  seller  of  his 
right  of  lien,  there  cannot  be  any  part  acceptance.  Here  there  was 
nothing  to  show  that  the  vendor  had  lost  his  lien  for  the  price,  or  that 
the  purchaser  had  lost  his  right  to  object  to  the  quality.  The  rule  for 
entering  a  nonsuit  muj>*  therefore  be  made  absolute. 

d^^    l^"^!  J'^^^'^^^^'lt   ^-  FRIEND. 
^^ )J^^  ^^J'the  King's  Bench,  January  28,  1830. 

r^^         yy  [Reported  in  10  Barnewall  ^'  Cresswell,  446.] 

7^  Assumpsit  on  a  special  agreement  between  the  plamtifl  and  defend- 
ant, that  the  former  should  furnish  the  latter  with  a  certain  quantity  of 
turnip-seed,  which  he  (defendant)  should  sow  on  his  own  land,  and  sell 
and  deliver  the  whole  of  the  seed  produced  therefrom  to  the  plaintiff 
at  the  price  of  £1  Is.  the  Winchester  bushel.  Averment,  that  i)laintiff 
supplied  the  seed;  that  defendant  sowed  it,  and  harvested  the  croji, 
but  did  not  sell  and  deliver  the  seed  produced  to  the  plaintiff,  but 
wholly  refused,  &c.  Plea,  the  general  issue.  At  the  trial  before  Lord 
Tenterden,  C.  J.,  at  the  Kent  summer  assizes,  1828,  the  facts  stated  in 
the  declaration  were  proved ;  and  also  that  the  seed  produced  was  240 
bushels,  and  that  the  plaintiff  could  not  at  that  time  obtain  it  for  less 
than  £1  10s.  the  bushel ;  but  it  was  objected  that  the  contract,  which 
was  verbal  only,  was  within  the  17th  section  of  the  Statute  of  Frauds, 
and  therefore  void.''  .  .  . 

1  Howe  V.  Palmer,  3  B.  &  A.  321 ;  Hanson  v.  Arniitage,  5  B.  &  A.  659 ;  Carter  v. 
Toussaint,  5  B.  &  A.  S55  ;  Tempest  v.  Fitzgerald,  3  B.  &  A.  680. 

2  lu  Rodwell  r.  riiillips,  'J  M.  &  W.  501,  d03,  Lord  Abinger,  C.  B.,  referring  to  the 
foregoing  case,  said  :  "  Undoubtedly  there  is  a  case  in  which  it  appears  that  a  contract 
to  sell  timber  growing  was  not  held  to  convey  any  interest  in  the  land,  hut  that  was 
where  the  parties  contracted  to  sell  the  timber  at  so  much  per  foot,  and  from  the 
nature  of  that  contract  it  must  be  taken  to  have  been  the  same  as  if  tlie  parties  had 
contracted  for  the  sale  of  timber  already  felled."  —  Ed. 

3  Only  so  mucli  of  this  case  is  given  as  relates  to  the  Statute  of  Frauds.  —  Ed. 


64  SAINSBURY   V.    MATTHEWS.  [CHAP.    I. 


Lord  Tenterden  c-ave  the  defendant  leave  to  move  for  a  nonsuit 
on  that  point ;  and  the  plaintiff  having  obtained  a  verdict,  a  rule  nisi 
for  a  nonsuit  was  granted  in  Michaelmas  term,  1828. 

Gurney  and  Comyn  now  shewed  cause,  and  contended  that  the 
case  did  not  fall  within  the  17th  section  of  the  Statute  of  Frauds.  It 
was  not  a  contract  for  goods  and  chattels,  but  for  the  crop  to  be  pro- 
duced from  seed  which  was  not  even  sown  at  the  time  when  the  bar- 
gain was  made.  This  is  a  stronger  case  than  Towers  v.  Osborne,^ 
Clayton  v.  Andrews,^  or  Groves  v.  Buck ;  ^  for  there  the  contract  was 
for  the  sale  of  some  articles  to  be  made,  the  materials  of  which  then 
existed.  Here  the  bargain  was  for  a  thing  of  which  no  part  was  in 
existence  at  the  time.  Garbutt  v.  Watson*  is  distinguishable;  that 
was  a  contract  for  the  sale  of  flour ;  the  wheat  from  which  it  was  to  be 
made  was  in  existence,  and  grinding  was  the  only  thing  necessary  to 
be  done  before  the  contract  was  performed.  .  .  . 

SjKOikie,  Serjt.,  contra,  was  stopped  by  the  court. 

LoKD  Tekterden,  C.  J.  The  rule  for  entering  a  nonsuit  must  be 
made  absolute.  According  to  good  common  sense,  this  must  be  con- 
sidered as  substantially  a  contract  for  goods  and  chattels,  for  the  thing 
to  be  delivered  would,  at  the  time  of  delivery,  be  a  personal  chattel.^ 
The  case  therefore  axme  ^\-ithin  the  17th  section  of  the  Statute  of 
Frauds ;  and  the  contract  being  verbal  only,  and  for  goods  of  more 
than  £10  value,.was  not  binding.  .  .  .  JRide  absolute.^ 


SAINSBURY  V.  MATTHEWS. 
In  the  Exchequer,  Michaelmas  Term,  1838. 

[Reported  in  4  Meeson  <j'  Wekby,  343.] 

This  was  an  action  of  assumpsit  to  recover  damages  for  the  breach 
of  a  contract  by  the  defendant  to  sell  and  deliver  to  the  plaintiff  a  cer- 
tain quantity  of  potatoes.'' 

1  1  Stra.  506.  2  4  Burr.  2101.  3  3  M.  &  S.  178. 

4  5B.  &  A.  618.  5  Smith  v.  Siirman,  9  B.  &  C.  561. 

6  It  would  seem  that  the  case  would  not  have  been  within  the  17th  section  of 
the  Statute  of  Frauds  if  tlie  A-alue  of  the  seed  produced,  at  the  rate  agreed  for,  had 
been  less  than  £10  ;  and  therefore  whether  it  would  be  within  it  or  not  was  uncertain 
at  the  time  when  the  agreement  was  made.  Now  it  has  been  held  that  cases  depend- 
ing upon  contingencies  which  may  or  may  not  happen  within  the  year  are  not  within 
the  4th  section  of  the  Statute  of  Frauds,  even  although  the  event  does  not  in  fact 
happen  within  the  year.  It  seems  therefore  that  the  17th  section  is  in  this  respect 
to  receive  a  diflerent  construction  from  the  4th. 

'  Only  so  much  of  this  case  is  given  as  relates  to  the  question  whether  the  subject 
of  the  sale  was  goods,  wares,  or  merchandise,  within  tlie  meaning  of  the  Statute 
of  Frauds.  —  Ed. 


I>vv 


SECT.    II.]  SAINSBURY   V.    MATTHEWS.  65 

At  the  trial  before  Coltman,  J.,  at  the  last  Wiltshire  assizes,  it  was 
proved  that  the  plaintiff  and  defendant  being  together  at  an  inn  at 
Erlstoke,  in  June,  1S:J6,  the  defendant  said  he  had  got  100  lugs  of  jtota- 
toes,  and  he  would  sell  them  at  two  shillings  a  sack.  The  plaintiff  said 
he  would  have  them;  and  it  was  agreed  that  the  plaintiff  was  to  have 
them  at  that  price  at  digging  up  time,  and  that  he  should  find  diggers. 
When  the  potatoes  were  ripe,  the  plaintiff  accordingly  sent  diggers  to 
take  them  up ;  but  the  defendant  refused  to  permit  them  to  do  so. 

The  jury  having  found  for  the  plaintiff,  damages  £5  10s., 

Croxcder  now  moved,  pursuant  to  leave  reserved  by  the  learned 
judge,  to  enter  a  nonsuit,  on  the  ground  that  this  was  the  sale  of  an 
interest  in  land  within  tlie  4th  section  of  the  Statute  of  Frauds,  and 
therefore  required  a  note  or  memorandum  in  writing.  The  potatoes 
were  not  in  such  a  shape  at  the  time  of  the  contract  as  that  they  could 
be  transferred  as  chattels ;  they  were  to  be  taken  up  when  ripe  by  the 
vendee ;  and  he  must  necessarily  have  the  benefit  of  the  land  for  the 
three  intervening  months.  [Parke,  B.  He  was  not  to  have  them 
until  he  dug  them  up.  Suppose  a  tempest  had  destroyed  them  in  the 
mean  time,  whose  would  the  loss  have  been  ?  It  is  only  a  contract  to 
sell  at  a  future  day  so  many  sacks  of  i)Otatoes,  the  produce  of  certain 
land.]  In  Parker  v.  Staniland  ^  a  similar  contract  for  the  sale  of  m-ow- 
ing  potatoes  at  so  much  a  sack  was  held  not  to  be  a  sale  of  an  interest 
in  land,  on  the  express  ground  that  they  were  to  be  taken  up  by  the 
defendant  immediately,  and  it  was  therefore  quite  accidental  if  they 
derived  any  further  advantage  fi'om  being  in  the  land.  Evans 
V.  Koberts-is  distinguished  by  the  circumstance  that  there  the  })ota- 
toes  were  to  be  raised  by  the  vendor  for  the  vendee.  The  distinction 
taken  in  that  case  between  crops  which  would  be  emblements,  and  the 
ordinary  annual  produce  of  land,  appears  hardly  to  be  maintainable. 
In  Earl  of  Falmouth  v.  Thomas  ^  it  was  held  that  a  contract  to  let  with 
a  farm  certain  growing  crops  upon  it,  at  a  valuation,  was  a  contract  for 
the  sale  of  an  interest  in  land.  In  Carriugton  v.  Koots  ■*  the  same  Avas 
held  with  respect  to  a  contract  for  the  sale  of  a  growing  crop  of  grass 
with  liberty  to  the  buyer  to  go  upon  the  land  to  cut  and  carry  it 
away. 

Lord  Aiuxger,  C.  B.  I  think  this  was  not  a  contract  £rivino-  an 
interest  in  the  land  ;  it  is  only  a  contract  to  sell  potatoes  at  so  much  a 
sack  on  a  future  day,  to  be  taken  up  at  the  expense  of  the  vendee.  He 
must  give  notice  to  the  defendant  lor  that  purpose,  and  cannot  come 
upon  the  land  wlien  he  pleases. 

Parke,  B.     This  is  a  contract  for  the  sale  of  goods  and  chattels  at  a 
future  day,  the  ])roduce  of  certain  land,  and  to  be  taken  away  at  a  cer- 
tain time.     It  gives  no  right  to  the  land :  if  a  tempest  had  destroyed 
the  crop  in  the  mean  time,  and  there  had  been  none  to  deliver,  the  loss 
1  11  East,  362.        2  5  jj.  &  Cr.  829.        3  1  C.  &  M.  89.        •«  2  M.  &  W.  248. 

VOL.    I.  5 


66 


JONES  V.   FLINT. 


[chap.  I. 


would  clearly  have  fallen  upon  the  defendant.  The  case  is  stronger 
than  that  of  Evans  v.  Roberts,  because  here  there  is  only  a  stipulation 
to  pay  so  much  per  sack  for  the  potatoes  when  delivered ;  it  is  only  a 
contract  for  goods  to  be  sold  and  delivered.  In  that  case  all  the 
authorities  were  reviewed,  and  the  result  of  them  clearly  laid  down. 
Gurnet,  B.,  concurred.  Hule  refused. 


/ 


I 


JONES   V.   FLINT.  //^'^^^^^  7^ 
In  the  Queen's  Bench,  June  21,  1839.    ^  ^^^ 

[Reported  in  10  Adolphus  Sf  Ellis,  753.] 

Debt  for  certain  crops  of  growing  wheat,  barley,  and  potatoes^  bar- 
gained and  sold  by  the  plaintiff  to  the  defendant;  also  for  the  use  of 
certain  land  of  plaintiff,  and  the  eatage  of  grass,  clover,  and  stubble 
thereon  growing;  and  for  £45  due  to  the" plaintiff  on  an  account 
stated. 

On  the  trial  before  Bosanquet,  J.,  at  the  Denbighshire  spring  assizes, 
1837,  it  was  proved  that  in  August,  1835,  the  plaintiff  and  defendant 
agreed  orally  that  the  defendant  should  give  £45  for  the  crop  of  com 
on  the  plaintiff's  land,  and  the  profit  of  the  stubble  afterwards ;  that 
plaintiff  was  to  have  liberty  for  his  cattle  to  run  with  the  defendant's  ; 
that  defendant  was  also  to  have  some  potatoes  growing  on  the  land, 
and  whatever  lay  grass  was  in  the  fields.  Defendant  was  to  harvest 
the  corn  and  dig  up  the  potatoes ;  and  plaintiff  was  to  pay  the  tithe. 
It  did  not  distinctly  appear  whether  the  sale  was  by  the  acre  or  not. 
The  crops,  &c.,  were  taken  by  the  defendant  in  conformity  with  the 
agreement. 

The  defendant's  counsel  contended  that  the  plaintiff  was  not  entitled 
to  recover,  because  the  contract  proved  was  for  an  interest  in  land 
within  §  4  of  the  Statute  of  Frauds.  The  learned  judge  directed  a 
verdict  for  the  plaintiff,  reserving  leave  to  move  for  a  nonsuit.  In 
Easter  term,  1837,  Jervis  obtained  a  rule  accordingly.^  In  Hilary 
term  last  ^ 

£elly  and  Welsby  shewed  cause.  No  interest  in  land  passed  by  this 
contract.  Nothing  was  sold  but  crops  which  at  the  time  of  the  deliv- 
ery -would  be  goods  within  §  17  of  stat.  29  C.  2,  c.  3 ;  and,  as  there 
has  been  acceptance,  no  writing  was  necessary.  In  Evans  v.  Roberts  ^ 
it  was  held  that  a  sale  of  growing  potatoes  was  not  a  sale  of  an  interest 

1  The  statement  of  the  case  has  been  somewhat  curtailed.  —  Ed. 

2  Tlmrsday,  January  24th,  1839,  before  Lord  Denman,  C.  J.,  Littledale,  Williams, 
and  Coleridge,  JJ. 

3  5  B.  &  C.  829. 


SECT.    II,]  JONES   V.    FLINT.  67 

in  land.  In  Crosby  v.  Wadsworth  ^  tlie  sale  of  a  growing  crop  of  hay 
was  held  to  be  a  sale  of  an  interest  in  land ;  but  there  the  vendee  was 
to  mow  the  hay.  The  doctrine  ought  not  to  be  extended  beyond  the 
authorities ;  for  it  is  notorious  that  occupiers  of  land  continually  make 
such  bargains  without  any  notion  of  parting  with  an  interest  in  the  land, 
or  of  giving  at  the  utmost  more  than  a  license.  The  buyer  here  would 
have  been  a  trespasser  if  he  had  done  more  than  carry  away  the  crop. 
The  inclination  of  the  courts  has  latterly  been  to  hold  similar  bargains 
not  to  be  for  interests  in  land.  It  was  so  held  in  Sainsbury  v.  Matthews,^ 
though  the  vendee  was  to  find  diggers.  Parker  v.  Staniland  ^  is  in  favor 
of  the  j)laintiif. 

Jervis  and  3feeson,  contra.  Sainsbury  v.  Matthews*  (as  Parke,  B., 
pointed  out)  was  a  mere  case  of  a  sale  to  the  plaintiff  of  potatoes ; 
and  the  plaintiff,  had  the  potatoes  been  destroyed  before  the  time  for 
digging  arrived,  would  have  had  no  other  right  to  the  land,  though  till 
that  time  the  agreement  was  not  perfected,  because  till  then  it  would 
not  be  known  what  was  sold.  In  Evans  v.  Roberts^  the  vendor  was  to 
dig  the  potatoes :  he  could  not  therefore  have  parted  with  the  interest 
in  the  land.  In  Parker  v.  Staniland  '^  the  land  was  a  mere  place  of 
deposit,  as  the  potatoes  were  to  be  taken  immediately ;  the  land  con- 
tributed nothing  to  the  value  of  the  article  sold  after  the  sale.  Here  the 
crops,  which  include  the  grass  growing,  were  to  continue  on  the  land  ; 
and  the  case  therefore  resembles  Earl  of  Falmouth  v.  Thomas  ^  and 
Carrington  v.  Roots,®  where  the  contract  was  held  to  be  for  an  interest 
in  land.  [Coleridge,  J.  In  Earl  of  Falmouth  v.  Thomas  ^  the  plead- 
ings expressly  connected  the  bargain  as  to  the  crops  with  an  interest 
in  land.]  The  decision  proceeds  on  general  grounds.  In  Carrington 
V.  Roots ^°  the  question  arose  incidentally;  and  it  was  held  that  the 
vendee  could  not  insist  on  his  right  to  enter  the  land  and  take  the 
crops,  because  by  so  doing  he  claimed  an  interest  in  land  to  which  he 
was  not  entitled  according  to  the  Statute  of  Frauds. 

Cur.  adv.  vuli. 

Lord  Denman,  C.  J.,  in  this  vacation  (June  21st)  delivered  the 
judgment  of  the  court.  After  stating  the  nature  of  the  action,  his 
Lordship  proceeded  as  follows  :  — 

A  motion  for  a  nonsuit  was  made  by  leave,  on  the  ground  that  the 
contract  proved,  which  was  oral  only,  was  for  an  interest  in  land ;  this 
was  denied  in  answer ;  and  it  was  also  contended  that  the  state  of  the 
pleadings  precluded  the  defendant  from  taking  the  objection. 

The  contract  was  made  in  August,  when  the  crops  were  not  ripe, 

1  6  East,  602.  2  4  m.  &  W.  343.  »  11  East,  362. 

<  4  M.  &  W.  343.  5  5  B.  &  C.  829.  6  n  East,  362. 

•J  1  C.  &.  M.  89 ;  s.  c.  3  Tyrwh.  26.  8  2  M.  &  \V.  248. 

8  1  C.  &  M.  89 ;  8.  c.  3  Tyrwh.  26.  »0  2  M.  &  W.  248. 


68  JONES    V.    FLINT.  [CHAP.    I. 

though  nearly  so  ;  and  the  witnesses  who  proved  it  stated  it  thus. 
[His  Lordsliip  then  stated  the  terms  of  the  contract  as  they  are  already 
given.]  There  was  some  dispute,  upon  the  evidence,  whether  it  was 
a  sale  by  the  acre  or  not. 

Nothing,  it  will  be  observed,  was  expressly  agreed  on  as  to  the  pos- 
session of  the  land.  It  will  be  our  duty  therefore  in  construing  the 
contract  as  to  this  particular,  to  have  regard  to  its  subject-matter,  and 
to  imply  so  much,  and  only  so  much,  as  is  necessary  to  give  full  effect 
to  its  expressed  terms,  nothing  appearing  in  the  subsequent  acts  of  the 
parties  to  influence  our  construction  either  way. 

Three  things  were  the  subject-matter  of  the  contract:  crops  of  corn, 
potatoes,  and  the  after  eatage  of  stubble  and  lay  grass.  Of  these  all 
but  the  lay  grass  sirefructics  industriales  ;  as  such,  they  are  seizable  by 
the  sheriff  under  r  fieri  facias,  and  go  to  the  executor,  not  to  the  heir. 
If  they  had  been  ripe  at  the  date  of  the  contract,  it  may  be  considered 
now  as  quite  settled  that  the  contract  would  have  been  held  to  be  a 
contract  merely  for  the  sale  of  goods  and  chattels.  And,  although  they 
had  still  to  derive  nutriment  from  the  land,  yet  a  contract  for  the  sale 
of  them  has  been  determined,  fi-om  this  their  original  character,  not  to 
be  on  that  account  a  contract  for  the  sale  of  any  interest  in  land. 
Evans  v.  Roberts  ^  proceeds  on  this  principle.  That  was  a  sale  of  grow- 
ino-  potatoes.  Holroyd,  J.,  says :  ^  "  This  is  to  be  considered  a  contract 
for  the  sale  of  goods  and  chattels  to  be  delivered  at  a  future  period. 
Although  the  vendee  might  have  an  incidental  right,  by  virtue  of  his 
contract,  to  some  benefit  fi-om  the  land  while  the  potatoes  were  arriv- 
ing at  maturity,  yet  I  think  he  had  not  an  interest  in  the  land  within 
the  meaning  of  this  statute."  And  Littledale,  J.,  says :  ^  "  I  think  that 
a  sale  of  any  growing  produce  of  the  earth  (reared  by  labor  and 
expense),  in  actual  existence  at  the  time  of  the  contract,  whether  it  be 
in  a  state  of  maturity  or  not,  is  not  to  be  considered  a  sale  of  an  inter- 
est in  or  concerning  land,  within  the  meaning  of  the  4th  section  of  the 
Statute  of  Frauds."  Bayley,  J.,  lays  down  the  same  principle,  and 
qualifies,  not  the  judgment,  but  the  dictum,  of  Mansfield,  C.  J.,  in 
Emmerson  v.  Heelis,'*  which  certainly  is  at  variance  with  the  decision 
of  the  Court  of  King's  Bench  in  Evans  v.  Roberts.^  It  was  a  dictum, 
however,  unnecessary  to  the  decision. 

The  present  case  differs  fi-om  Evans  v.  Roberts  ^  in  this,  that  there 
the  potatoes  were  to  be  dug  up  by  the  seller ;  the  judgments,  how- 
ever, do  not  proceed  on  this  distinction,  although  it  was  not  unnoticed. 
Holroyd,  J.,  expressly  says  '^  that,  even  if  they  were  to  be  dug  up  by 
the  buyer,  "  I  think  he  would  not  have  had  an  intersst  in  the  land." 
And  we  agree  that  the  safer  grounds  of  decision  are  the  legal  character 

1  5  B.  &  C.  829.  2  Page  837.  ^  Page  840. 

*  2  Taunt.  47.  »  5  B.  &  C.  829.  6  5  b.  &  C.  829. 

1  Page  838. 


/ 


SECT.    II.]  JONES   V.    FLINT.  69 

of  the  principal  subject-matter  of  sale,  and  the  consideration  whether, 
in  order  to  effectuate  the  intentions  of  the  parties,  it  be  necessary  to 
give  the  vendee  an  interest  in  the  land.^  Tried  by  these  tests,  we 
think  that,  if  the  lay  grass  be  excluded,  the  parties  must  be  taken  to 
have  been  dealino;  about  goods  and  chattels,  and  that  an  easement  of 
the  right  to  enter  the  land  for  the  jtui-jiose  of  harvesting  and  carrying 
them  away  is  all  that  was  intended  to  be  granted  to  the  purchaser. 
It  is  very  difficult  to  reconcile  all  the  cases,  and  still  more  so  all  the 
dicta^  on  this  subject,  from  the  case  of  Waddington  v.  Bristow^  to  the 
present  time ;  and  we  are  therefore  left  at  liberty  to  abide  by  a  general 
principle. 

Upon  this  principle,  however,  we  are  to  examine  whether  the  intro- 
\  duction  of  the  lay  grass  into  the  contract  ought  to  vary  the  decision. 
\  This  is  the  natural  produce  of  the  land,  not  distinguishable  from  the 
land  itself  in  legal  contemplation  until  actual  severance ;  it  passes 
accordingly  to  the  heir,  not  to  the  executor ;  and  in  Crosby  v.  Wads- 
worth*  it  was  decided  that  the  purchaser  of  a  crop  of  mowing  grass, 
unripe,  and  which  he  was  to  cut,  took  an  exclusive  interest  in  the  land 
before  severance. 

If  therefore  this  be  a  case  in  which  the  parties  intended  a  sale  and 
purchase  of  the  grass  to  be  mowed  or  fed  by  the  buyer,  both  on  prin- 
ciple and  authority  the  objection  of  the  defendant  must  prevail. 

Looking  however  at  the  focts,  we  think  this  was  not  such  a  bargain. 
It  may  well  be  doubted,  upon  all  the  evidence,  whether  any  thing  that 
could  be  called  a  crop  of  grass  w^as  in  the  ground,  or  in  the  contempla- 
tion of  the  parties  at  all :  for  it  does  not  appear  that  any  clover  or, 
other  grass  had  been  sown  with  the  corn ;  and  the  word  "  grass  "  seems 
mei-ely  to  have  been  adopted  by  the  witness  in  cross-examination  from 
the  defendant's  counsel.  But,  not  relj-ing  upon  this,  we  find  that  the 
plaintiff  was  to  pay  the  tithe,  and  that  after  the  harvesting  he  reserved 
to  himself  the  right  of  turning  his  own  cattle  into  the  fields ;  and  we 
think  that,  however  expressed,  the  more  reasonable  construction  of 
the  contract  is,  that  the  possession  of  the  field  still  remained  with  the 
owner  "after  the  harvesting,  as  before ;  it  was  not  necessary  to  the 
vendee  before,  on  account  of  the  grass,  because  that,  whatever  it  was, 
could  not  then  be  got  at ;  nor  did  it  need  preservation ;  and  afterwards 
it  is  more  reasonable  to  consider  the  owner  as  agisting  the  vendee's 

1  "  When  a  sale  of  growing  crops  does,  and  when  it  does  not,  confer  an  interest  in 
land,  is  often  a  question  of  much  nicety ;  but  certainly,  when  the  owner  of  the  soil 
sells  what  is  growing  on  the  land,  whether  natural  produce,  as  timber,  grass,  or  apples, 
or  friictus  itidustriules,  as  corn,  pulse,  or  the  like,  on  the  terms  that  he  is  to  cut  or  sever 
them  from  the  land,  and  then  deliver  them  to  the  purchaser,  the  purchaser  acquires 
no  interest  in  the  soil,  which  in  such  case  is  only  in  the  nature  of  a  warehouse  for 
what  is  to  come  to  him  merely  as  a  personal  chattel."  Per  Kolfe,  B.,  Wasiibourn  v. 
Burrows,  1  Exch.  107,  115.  —  Ed.. 

2  B.  &  r.  452.  3  6  East,  602. 


70  HUMBLE   V.   MITCHELL.  [CHAP.   I. 

cattle,  than  as  having  his  own  cattle  agisted  by  him  whose  interest  at 
the  best  was  of  so  very  limited  a  nature. 

Upon  these  grounds,  not  impeaching  the  pi-inciple  of  Crosby  v. 
Wadsworth,^  but  deciding  on  the  additional  facts  in  this  case,  Ave  think 
this  incident  in  the  contract  does  not  alter  its  nature ;  and  the  objec- 
tion founded  on  the  statute  will  not  prevail. 

This  makes  it  unnecessary  to  consider  the  other  points,  and  the  rule 
will  be  discharged.  .  Mule  discharged.^ 


i]kyy   ^      ^^^^^       HUMBLE    V.  MITCHELL. 

r^    ^\0      ,7'    In  the  Queen's  Bench,  November  27,  1839. 


t^  \Rej)orted  in  11  Adolphus  4~  Ellis,  205.] 


Assumpsit  by  the  pui'chaser  of  shares  in  a  joint-stock  company, 
called  the  Northern  and  Central  Bank  of  England,  against  the  vendor 
for  refusing  to  sign  a  notice  of  transfer  tendered  to  him  for  signature, 
and  to  deliver  the  certificates  of  the  shares,  without  which  the  shares 
could  not  be  transferred. 

1  6  East,  602. 

2  "  It  seems  pretty  plain  upon  principle  that  an  agreement  to  transfer  the  property 
in  something  that  is  attached  to  the  soil  at  the  time  of  the  agreement,  but  which  is 
to  be  severed  from  the  soil  and  converted  into  goods  before  the  property  is  to  be  trans- 
ferred, is  an  agreement  for  the  sale  of  goods  within  the  meaning  of  the  9  Geo.  IV. 
c.  14,  if  not  of  the  29  Car.  II.  c.  3.  The  agreement  is,  that  the  thing  shall  be  rendered 
into  goods,  and  then  in  that  state  sold ;  it  is  an  executory  agreement  for  the  sale  of 
goods  not  existing  in  that  capacity  at  the  time  of  the  contract.  And  when  the  agree- 
ment is,  that  the  property  is  to  be  transferred  before  the  thing  is  severed,  it  seems 
clear  enough  that  it  is  not  a  contract  for  the  sale  of  goods  :  it  is  a  contract  for  a  sale, 
but  the  thing  to  be  sold  is  not  goods.  If  this  be  the  principle,  the  true  subject  of 
inquiry  in  each  case  is,  wlien  do  the  parties  intend  that  the  property  is  to  pass  ?  If 
the  things  perish  by  inevitable  accident  before  tlie  severance,  whom  do  they  mean  to 
bear  the  loss  f  for  in  general  that  is  a  good  test  of  whether  they  intend  the  property 
to  pass  or  not ;  in  other  words,  if  the  contract  be  for  the  sale  of  the  things  after  they 
have  been  severed  from  the  land,  so  as  to  become  the  subject  of  larceny  at  common 
law,  it  is,  at  least  since  the  9  Geo.  IV.  c.  14,  a  contract  for  the  sale  of  goods,  wares, 
and  merchandise  within  the  17th  section.  On  the  whole  the  cases  are  very  much 
in  conformity  with  these  distinctions,  though  there  is  some  authority  for  saying  that 
a  sale  of  emblements  or  fixtures,  vesting  an  interest  in  them  whilst  in  that  capacity 
and  before  severance,  is  a  sale  of  goods  within  the  meaning  of  the  17th  section 
of  the  Statute  of  Frauds,  and  a  good  deal  of  authority  that  such  a  sale  is  not  a  sale  of 
an  interest  in  land  witliin  the  4th  section,  which  may  however  be  the  case,  though 
it  is  not  a  sale  of  goods,  wares,  and  merchandise  within  the  17th."  Blackburn  on 
Sale,  pp.  9-11. 

"  Growing  crops,  if  fntctus  i/idustriales,  are  chattels,  and  an  agreement  for  the  sale 
of  them,  whether  mature  or  immature,  whether  the  property  in  them  is  transferred 
before  or  after  severance,  is  not  an  agreement  for  the  sale  of  any  interest  in  land,  and 


SECT.    II.]  HUMBLE   V.   MITCHELL.  71 

Pleas.  1.  That  the  contract  mentioned  in  the  declaration  was  an 
entire  contract  for  the  sale  of  goods,  wares,  and  merchandises,  for  a 
price  exceeding  £10,  and  that  plaintiff  had  not  accepted  or  received 
the  said  goods,  &c.,  or  any  part  thereof,  and  did  not  give  any  thing  in 
earnest  to  bind  the  bargain  or  in  part  payment,  and  that  no  note  or 
memorandum  in  writing  of  the  bargain  was  made  and  signed  by 
defendant  or  his  agent  thereunto  lawfully  authorized.     Verification.^  .  .  . 

Replication,  to  the  first  plea,  denying  that  the  contract  was  for  the 
sale  of  goods,  wares,  &c.     Issue  thereon. 

At  the  trial  of  the  cause  before  Coleridge,  J.,  at  the  Liverpool  si)ring 
assizes,  1838,  the  jury  found  a  verdict  for  the  plaintiff,  subject  to  a 
motion  to  enter  a  verdict  for  the  defendant.  In  the  following  Easter 
term  Alexander  obtained  a  rule  nisi  according  to  the  leave  reserved, 
citing  Ex  parte  Vallance.^ 

Cresswell  and  Crompton  now  shewed  cause.  .  .  .  There  is  an  essen- 
tial difference  between  the  language  of  §  72  of  the  Bankrupt  Act,  6  G. 
4,  c.  16,  and  of  §  17  of  the  Statute  of  Frauds.  The  words  of  the  for- 
mer are  "  goods  and  chattels ; "  those  of  the  latter  are  "  goods,  wares, 

is  not  governed  by  tlie  4th  section  of  the  Statute  of  Frauds.    Growing  crops,  if  fructus 

naturales,  are  part  of  the  soil  before  severance,  and  an  agreement  therefore,  vesting  an 

interest  in  them  in  the  purchaser  before  severance,  is  governed  by  the  4th  section  ;  but 

■^    if  the  interest  is  not  to  be  vested  till  they  are  converted  into  chattels  by  severance, 

\    then  the  agreement  is  an  executory  agreement  for  the  sale  of  goods,  wares,  and  mer- 

'■    chandise,  governed  by  the  17th,  and  not  by  the  4th  section  of  the  statute. 

"  Wiiether  fnictus  indiisfn'alfs  while  still  growing  are  not  only  chattels,  but  '  goods, 
wares,  and  merchandise,'  has  not,  it  is  believed,  been  directly  decided.  Both  Bayley, 
J.,  and  Littledale,  J.,  expressed  an  opinion  in  the  affirmative  in  Evans  v.  Roberts,  5  B. 
&  C.  837,  840;  and  Mr.  Taylor,  in  his  Treatise  on  Evidence  (§  953,  ed.  I8G4),  treats 
the  proposition  as  being  perfectly  clear  in  the  same  sense.  Blackburn,  J.,  on  the 
contrary,  says  that  the  proposition  is  'exceedingly  questionable'  (Bl.  on  Sale,  p.  20), 
and  that  no  authority  was  given  for  it  in  Evans  v.  Roberts.  Mr.  Taylor  cites  no 
authority  for  liis  ojjinion.  The  cases  bearing  on  this  point  are  Mayfield  v.  Wadsley, 
3  B.  &  Cr.  357,  and  Hallen  v.  Runder,  1  Cr.  M.  &  Ros.  267.  In  the  former,  an  outgoing 
tenant  obtained  a  verdict,  which  was  upheld,  on  a  count  for  crops  bargained  and  sold, 
against  an  incoming  tenant  who  liad  agreed  to  take  them  at  a  valuation  ;  and  in  the 
latter,  counts  for  fixtures  bargained  and  sold  were  held  sufficient;  but  Blackburn,  J., 
observes  on  these  cases,  first,  that  in  Hallen  v.  Runder  the  court  expressly  decided 
that  an  agreement  for  the  sale  of  fixtures  between  the  landlord  and  tlie  outgoing 
tenant  was  not  a  sale  of  goods,  either  within  the  Statute  of  Frauds,  or  the  meaning  of 
a  count  for  goods  sold  and  delivered  ;  and,  secondly,  that  in  both  cases  tlie  land  itself 
was  to  pass  to  the  purcliaser,  and  the  agreement  was  therefore  rather  an  abandon- 
ment of  the  vendor's  right  to  diminish  the  value  of  the  land  than  a  sale  of  any  thing. 
The  learned  author  in  another  passage  (p.  17)  says  that  '  they  are  certainly  chattels, 
but  they  are  not  goods,  but  are  so  far  a  part  of  the  soil  that  larceny  at  common  law 
could  not  be  committed  on  them;'  and  Lord  EUenborough  was  also  of  this  opinion. 
(Parker  v.  Staniland.  11  East,  365.)  This  point  must,  it  is  apprehended,  be  considered 
as  still  undetermined."     Benjamin  on  Sale,  p.  94.  —  Ed. 

1  There  was  a  second  plea  ;  but,  as  it  raised  a  wholly  different  question,  it  is  omitted, 
as  well  as  the  arguments  and  decision  upon  it.  —  Ed. 

2  2  Deacon,  B.  C.  354. 


72  HUMBLE  V.   MITCHELL.  [CHAP.   I. 

and  merchandises."  The  word  "  chattel "  is  more  comprehensive  than 
any  word  used  in  the  Statute  of  Frauds,  and  has  been  construed  to 
inchide  debts,  bills,  bonds,  policies  of  insurance,  and  shares  in  a  joint- 
stock  company,  all  of  which  pass  to  the  assignees  when  in  the  posses- 
sion, order,  or  disposition  of  the  bankrupt.  Hornblower  v.  Proud.^ 
Here  no  stock,  goods,  or  tangible  property  passed  to  the  plaintiff  but 
only  a  right  to  participate  in  the  partnership  profits,  from  whatever 
source  those  profits  might  be  derived.  A  mere  right  of  action  is  a 
chattel  within  the  Bankrupt  Act ;  but  the  merchandises  within  the 
meaning  of  the  Statute  of  Frauds  must  be  such  as  are  capable  of  part 
delivery.  The  owner  of  a  share  is  not  necessarily  entitled  to  any  of 
the  real  or  personal  estate  or  property  of  the  company ;  or,  if  he  is,  the 
defendant  has  not  proved  it. 

Alexander,  contra.  .  .  .  There  is  no  direct  authority  in  point ;  but 
the  language  of  the  Bankrupt  Act  is  not  substantially  difierent  from 
that  of  the  Statute  of  Frauds ;  and  it  has  been  frequently  decided  that 
shares  in  public  companies  are  "  goods  and  chattels  "  of  which  a  bank- 
rupt may  be  the  reputed  owner  so  as  to  vest  them  in  the  assignees. 
Ex  parte  Burbridge,'^  Ex  parte  Ord,^  Ex  parte  Vallance.*  In  Hall 
V.  Franklin  ^  it  was  held  that  a  banking  company  is  a  trading  company. 

Lord  Dexmax,  C.  J.  .  .  .  The  point  is  whether  the  shares  in  this 
company  are  goods,  wares,  or  merchandises,  within  the  meaning  of  §  17 
of  the  Statute  of  Frauds.  It  appears  that  no  case  has  been  found 
directly  in  point ;  but  it  is  contended  that  the  decisions  upon  reputed 
ownership  are  applicable,  and  that  there  is  no  material  distinction 
between  the  words  used  in  the  Statute  of  Frauds,  and  in  the  Bankrupt 
Act.  I  think  that  both  the  language  and  the  intention  of  the  two  acts 
are  distinguishable,  and  that  the  decisions  upon  the  latter  act  cannot 
be  reasonably  extended  to  the  Statute  of  Frauds.  Shares  in  a  joint- 
stock  company  like  this  are  mere  choses  in  action,  incapable  of  dehvery, 
and  not  within  the  scope  of  the  17th  section.  A  contract  in  writing 
was  therefore  unnecessary. 

Pattesox,  Williams,  and  Coleridge,  JJ.,  concurred. 

Mule  discharged. 

1  2  B.  &  Aid.  327.  2  l*Deacon,  B.  C.  131.        »  1  Deacon,  B.  C.  166. 

4  2  Deacon,  B.  C.  854.        »  3  M.  &  W.  259. 


DUNNE    V.    FERGUSON. 


73 


f  y  DUNNE  V.  FERGUSON. 

In  the  Irish  Exchequer,  May  11,  1832. 

[Reported  in  Hayes,  540.] 

Trover  for  five  acres  of  turnips,  containing  a  large  quantity,  to  wit, 
5000  cart-loads,  &c.  In  October,  1830,  the  defendant  sold  to  the  plain- 
tifl"  a  crop  of  turnips  which  he  had  sown  a  short  time  previously,  for  a 
sura  less  than  £10.  In  February,  1831,  and  previously,  while  the  tur- 
nips were  still  in  the  ground,  the  defendant  severed  and  carried  aAvay 
considerable  quantities  of  them,  which  he  converted  to  his  own  use, 
and  for  Vhich  the  present  action  was  brought.  No  note  in  writing  was 
made  of  the  bargain.  The  action  was  tried  before  Joy,  C.  B.,  at  the 
sittings  in  Easter  tenn,  1831,  w-hen  the  jury  found  a  verdict  for  the 
plaintiff,  subject  to  certain  points  which  were  saved  by  the  learned 
judge  for  the  opinion  of  the  court ;  it  being  contended  for  the  defend- 
ant that  the  action  of  trover  did  not  lie  for  things  annexed  to  the  free- 
hold ;  and  that  the  contract  was  of  no  validity  for  want  of  a  note  or 
memorandimi  in  writing,  pursuant  to  the  Statute  of  Frauds. 

J.  D.  Jackson,  for  the  defendant.  The  i)laintiff  has  mistaken  his 
remedy.  Trespass  would  have  been  the  proper  form  of  action.  Wil- 
son V.  Mackreth,!  Crosby  v.  Wadsworth,^  Tompkinson  v.  Russell.^ 
To  sustain  the  action  of  trover,  the  plaintiff  must  show  that  the  sub- 
ject of  it  is  a  personal  chattel;  and  that  at  the  time  of  the  alleged 
conversion  he  was  entitled  to  the  possession  of  it.  In  the  present 
instance  he  can  do  neither ;  and  this  is  in  fact  an  action  of  trover  for 
the  land.  Co.  Litt.  4  h.  The  turnips  being  totally  unfit  for  use  at  the 
time  of  the  contract  made,  and  in  fact  not  taken  to  market  until  Christ- 
mas, it  was  clearly  the  sale  of  an  interest  in  land  (Emmerson  y.  Heelis,* 
Scorell  V.  Boxall  s),  since  the  purchaser  might  have  insisted  on  their 
remaining  in  the  ground :  that  being  so,  the  contract  ought  to  have 
been  evidenced  by  some  note  in  writing,  pursuant  to  the  statute.  For 
want  of  it,  it  falls  to  the  ground  (Waddington  v.  Bristow «)  ;  and  the 
turnips  must  be  taken  to  be  the  property  of  the  defendant  who  sowed 
them,  and  to  whom  the  field  belonged.  This  is  quite  distinguishable 
from  Parker  v.  Staniland,''  where  the  potatoes  were  sold  at  so  much  per 
sack,  and  were  to  be  taken  up  immediately. 

/.  Ilatchell  and  R.  Ilohart,  contra.  The  simple  question  is,  whether 
these  turnips  were  or  not  personal  chattels.  If  they  were  not,  the 
action  cannot  be  sustained.     It  by  no  means  necessarily  follows  that, 


1  3  Burr.  1824. 
*  2  Taunt.  38. 
1  11  East,  362. 


2  6  East,  602. 
5  1  Y.  &  J.  396. 


3  9  Price,  287. 

6  2  Bos.  &  Pul.  452. 


74  DUNNE   V.   FERGUSON.  [CHAP.    I. 

because  the  crop  was  not  sent  to  market  until  Christmas,  it  was  not 
ripe  in  October ;  and  even  thougli  that  were  so,  it  does  not  follow  that 
it  was  not  a  sale  of  goods  and  chattels.  A  growing  crop  of  potatoes 
sold  in  September  has  been  held  not  to  be  a  contract  for  the  sale  of 
lands,  but  of  goods.  Evans  v.  Roberts,^  Warwick  v.  Bruce.^  So  a  sale 
of  growing  timber  by  parol  has  been  held  to  be  good  within  the  Statute 
of  Frauds.  Anonymous,^  Smith  v.  Surman.*  The  same  has  been  held 
of  growing  wheat.  Mayfield  v.  Wadsley.^  In  Joyce  v.  Hayman  °  trover 
was  brought  for  twenty  acres  of  barley ;  and  although  it  was  strongly 
insisted  that  the  action  did  not  lie,  yet  the  Court  of  King's  Bench  held 
the  contrary.  Whether  the  crops  be  gi-owing  or  not,  it  is  clear  that 
they  would  be  emblements,  would  go  to  the  executor,  and  might  be 
seized  under  an  execution. 

Keller^  in  reply.  That  was  a  motion  in  arrest  of  judgment ;  and  the 
only  question  there  was  as  to  the  meaning  of  the  word  "  acres."  In 
Mayfield  v.  Wadsley  the  question  is  misstated  in  the  marginal  note, 
and  was  merely  whether  or  not  the  contract  was  executed.  The  true 
criterion  for  deciding  the  question  between  the  parties  is,  whether  at 
the  time  of  sale  the  crop  had  or  not  ceased  to  grow.  If  it  was  a 
growing  crop,  and  still  receiving  nourishment  from  the  soil,  trover  will 
not  lie  for  it.  Cur.  adv.  vult. 

Jot,  C.  B.  The  general  question  for  our  decision  is,  whether  in  this 
case  there  has  been  a  contract  for  an  interest  concerning  lands,  within 
the  2d  section  of  the  Statute  of  Frauds ;  or  whether  it  merely  con- 
cerned goods  and  chattels:  and  that  question  resolves  itself  into 
another,  whether  or  not  a  growing  crop  is  goods  and  chattels.  The 
decisions  have  been  very  contradictory,  —  a  result  which  is  always  to 
be  expected  when  the  judges  give  themselves  up  to  fine  distinctions. 
In  one  case  it  has  been  held  that  a  contract  for  potatoes  did  not  require 
a  note  in  writing,  because  the  potatoes  were  ripe  ;  and  in  another  case 
the  distinction  turned  upon  the  hand  that  was  to  dig  them ;  so  that  if 
dug  by  A.  B.,  they  were  potatoes  ;  and  if  by  C.  D,,  they  were  an  inter- 
est in  lands.  Such  a  course  always  involves  the  judge  in  perplexity, 
and  the  cases  in  obscurity.  Another  criterion  must  therefore  be  had 
recourse  to;  and  fortunately  the  later  cases  have  rested  the  matter  on 
a  more  rational  and  solid  foundation.  At  common  law  growing  crops 
were  uniformly  held  to  be  goods ;  and  they  were  subject  to  all  the 
legal  consequences  of  being  goods,  as  seizure  in  execution,  &c.  The 
Statute  of  Frauds  takes  things  as  it  finds  them ;  and  provides  for  lands 
and  goods,  according  as  they  were  so  esteemed  before  its  enactment. 
In  this  way  the  question  may  be  satisfiictorily  decided.  If,  before  the 
statute,  a  growing  crop  had  been  held  to  be  an  interest  in  lands,  it 

1  5  B.  &  Cr.  829.        2  2  M.  &  S.  205.         3  i  Lord  Raym.  182. 

*  9  B.  &  Cr.  561.        5  3  B.  &  Cr.  357.        ^  k.  B.  Ire.  T.  T.  1831,  4  L.  Rec.  273. 


SECT.    II.]  TISDALE   V.    HARRIS.  75 

would  come  witliin  the  2d  section  of  the  act ;  but  if  it  were  only 
goods  and  chattels,  then  it  came  within  the  13th  section.  On  this,  the 
only  rational  ground,  the  cases  of  Evans  v.  Roberts,^  Smith  v.  Surman,^ 
and  Scorcll  v.  Boxall'have  all  been  decided.  And  as  we  think  that 
groM'ing  crops  have  all  the  consequences  of  chattels,  and  are  like 
them  liable  to  be  taken  in  execution,  we  must  rule  the  points  saved 
for  the  plaintiff. 

Smith,  B.,  concurred. 

Pennefather,  B.  My  Lord  Chief  Baron  has  put  on  very  clear 
grounds  a  question  which  has  hitherto  been  much  confused. 

FosTEU,  B.,  concun-edi  )^ 

V       U^,    r    SAM^L   T.  TISDALE  v.  JAMES  HARRIS. 

0  C     /p^PREME  Judicial  Court  of  Massachusetts,  June  28, 1837,  and 
^     ^,1^  March  12,  1838. 

[Reported  ?n  20  PicLennfj,  9.] 

Assumpsit  by  the  plaintiff,  an  inhabitant  of  New  York,  against  the 
defendant,  a  merchant  of  Boston,  on  a  contract  alleged  to  have  been 
made  in  October,  1835,  by  which  the  defendant  agreed  to  sell  to  the 
plaintiff  200  shares,  with  all  the  earnings  thereon,  in  the  capital  stock 
of  the  Collins  Manuflicturing  Company,  a  corporation  established  in 
Connecticut,  at  610.80  per  share,  the  par  value  being  $10  per  share. 
The  object  of  the  suit  was  to  recover  $300,  being  the  amount  of  a 
dividend  of  15  per  cent,  on  the  200  shares,  declared  on  the  7th  of 
October,  1835,  and  payable  on  the  15th. 

At  the  trial  before  Shaw,  C.  J.,  Nathaniel  Curtis,  Jr.,  of  the  firm  of 
Curtis  &  Leaving,  being  called  as  a  witness  by  the  plaintiff  to  prove 
the  contract  and  the  breach,  the  defendant  objected  to  any  parol  evi- 
dence of  the  contract,  because  the  contract  was  reduced  to  writing,  and 
he  produced  a  memorandum  as  follows,  dated  Boston,  Oct.  14,  1835, 
directed  to  the  defendant  and  signed  by  Curtis  &  Leavins:  "Sir, 
When  you  will  furnish  the  certificate  of  200  shares  in  the  Collins  Man- 
ufacturing Company  to  Mr.  Samuel  T.  Tisdale,  of  New  York,  we 
hereby  agree  to  pay  you  for  the  same  at  108  cents  per  dollar  or  8  per 
cent,  advance  on  the  par  amount  of  610  each."  But  it  was  ruled  that 
this  paiier  was  not  to  be  considered  as  the  contract  of  the  defendant  to 
sell,  but  of  the  plaintiff  by  his  agents  to  pay;  that  if  the  contract  of 

1  5  B.  &  Cr.  829.  '^  9  B.  &  Cr.  561.  s  i  y.  &  j.  396. 

*  Approved  and  followed  in  Green  v.  Armstrong,  1  Denio,  550 ;  Buck  v.  Pickwell, 
1  WiUiams  (Vt.),  157;  Kingsley  v.  Holbrook,  45  N.  H.  313.  — Ed. 


76  TISDALE   V.    HARRIS.  [CHAP.    I. 

the  defendant  to  sell  was  not  reduced  to  writing,  the  objection  to  the 
parol  evidence  coiild  not  prevail. 

The  ^dtness  testified  that  at  the  request  of  the  plaintiff  he  applied 
to  the  defendant  about  the  10th  of  October,  1835,  in  order  to  ascertain 
whether  he  would  sell  his  shares ;  that  the  defendant  said  he  was  dis- 
posed to  sell  them  at  a  fair  price ;  that  subsequently  the  witness  offered 
him  the  par  value  ;  that  the  defendant  said  he  would  not  sell  at  that 
rate,  and  that  he  had  been  recently  informed  that  there  would  probably 
be  a  dividend  of  10  per  cent,  in  December ;  that  the  witness  took  the 
refusal  of  them  at  110.80  per  share  until  he  could  hear  from  New 
York;  that  having  received  a  letter  from  the  plaintiff,  dated  October 
13th,  he  called  on  the  defendant  and  asked  him  whether  in  offering  the 
shares  he  intended  to  include  all  the  earnings,  and  the  defendant  said 
yes,  all  that  belongs  to  them,  all  that  they  have  earned ;  that  the  wit- 
ness read  to  the  defendant  the  letter  of  October  13th,  in  which  the 
plaintiff  says  he  will  take  the  stock  at  $10.80  cash,  all  earnings  or  divi- 
dends of  the  company  up  to  the  time  of  sale  to  be  included;  that  the 
defendant  wrote  a  letter  to  his  agent  at  Hartford,  instructing  him  to 
transfer  the  shares  into  the  name  of  the  plaintiff,  and  send  the  certifi- 
cate to  the  defendant,  and  the  defendant  handed  the  letter  to  the  wit- 
ness to  forward,  which  he  did ;  that  the  defendant  said  he  did  not  know 
the  plaintiff,  and  he  thought,  as  the  shares  would  be  transferred,  he 
ought  to  have  something  to  seciire  him,  to  which  the  witness  assented, 
and  the  defendant  wrote  the  memorandum  which  the  witness  signed, 
agreeing  to  pay  him  the  money  ;  that  after  sufficient  time  had  elapsed 
for  an  answer,  the  ^vitness  called  on  the  defendant,  and  at  that  time 
both  the  witness  and  the  defendant  had  received  information  that  a 
dividend  of  15  per  cent,  had  been  declared  upon  the  shares;  that  at 
subsequent  interviews  the  witness  demanded  the  certificate  of  stock 
with  an  authority  to  receive  the  dividend,  and  was  ready  thereupon  to 
pay  the  money,  but  the  defendant  declined  giving  the  authority  to 
receive  the  dividend ;  that  some  weeks  afterwards,  and  after  this  action 
had  been   commenced,  the  defendant  called  on  the  fatness  for  the 
money  and  threatened  to  sue  him  upon  the  contract  which  he  had 
given  for  the  plaintiff,  if  he  did  not  pay  it ;  whereupon  the  witness  took 
the  certificate  and  paid  the  money,  but  under  an  express  declaration 
that  it  was  not  to  prejudice  the  claim  of  the  plaintifi"  for  the  dividend. 

The  question  of  fact  was  left  to  the  jury,  whether  the  bargaui  made 
by  the  defendant  for  the  sale  of  the  shares  included  all  dividends  then 
due  or  growing  due,  with  directions,  if  it  did,  to  find  a  verdict  for  the 
plaintiff;  otherwise  to  find  a  verdict  for  the  defendant. 

A  verdict  was  returned  for  the  plaintiff;  which  the  defendant  moved 
to  set  aside :  1.  Because  parol  evidence  was  admitted  to  add  to  and 
vary  a  written  contract  made  subsequently  to  the  conversation  and 
letters  referred  to ;  2.  Because  the  contract  set  up  was  within  the  Stat- 


SECT.    II. J  TISDALE    V.    HARRIS.  77 

ute  of  Frauds,  being  a  contract  for  the  sale  of  goods,  wares,  or  mer- 
chandise, for  the  price  of  fifty  doUars  or  more,  under  which  at  the  time 
of  action  brought  there  had  been  no  acceptance  of  the  same  or  any 
part  thereof  by  the  purdinser,  nor  any  earnest  or  ])art  pa}Tnent  made, 
and  so  was  incapable  of  proof  otherwise  than  by  memorandimi  in  writ- 
ing signed  by  the  defendant  or  his  agent. 

Bartlett  and  F.  C.  Loring^  in  su])port  of  tlie  motion,  cited  to  the 
point  that  the  contract  related  to  goods  or  merchandise,  and  so  was 
Avithin  the  Statute  of  F'rauds,  Jacob's  Law  Diet.  voc.  Chattels;  Anon. 

1  P.  AVms.  267 ;  Ford  and  Sheldon's  Case,  12  Co.  1 ;  Ryall  y.  Rolle,  1 
Atk.  165;  Roberts  on  Fr.  184;  2  Stark.  Evid.  (4th  Amer.  ed.)  6U8; 

2  Phillips  on  Evid.  (6th  ed.)  94;  Pickering  v.  Appleby,  Comyns,  354; 
Colt  V.  Nettervill,  2  P.  Wms.  307 ;  Mussell  w.  Cooke,  Prec.  Chan.  533. 

C.  P.  Curtis  and  B.  B.  Curtis,  contra,  cited  in  reference  to  the  same 
point  King  v.  Capper,  5  Price,  217;  Wildman  v.  Wildman,  9  Ves.  177 ; 
Eden  on  Bankr.  10 ;  2  Bl.  Com.  476  ;  Crull  v.  Dodson,  Select  Cas.  in 
Chan,  114;  Latham  v.  Barber,  6  T.  R.  67;  Dorriens  v.  Hutchinson,  1 
Smith,  420 ;  Bordenave  v.  Gregory,  5  East,  107  ;  Wickes  v.  Gordon, 
2  Barn.  &  Aid.  335;  3  Chitty's  Laws  of  Commerce,  &c.,  92,  284; 
Nightingal  v.  Devisme,  5  Burr.  2592. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court.  Several  points 
reserved  at  the  trial  of  this  cause  are  now  waived,  and  the  motion 
made  by  the  defendant  for  a  new  trial  is  placed  on  two  grounds. 

First,  that  under  the  circumstances  parol  evidence  was  not  admissi- 
ble, because  the  contract  of  the  pai-ties  was  reduced  to  writing,  and 
that  such  writing  was  the  best  evidence.  But  the  court  are  of  opinion 
that  the  objection  is  not  sustained  by  the  fact.  Xo  contract  in  writing 
was  made  by  the  defendant  with  the  plaintiflF  to  sell  those  shares. 
After  the  negotiation  had  resulted  in  an  agreement,  the  agent  of  the 
plaintifi;  in  the  name  of  his  firm,  gave  the  defendant  a  memorandum  in 
writing,  undertaking  to  pay  the  money  on  the  performance  of  the 
defendant's  agreement  to  transfer  the  shares.  But  it  was  not  signed 
by  the  defendant,  nor  by  any  person  for  him,  nor  did  it  purport  to 
express  his  agreement.  The  court  are  therefore  of  opinion  that,  the 
defendant's  agreement  not  being  reduced  to  writing,  the  parol  evidence 
was  rightly  admitted. 

But  by  far  the  most  important  question  in  the  case  arises  on  the 
objection  that  the  case  is  within  the  Statute  of  Frauds.  This  statute, 
which  is  copied  precisely  from  the  English  statute,  is  as  follows:  "No 
contract  for  the  sale  of  goods,  wares,  or  merchandise,  for  the  price  of 
ten  pounds  (!ii33.33)  or  more,  shall  be  allowed  to  be  good,  except  the 
purchaser  shall  accept  part  of  the  goods  so  sold,  and  actually  receive 
the  same,  or  give  something  in  earnest  to  bind  the  bargain  or  in  part 
payment,  or  that  some  note  or  memorandum  in  writing  of  the  said  bar- 
gain be  made  and  signed  by  the  parties  to  be  charged  by  such  contract, 
or  their  agent  thereunto  lawfully  authorized." 


78  TISDALE   V.    HARRIS.  [CHAP.    I. 

This  being  a  contract  for  the  sale  of  shares  in  an  incoi'porated  com- 
pany in  a  neighboring  State  for  the  price  of  more  than  ten  pounds, 
auJ  on  part  having  been  delivered,  and  no  purchase  money  or  earnest 
paid,  the  question  is,  whether  it  can  be  allowed  to  be  good  without  a 
note  or  memorandum  in  writing,  signed  by  the  party  to  be  charged 
wdth  it.  This  depends  upon  the  question,  whether  such  shares  are 
goods,  wares,  or  merchandise,  within  the  true  meaning  of  the  statute. 

It  is  somcAvhat  remarkable  that  this  question,  arising  on  the  stat.  29 
Car.  2,  in  the  same  terms  which  ours  has  copied,  has  not  been  definitively 
settled  in  England.  In  the  case  of  Pickering  v.  Appleby,  Com.  Rep. 
354,  the  case  was  directly  and  fully  argued  before  the  twelve  judges, 
who  were  equally  divided  upon  it.  But  in  several  other  cases  after- 
wards determined  in  chancery  the  better  opinion  seemed  to  be  that 
shares  in  incorporated  companies  were  within  the  statute  as  goods  or 
merchandise.  Mussell  v.  Cooke,  Prec.  in  Ch.  533 ;  Crull  v.  Dodson,  Sel. 
Cas.  in  Ch.  113. 

We  are  inclined  to  the  opinion  that  the  weight  of  authorities  in 
modern  times  is,  that  contracts  for  the  sale  of  stocks  and  shares  in 
incoii^orated  companies  for  more  than  ten  pounds,  are  not  valid,  ixnless 
there  has  been  a  note  or  memorandum  in  writing,  or  earnest  or  part 
payment.  4  Wheaton,  89,  note ;  3  Starkie  on  Evid.  (4th  Amer.  ed.) 
608. 

Supposing  this  a  new  question,  now  for  the  first  time  calling  for  a 
construction  of  the  statute,  the  court  are  of  opinion  that,  as  well  by  its 
tei'ms  as  its  general  policy,  stocks  are  fairly  within  its  operation.  The 
words  "goods"  and  "merchandise"  are  both  of  very  large  signification. 
J^ona,  as  used  in  the  civil  law,  is  almost  as  extensive  as  personal  prop- 
erty itself,  and  in  many  respects  it  has  nearly  as  large  a  signification  in 
the  common  law.  The  word  "  merchandise  "  also,  including  in  general 
objects  of  ti-aftic  and  commerce,  is  broad  enough  to  include  stocks  or 
shares  in  incorporated  companies. 

There  are  many  cases  indeed  in  which  it  has  been  held  in  England 
that  buying  and  selling  stocks  did  not  subject  a  person  to  the  ojjeration 
of  the  bankrupt  laws,  and  thence  it  has  been  argued  that  they  cannot 
be  considered  as  merchandise,  because  bankruptcy  extends  to  persons 
usino;  the  trade  of  merchandise.  But  it  must  be  recollected  that  the 
banki'upt  acts  were  deemed  to  be  highly  jDenal  and  coercive,  and  tended 
to  deprive  a  man  in  trade  of  all  his  j^roperty.  But  most  joint-stock 
companies  were  founded  on  the  hypothesis  at  least,  that  most  of  the 
shareholders  took  shares  as  an  investment  and  not  as  an  object  of 
traffic ;  and  the  construction  in  question  only  decided  that,  by  taking 
and  holding  such  shares  merely  as  an  investment,  a  man  should  not  be 
deemed  a  merchant  so  as  to  subject  himself  to  the  highly  coercive 
process  of  the  bankrupt  laws.  These  cases  therefore  do  not  bear  much 
on  the  general  question. 


BECT.    II.]  TISDALE   V.    HARRIS.  79 

The  main  argument  relied  upon  by  those  who  contend  that  shares 
are  not  Avitliin  the  statute  is  this :  That  statute  provides  that  such  con- 
tract shall  not  be  good,  &c.,  among  other  things,  except  the  purchaser 
shall  acce])t  part  of  the  goods.  From  this  it  is  argued  that,  by  neces- 
sary implication,  the  statute  applies  only  to  goods  of  "which  part  may 
be  delivered.  This  seems,  however,  to  be  rather  a  narrow  and  forced 
construction.  The  provision  is  general  that  no  contract  for  the  sale  of 
goods,  etc.,  shall  be  allowed  to  be  good.  The  exception  is  when  part 
are  delivered ;  but  if  part  cannot  be  delivered,  then  the  exception  can- 
not exist  to  take  the  case  out  of  the  general  prohibition.  The  provis- 
ion extended  to  a  great  variety  of  objects,  and  the  exception  may  well 
be  construed  to  apply  only  to  such  of  those  objects  to  Avhich  it  is 
applicable,  without  afiecting  others  to  which  from  their  nature  it  can- 
not apply. 

There  is  nothing  in  the  nature  of  stocks  or  shares  in  companies, 
which  in  reason  or  sound  policy  should  exempt  contracts  in  respect  to 
them  from  those  reasonable  restrictions  designed  by  the  statute  to 
prevent  frauds  in  the  sale  of  other  commodities.  On  the  contrary,  these 
companies  have  become  so  numerous,  so  large  an  amount  of  the  prop- 
erty of  the  community  is  now  invested  in  them,  and  as  the  ordinary 
indicia  of  jjroperty  arising  from  delivery  and  possession  cannot  take 
place,  there  seems  to  be  peculiar  reason  for  extending  the  provisions  of 
this  statute  to  them.  As  they  may  properly  be  included  under  the 
term  "  goods,"  as  they  are  within  the  reason  and  policy  of  the  act,  the 
court  are  of  opinion  that  a  contract  for  the  sale  of  shares,  in  the  absence 
of  the  other  recLuisites,  must  be  jjroved  by  some  note  or  memorandum 
in  writing;  and  as  there  was  no  such  memorandum  in  writing  in  the 
present  case,  the  plaintiff  is  not  entitled  to  maintain  this  action.  As  to 
the  argument  that  here  was  a  part  perfonnance  by  a  payment  of  the 
money  on  one  side  and  the  delivery  of  the  certificate  on  the  other, 
these  acts  took  place  after  this  action  was  brought,  and  cannot  there- 
fore be  relied  upon  to  show  a  cause  of  action  when  the  action  was  com- 
menced. Verdict  set  aside,  and  2)laintiff  nonsuit} 

1  And  see  North  v.  Forest,  15  Conn.  400,  and  Colvin  v.  Williams,  3  Har.  &,  John. 
38,  ace. — Ed. 


y/« 


^'r^ 


whitakesh  v.  walker. 


[chap.  I. 


Ft 


•■a 


WHITMARSH  v.  HEZEKIAH  WALKER,  Jb. 


p   Supreme  Judicial  Court   of   Massachusetts,  September   Term, 

1840. 

[Reported  in  1  Metcalf,  313.] 

Assumpsit  for  money  had  and  received,  and  on  an  agreement  set 
forth  with  slight  variations  in  different  comits,  but  in  all  of  them  in 
substance  as  follows,  viz.,  that  in  September,  1838,  the  plaintiff  at  the 
defendant's  request  bought  of  him  a  great  number  of  multicaulis  mul- 
berry-trees at  the  rate  of  twenty-five  cents  per  hill,  to  be  dejivered  on 
the  ground  where  th'ey  then  were  pn^eijiand  by  the  plaintiff|  thattne' 
ptaiTitiff  then  paic[  llO  in  part  of  the  price,  and  promised  to  pay" the 
residue  of  the  price  on  the  delivery  of  the  trees ;  and  that  in  consid- 
eration thereof  the  defendant  then  promised  to  deliver  the  trees  to  the 
plaintiff  on  demand.  A  demand  by  the  plaintiff  was  alleged,  and  also 
an  offer  of  payment  by  him,  and  a  refusal  by  the  defendant  to  deliver. 

It  appeared  at  the  trial  before  Wilde,  J.,  that  the  agreement  declared 
on  was  made,  but  not  reduced  to  writing ;  that  the  jDrice  of  the  trees 
was  more  than  |50,  but  that  the  plaintiff  paid  |10  as  alleged  in  the 
declaration ;  and  that  the  trees,  at  the  time  of  the  agreement,  were 
growing  in  the  defendant's  dose,  and  were  nursery  trees  raised  to  be 
sold  and  transj^lanted. 

The  defendant  objected  that  the  agreement  was  void  by  the  Statute 
of  Frauds.  The  judge  overruled  the  objection,  and  a  verdict  was  found 
for  the  plaintiff.     New  trial  to  be  had  if  the  judge  erred. 

Wells^  for  the  defendant,  cited  Emmerson  v.  Heelis,  2, Taunt.  38; 
Mayfield  v.  Wadsley,  3  Barn.  &  Cres.  357 ;  Earl  of  Falmouth  v.  Thomas, 
1  Crompt.  &  Mees.  89 ;  Scorell  v.  Boxall,  1  Younge  &  Jerv.  396  ;  Shel- 
ton  V.  Livius,  2  Tyrw.  420  ;  Crosby  v.  Wadsworth,  6  East,  602  ;'  Com. 
Dig.,  Biens  (H.) ;  1  Swift's  Digest  (ed.  of  1822),  258. 

Huntington^  for  the  plaintiff,  relied  on  Miller  v.  Baker,  1  Met.  27,  as 
having  decided  that  the  trees  were  personal  j^roperty.  He  also  cited 
1  Chit.  Gen.  Pract.  93;  1  Ld.  Raym.  182, ^er  Treby,  C.  J.;  Erskme 
V.  Plummer,  7  Greenl.  447 ;  Latham  v.  Atwood,  Cro.  Car.  515  ;  Parker 
V.  Staniland,  11  East,  362 ;  Warwick  v.  Bruce,  2  M.  &  S.  205 ;  Evans 
V.  Roberts,  8  Dowl.  &  Ryl.  611 ;  Smith  v.  Surman,  9  Barn.  &  Cres.  561 ; 
Bostwick  V.  Leach,  3  Day,  484;  Benedict  v.  Benedict,  5  Day,  478; 
Newcomb  v.  Ramer,  2  Johns.  421,  note ;  Austin  v.  Sawyer,  9  Cow.  39 ; 
Mumford  v.  Whitney,  15  Wend.  380. 

Wilde,  J.  This  action  is  founded  on  a  parol  agi-eement,  whereby 
the  defendant  agreed  to  sell  to  the  plaintiff  two  thousand  mulberry- 
trees  at  a  stipulated  price ;   the  trees  at  the   time  of  the  ■  agreement 


SECT.   II.]  WHITMARSH   V.    WALKER.  81 

being  growing  in  the  close  of  the  defendant.  It  was  proved  at  the 
trial  that  the  plaintiff  paid  the  defendant  in  hand  the  sum  of  ten  dol- 
lars in  part  pajinent  of  the  price  thereof,  and  promised  to  pay  the 
residue  of  the  price  on  the  delivery  of  the  trees,  which  the  defendant 
promised  to  deliver  on  demand,  but  Avhich  promise  on  his  part  he 
afterwards  refused  to  perform.  And  the  defence  is  that  the  contract 
was  for  the  sale  of  an  interest  in  land,  and  therefore  void  by  the  Rev. 
Sts.  c.  74,  §  1. 

In  support  of  the  defence  it  has  been  argued  that  trees  growing  and 
rooted  in  the  soil  aj)pertain  to  the  realty,  and  that  the  contract  in 
question  was  for  the  sale  of  trees  rooted  and  growing  in  the  soil  of  the 
defendant  at  the  time  of  the  sale.  On  the  part  of  the  plaintiff  it  was 
contended  that  the  trees  contracted  for  were  raised  for  sale  and  trans- 
plantation ;  and  like  fruit-trees,  shrubs  and  plants,  rooted  in  the  soil  of 
a  nursery  garden,  are  not  within  the  general  rule,  but  are  to  be  consid- 
ered as  personal  chattels.  This  question  Avas  discussed  and  considered 
in  Miller  i'.  Baker  (1  Met.  27),  and  we  do  not  deem  it  necessary  to  recon- 
sider it  in  reference  to  the  present  case.  We  do  not  consider  the 
agreement  set  forth  in  the  declaration  and  proved  at  the  trial  as  a 
contract  of  sale  consummated  at  the  time  of  the  agreement ;  for  the 
delivery  Avas  postponed  to  a  future  time,  and  the  defendant  was  not 
bound  to  complete  the  contract  on  his  part,  unless  the  plaintiff  should 
be  ready  and  Avilling  to  complete  the  payment  of  the  stipulated 
price.  Sainsbury  v.  Matthews,  4  Mees.  &  "VYelsb.  347.  Independently 
of  the  Statute  of  Frauds,  and  considering  the  agreement  as  valid  and 
binding,  no  property  in  the  trees  vested  thereby  in  the  plaintiff.  The 
delivery  of  them  and  the  payment  of  the  price  were  to  be  simulta- 
neous acts.  The  plaintiff  cannot  maintain  an  action  for  the  non- 
delivery without  proving  that  he  offered  and  Avas  ready  to  complete 
the  pa}'Tnent  of  the  price ;  nor  could  the  defendant  maintain  an  action 
for  the  price  Avitliout  proving  that  he  was  ready  and  offered  to  deliver 
the  trees.  According  to  the  true  construction'  of  the  contract,  as  Ave 
understand  it,  the  defendant  undertook  to  sell  the  trees  at  a  stipulated 
price,  to  sever  them  from  the  soil,  or  to  permit  the  plaintiff  to  sever 
them,  and  to  deli\'er  them  to  him  on  demand ;  he  at  the  same  time 
paying  the  defendant  the  residue  of  the  price.  And  it  is  immaterial 
whether  the  seA'erance  Avas  to  be  made  by  the  plaintiff  or  the  defend- 
ant. For  a  license  for  the  plaintiff  to  enter  and  remove  the  trees 
Avould  pass  no  interest  in  the  land,  and  Avould,  Avithout  Avriting,  be 
valid,  notAvithstanding  the  Statute  of  Frauds. 

This  subject  Avas  fully  considered  in  the  case  of  Tayler  i'.  Waters, 
7  Taunt.  374 ;  and  it  Avas  held  that  a  beneficial  license,  to  be  exercised 
upon  land,  may  be  granted  without  deed  and  Avithout  Avriting;  and 
that  such  a  license,  granted  for  a  A^aluable  consideration  and  acted 
upon,  cannot  be  countermanded.     The  subject  has  also  been  ably  and 

VOL.   I.  6 


82  BALDWIN   V.    WILLIAMS.  [CHAP.    I. 

elaborately  discussed  by  Chief  Justice  Savage  in  the  case  of  Mumford 
V.  Whitney,  15  Wend.  380,  in  which  all  the  authorities  are  reviewed; 
and  we  concur  in  the  doctrine  as  therein  laid  down,  namely,  that  a  per- 
manent interest  in  land  can  be  transferred  only  by  writing,  but  that  a 
license  to  enter  upon  the  land  of  another  and  do  a  particular  act  or  a 
series  of  acts,  without  transferring  any  interest  in  the  land,  is  valid, 
though  not  in  writing.  And  such  is  the  license  on  which  the  plaintiff 
relies  in  the  present  case. 

Chancellor  Kent  in  his  Commentaries,  vol.  iii.  p.  452,  3d  ed.,  very 
justly  remarks  that  "  the  distinction  between  a  privilege  or  easement 
carrying  an  interest  in  the  land,  and  requiring  a  writing  within  the 
Statute  of  Frauds  to  support  it,  and  a  license  which  may  be  by  parol, 
is  quite  subtile,  and  it  becomes  difficult  in  some  of  the  cases  to  discern 
a  substantial  difference  between  them."  But  no  such  difficulty  occurs 
in  the  present  case.  The  plaintiff  claims  no  right  to  enter  on  the 
defendant's  land  by  virtue  of  the  license.  It  is  admitted  that  he  had  a 
legal  right  to  revoke  his  license.  But  if  he  exercised  his  legal  right  in 
violation  of  his  agreement,  to  the  plaintiff's  prejudice,  he  is  responsible 
in  damages.  We  think  it  therefore  clear  that,  giving  to  the  contract 
the  construction  already  stated,  the  plaintiff  is  entitled  to  recover.  If 
for  a  valuable  consideration  the  defendant  contracted  to  sell  the  trees 
and  to  dehver  them  at  a  future  time,  he  was  bound  to  sever  them  from 
the  soil  himself,  or  to  permit  the  plaintiff  to  do  it ;  and  if  he  refused  to 
comply  with  his  agreement,  he  is  responsible  in  damages. 

Judgment  on  the  verdict} 


LUKE  BALDWIN  w.  AARON  D.   WILLIAMS. 

Supreme  Judicial  Court  of  Massachusetts,   November  Term, 

1841. 

[Reported  in  3  Metcalf,  365.] 

This  case  was  tried  before  Wilde,  J.,  who  made  the  following  report 
of  it :  — 

This  was  an  action  of  assumpsit,  and  the  declaration  set  forth  an 
agreement  of  the  plaintiff  that  he  would  bargain,  sell,  assign,  transfer, 
and  set  over  to  the  defendant,  and  indorse  without  recourse  to  him, 
the  plaintiff,  in  any  event,  two  notes  of  hand  by  him  held,  signed  by 
S.  J.  Gardner;  one  dated  April  24th,  1835,  for  the  papnent  of  11,500; 
the  other  dated  May  5th,  1836,  for  the  payment  of  $500 ;  and  both 
payable  to  the  plaintiff  or  order  on  the  3d  of  April,  1839,  with 
interest  from  their  dates.  The  declaration  set  forth  an  agreement  by 
the  defendant,  in  consideration  of  the  plaintiff's  agreement  aforesaid, 
1  See  Smith  v.  Bryan,  5  Maryland,  141.  —  Ed. 


SECT.    II.]  BALDWIN   V.    WILLIAMS.  83 

and  in  payment  for  said  Gardner's  said  notes,  to  i)ay  tlic  plaintiflf 
$1,000  in  cash,  and  to  give  the  plaintiff"  a  post  note,  made  by  the 
Lafayette  Bank,  for  $1,000,  and  also  a  note  signed  by  J.  B.  Russell  & 
Co.  and  indorsed  by  D.  W.  Williams  for  $1,000. 

The  plaintiff"  at  the  trial  proved  an  oral  agreement  with  the  de- 
fendant as  set  forth  in  the  declaration,  and  an  ofl'er  by  the  plaintiff"  to 
comply  with  his  pait  of  said  agreement,  and  a  tender  of  said  Gardner's 
said  notes,  indorsed  by  the  jilaintiff"  without  recourse  to  him  in  any 
event,  and  a  demand  upon  the  defendant  to  fulfil  his  part  of  said 
agreement,  and  the  refusal  of  the  defendant  to  do  so.  But  the  plain- 
tiff" introduced  no  evidence  tending  to  show  that  any  thing  passed 
between  the  parties  at  the  time  of  making  the  said  agreement,  or  was 
given  in  earnest  to  bind  the  bargain. 

The  judge  advised  a  nonsuit  upon  this  evidence,  because  the  con- 
tract was  not  in  writing  nor  proved  by  any  note  or  memorandum 
in  writing  signed  by  the  defendant  or  his  agent,  and  nothing  was 
received  by  the  purchaser,  nor  given  in  earnest  to  bind  the  bargain.  A 
nonsuit  was  accordingly  entered,  Avhich  is  to  stand  if  in  the  opinion 
of  the  whole  court  the  agreement  set  forth  in  the  declaration  falls 
within  the  Statute  of  Frauds  (Rev.  Sts.,  c.  74,  §  4)  ;  otherwise,  the  non- 
suit to  be  taken  oflT,  and  a  new  trial  granted. 

Clar/ce,  for  the  plaintiflf.  The  contract  declared  on  is  not  for  a  sale, 
but  for  an  exchange ;  and  exchanges  are  not  Avithin  the  Statute  of 
Frauds.  Roberts  on  Frauds,  164,  note  (81).  The  Rev.  Sts.  c.  74,  §  4, 
apply  only  to  a  "  contract  for  the  sale  of  any  goods,  wares,  or  mer- 
chandise ; "  and  choses  in  action  fall  within  neither  of  these  terms. 
Swinb.,  Part  VIII.  §10;  3  Bl.  Com.  145;  1  Chit.  Gen.  Pract.  97; 
Green  v.  Symonds,  1  Bro.  C.  C.  129,  note ;  1  Roper  on  Leg.  (1st  Amer. 
ed.)  190;  1  Phil.  Ins.  (lsted.)66;  Whiton  v.  Old  Colony  Ins.  Co., 
2  Met.  1 ;  2  Williams  on  Executors,  749. 

The  decision  of  this  court  in  Tisdale  v.  Han-is,  20  Pick.  9,  that  a 
contract  for  the  sale  of  shares  in  a  manufacturing  corporation  is  within 
the  Statute  of  Frauds,  is  directly  contrary  to  a  decision  since  made  by 
the  Court  of  King's  Bench  in  England.  In  Humble  v.  Mitchell,  11 
Adolph.  &  Ellis,  207,  it  was  held  that  a  contract  for  the  sale  of  shares 
in  a  joint-stock  banking  company  need  not  be  in  writing.  Lord  Den- 
man  said,  "  Shares  in  a  joint-stock  company  like  this  are  mere  choses 
in  action,  incapable  of  delivery,  and  not  within  the  scope  of  the  17th 
section "  of  the  St.  29  Car.  II.  c.  3,  which  is  like  §  4  of  c.  74  of  our 
Rev.  Sts. 

S.  D.  Parker,  for  the  defendant.  The  case  of  Tisdale  v.  Harris  is 
decisive  of  the  case  at  bar.  Promissory  notes  are  "  goods,"  and  for 
many  purposes  they  are  "merchandise."  Bona  notahilia  include 
notes  and  bills  of  exchange,  and  the  place  of  administration  is  deter- 
mined by  the  locality  of  such  choses  in  action.  1  Williams  on  Execu- 
tors, 177,  178. 


84  BALDWIN   V.    WILLIAMS.  [CHAP.    I. 

The  declaration  shows  a  contract  of  sale,  and  not  of  exchange. 
If  it  does  not,  there  is  no  cause  of  action  on  the  record.  But  an  ex- 
change of  goods  is  a  barter  sale.  It  is  not  necessary  that  money  should 
be  received  or  be  stipulated  for,  in  order  to  constitute  a  sale. 

Wilde,  J.  This  action  is  founded  on  an  oral  contract,  and  the 
question  is,  whether  it  is  a  contract  of  sale  within  the  Statute  of 
Frauds. 

The  plaintiff's  counsel  contends  in  the  first  place  that  the  contract 
is  not  a  contract  for  the  sale  of  the  notes  mentioned  in  the  declaration, 
but  a  mere  agreement  for  the  exchange  of  them;  and  in  the  second 
place  that  if  the  agreement  is  to  be  considered  as  a  contract  of  sale, 
yet  it  is  not  a  contract  within  that  statute. 

As  to  the  first  point,  the  defendant's  counsel  contends  that  an  agree- 
ment to  exchange  notes  is  a  mutual  contract  of  sale.  But  it  is  not 
necessary  to  decide  this  question,  for  the  agreement  of  the  defendant, 
as  alleged  in  the  declaration,  was  to  pay  for  the  plaintiff's  two  notes 
61,000  in  cash,  in  addition  to  two  other  notes;  and  that  this  was  a 
contract  of  sale  is,  we  think,  very  clear. 

The  other  question  is  more  doubtful.  But  the  better  opinion  seems 
to  us  to  be,  that  this  is  a  contract  Avithin  the  true  meaning  of  the 
Statute  of  Frauds.  It  is  certainly  within  the  mischief  thereby  intended 
to  be  prevented ;  and  the  words  of  the  statute,  "  goods "  and  "  mer- 
chandise," are  sufl'iciently  comprehensive  to  include  promissory  notes 
of  hand.  The  word  "  goods  "  is  a  word  of  large  signification  ;  and  so 
is  the  word  "merchandise."     Jlerx  est  quicquid vendi x>otest. 

In  Tisdale  v.  Hams,  20  Pick.  9,  it  w^as  decided  that  a  contract  for 
the  sale  of  shares  in  a  manufacturing  corporation  is  a  contract  for  the 
sale  of  goods  or  merchandise  within  the  statute ;  and  the  reasons  on 
which  that  decision  was  founded  seem  fully  to  authorize  a  similar 
decision  as  to  promissory  notes  of  hand.  A  different  decision  has  re- 
cently been  made  in  England  in  Humble  v.  Mitchell,  3  Perry  &  Davi- 
son, 141 ;  s.  c.  11  Adolph.  &  Ellis,  207.  In  that  case  it  was  decided 
that  a  contract  for  the  sale  of  shares  in  a  joint-stock  banking  company 
was  not  within  the  Statute  of  Frauds.  But  it  seems  to  us  that  the 
reasoning  in  the  case  of  Tisdale  v.  Harris  is  very  cogent  and  satis- 
factory ;  and  it  is  supported  by  several  other  cases.  In  Mills  v.  Gore, 
20  Pick.  28,  it  was  decided  that  a  bill  in  equity  might  be  maintained 
to  compel  the  re-delivery  of  a  deed  and  a  promissory  note  of  hand,  on 
the  provision  in  the  Rev.  Sts.  c.  81,  §  8,  w^hich  gives  the  court  jui'isdic- 
tion  in  all  suits  to  compel  the  re-delivery  of  any  goods  or  chattels 
whatsoever,  taken  and  detained  from  the  owner  thereof,  and  secreted 
or  withheld,  so  that  the  same  cannot  be  replevied.  And  the  same 
point  was  decided  in  Clapp  v.  Shephard,  23  Pick.  228.  In  a  former 
statute  (St.  1823,  c.  140),  there  was  a  similar  provision  which  ex- 
tended  expressly  to  "any  goods   or   chattels,  deed,  bond,  note,  bill, 


SECT.    III.]  BALDEY    V.    PARKER. 


85 


specialty,  writing,  or  other  personal  property."  And  the  learned  Com- 
missioners, in  a  note  on  the  Rev.  Sts.  c.  81,  §  8,  say  that  the  Avords 
" '  goods  or  chattels '  are  supposed  to  comprehend  the  several  partic- 
ulars immediately  folloAving  them  in  St.  1823,  c.  140,  as  well  as  many 
others  that  are  not  mentioned." 

The  word  "  chattels  "  is  not  contained  in  the  provision  of  the  Stat- 
ute of  Frauds ;  but  personal  chattels  are  movable  goods,  and  so  far 
as  these  words  may  relate  to  the  question  under  consideration  they 
seem  to  have  the  same  meaning.  But  however  this  may  be,  we 
think  the  present  case  cannot  be  distinguished  in  princiijle  from 
Tisdale  v.  Harris ;  and  upon  the  authority  of  that  case,  taking  into 
consideration  again  the  reasons  and  })rinciples  on  which  it  was  de- 
cided, we  are  of  opinion  that  the  contract  in  question  is  within  the 
Statute  of  Frauds,  and  consequently  that  the  motion  to  set  aside  the 
nonsuit  must  be  overruled. 


=/>' 


^ 


>  SECTION   III 

J     ^  "  FoTythe  Price  of  Ten  Pounds  Sterling  or  Upwa 
ly       ^        V  BALDEY   AND   Another  v.   PARIvER.  J^^ 

>        \}    V     ?•  '  ^^  '^°^  King's  Bench,  June  5, 1823. 

-V^    Assumpsit  for  goods  sold  and  delivered.     Plea,  general  issue.     At 
PV^     the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  Trinity  term, 
1822,  the  following  appeared  to  be  the  llicts  of  the  case :  The  plaintiffs 
are  linen-drapers,  and  the  defendant  came  to  their  shop  and  bargained 
for  various  articles.     A^  separate  price  was  agreed  upon  for  each,  and 
no  one  article  was  of  the  value  of  £10.     Some  were  measured  in  his 
presence;  some  he  marked  with  a  pencil;  others  he  assisted  in  cutting 
from  a  larger  bulk.   He  then  desired  an  account  of  the  whole  to  be  sent 
to  his  house,  and  went  away.     A  bill  of  parcels  was  accordingly  made 
out  and  sent  by  a  shopman.     The  amount  of  the  goods  was  £70.     The 
defendant  looked  at  the  account,  and  asked  what  discount  would  bo 
allowed  for  ready  money,  and  was  told  £5  per  cent. ;  he  replied  that  it 
was  too  little,  and  requested  to  see  the  person  of  whom  he  bought  tho 
goods  (Baldey),  as  he  could  bargain  with  him  respecting  the  discount, 
and  said  that  he  ought  to  be  allowed  £20  per  cent.     The  goods  were 
afterwards  sent  to  the  defendant's  house,  and  he  refused  to  accept 


86  BALDEY   V.    PARKER.  [CHAP.   I. 

them.  The  Lord  Chief  Justice  thought  that  this  was  a  contract  for 
goods  of  more  than  the  value  of  £10  within  the  meaning  of  the  17th 
section  of  the  Statute  of  Frauds,  and  not  within  any  of  the  exceptions 
there  mentioned,  and  directed  a  nonsuit ;  but  gave  the  plaintiiFs  leave 
to  move  to  enter  a  verdict  in  their  favor  for  £70.  A  rule  having  accord- 
ingly been  obtained  for  that  purpose, 

Scarlett  and  K  Zaices  now  shewed  cause.  It  is  quite  clear  that  thia 
was  an  entire  contract  for  the  whole  of  the  goods.  Suppose  after  the 
bargain  for  them  all  was  made,  the  plaintiffs  had  refused  to  let  the 
defendant  have  some  one  particular  article,  they  could  not  have  com- 
pelled him  to  take  the  residue ;  or  if  one  of  the  articles  when  sent 
home  differed  from  that  bargained  for,  the  purchaser  might  have 
rejected  the  Avhole,  for  no  jury  would  ever  have  found  that  there  were 
separate  contracts,  and  have  compelled  him  to  take  that  part  which 
corresponded  with  the  order.  Then  as  to  the  supposed  acceptance,  the 
plaintiffs  always  retained  their  lien  for  the  price ;  the  defendant  had 
no  right  to  take  away  the  goods  without  paying  for  them,  nor  could  he 
have  maintained  trover  without  tendering  the  price.  There  was  not 
then  any  such  change  of  possession  as  contemplated  by  the  statute. 

Denman  and  Piatt,  contra.  The  plaintiffs  are  entitled  to  a  verdict 
on  both  grounds.  For  there  was  a  separate  and  distinct  bargain  for 
each  article ;  and  even  if  that  were  not  so,  the  defendant  accepted  the 
goods,  so  as  to  take  the  case  out  of  the  Statute  of  Frauds.  Whether 
the  contracts  w^ere  several  or  not  cannot  depend  upon  the  time  when 
the  various  articles  were  purchased,  but  upon  what  passed  at  the  mak- 
ing of  the  bargain.  Now  it  was  distinctly  proved  that  a  separate  price 
was  fixed  upon  each  article,  and  the  purchase  of  each  Avas  complete 
before  the  parties  went  on  to  bargain  for  any  others.  If  that  be  not 
so,  it  will  be  difficult  to  detenuine  what  space  of  time  must  elapse 
between  the  purchase  of  any  two  articles,  in  order  to  make  the  con- 
tracts separate.  In  Emmerson  v.  Heelis^  it  was  held  that  the  pur- 
chaser of  several  lots  at  an  auction  was  to  be  considered  as  making  a 
separate  contract  for  each  lot.  Had  the  defendant  left  the  shop  for  a 
few  minutes  between  the  purchase  of  each  article,  that  certainly  Avould 
have  made  them  separate  contracts,  and  there  does  not  appear  to  be 
any  substantial  difference  between  such  a  case  and  the  present.  Then 
as  to  the  second  point,  there  was  a  comjilete  delivery  and  acceptance 
within  the  meaning  of  the  statute.  There  was  a  complete  change  in 
the  state  of  the  property.  The  defendant  assisted  in  measuring  the  arti- 
cles, and  in  severing  them  from  the  bulk  ;  the  price  of  each  was  fixed ; 
so  that  nothing  remained  to  be  done  before  they  were  to  be  delivered 
to  the  defendant.  The  change  of  property  was  therefore  complete. 
Rugg  V.  Minett.2  Some  the  defendant  actually  marked  with  a  pencil ; 
and  in  Hodcrson  v.  Le  Bret  ^  that  was  considered  as  an  acceptance.  So 
I  2  Taunt.  38.  «  11  East,  210.  »  1  Campb.  233. 


SECT.   III.]  BALDEY   V.   PARKER.  87 

also  was  cutting  off  the  pegs  in  pipes  of  wine.  Anderson  v.  Scot.^  The 
policy  of  the  Statute  of  Frauds  was,  that  a  more  verbal  agreement 
should  not  hind  ;  hut  it  does  not  apply  where  any  act  has  been  done 
to  shew  the  approval  of  the  contract.  Chaplin  r.  Rogers,^  Elmore 
V.  Stone,^  Searle  and  others  v.  Keeves.*  [HoLnoYD,  J.  Hanson  v. 
Armitage  ^  and  Carter  v.  Toussaint  ®  are  strong  authorities  against  you.] 
In  the  former  the  purchaser  had  not  exercised  any  judgment  on  the 
article  ordered,  and  in  the  latter  the  firing  of  the  horse  was  the  act  of 
both  parties,  and  not  done  to  shew  an  approval  of  the  contract.  Neither 
does  HoAve  v.  Palmer^  apply^  foi'  the  goods  were  severed  by  the  vendor 
alone.  With  respect  to  the  vendor's  right  of  lien,  tliat  has  never  been 
decided  to  be  the  criterion  by  which  cases  of  this  nature  are  to  be 
judged  of.  Indeed  lien  unports  that  the  property  has  passed.  [IIol- 
BOYD,  J.  If  t}ie  property  has  passed  subject  to  a  hen,  is  that  a  delivery 
and  acceptance  within  the  meaning  of  the  statute  ?] 

Abbott,  C.  J.  We  have  given  our  opinion  upon  more  than  one 
occasion  that  the  29  Car.  2,  c.  3,  is  a  highly  beneficial  and  remedial 
statute.  We  are  therefore  bovmd  so  to  construe  it  as  to  further  the 
object  and  intention  of  the  Legislature,  which  was  the  prevention  of 
fraud.  It  appeared  from  the  facts  of  this  case  that  the  defendant  went 
into  the  plaintifi^'s  shop  and  bargained  for  various  articles.  Some  were 
severed  from  a  larger  bulk,  and  some  he  marked  in  order  to  satisfy 
himself  that  the  same  were  afterwards  sent  home  to  him.  The  first 
question  is  whether  this  was  one  entire  contract  for  the  sale  of  all  the 
goods.  By  holding  that  it  was  not,  we  should  entirely  defeat  the  object 
of  the  statute.  For  then  persons  intending  to  buy  many  articles  at  one 
time,  amounting  in  the  whole  to  a  large  price,  might  withdraw  the  case 
from  the  operation  of  the  statute  by  making  a  separate  bargain  for  each 
article.  Looking  at  the  whole  transaction,  I  am  of  opinion  that  the 
parties  must  be  considered  to  have  made  one  entire  contract  for  the 
whole  of  the  articles.  The  plaintifis  therefore  cannot  maintain  this 
action  unless  they  can  shew  that  the  case  is  within  the  exception  of  the 
29  Car.  2,  c.  3,  §  17.  Now  the  words  of  that  exception  are  peculiar, 
"except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually 
receive  the  same."  It  would  be  difilcult  to  find  Avords  more  distinctly 
denoting  an  actual  transfer  of  the  article  from  the  seller,  and  an  actual 
taking  possession  of  it  by  the  buyer.  If  we  held  that  such  a  transfer 
and  acceptance  were  complete  in  this  case,  it  Avould  seem  to  follow  as  a 
necessary  consequence  that  the  vendee  might  maintain  trover  without 
paying  for  the  goods,  and  leave  the  vendor  to  his  action  for  the  price. 
Such  a  doctrine  wovdd  be  highly  injurious  to  trade,  and  it  is  satisfixc- 
tory  to  find  that  the  law  warrants  us  in  saying  that  this  transaction  had 
no  such  effect. 

I  1  Campb.  235,  n  'M  East,  192.  ^  i  Taunt.  458. 

*  2  Esp.  698.  5  6  B.  &  A.  557.  «  5  B.  &  A.  855. 

'  3  B.  &  A.  321. 


88  BALDEY   V.    PARKER.  [CHAP.    I. 

Bayley,  J.     The   buyer   cannot  be   considered   to  have   actually- 
received  the  goods,  when  they  have  remained  from  first  to  last  in  the 
possession  of  the  seller.     The  plaintiiFs  are  not  assisted  by  the  excep- 
tion in  the  17th  section  of  the  Statute  of  Frauds.     Then  the  question 
is,  whether  there  was  a  separate  contract  for  each  article.    The  29  Car. 
2,  c.  3,  was  passed  to  guard  against  frauds  and  perjuries ;  and  it  must 
be  collected  from  the  17th  section  that  the  Legislature  thought  that  a 
contract  to  the  extent  of  £10  might  be  sufficient  to  induce  the  parties 
to  it  to  briusf  tainted  evidence  into  court.      Now  it  is  conceded  here 
that  on  the  same  day,  and  indeed  at  the  same  meeting,  the  defendant 
contracted  with  the  plaintijBs  for  the  purchase  of  goods  to  a  much 
greater  amount  than  £10.     Had  the  entire  value  been  set  upon  the 
whole  goods  together,  there  cannot  be  a  doubt  of  its  being  a  contract 
for  a  greater  amount  than  £10  within  the  17th  section  of  the  statute ; 
and  I  think  that  the  circumstance  of  a  separate  price  being  fixed  upon 
each  article  makes  no  such  diffi3rence  as  will  take  the  case  out  of  the 
operation  of  that  law.     It  has  been  asked  what  interval  of  time  must 
elapse  between  the  purchase  of  different  articles  in  order  to  make  the 
contract  separate ;  and  the  case  has  been  put  of  a  purchaser  leaving  a 
shop  after  making  one  purchase,  and  returning  after  an  interval  of  five 
or  ten  minutes  and  making  another.     If  the  return  to  the  shop  were 
soon  enough  to  warrant  a  supposition  that  the  whole  was  intended  to 
be  one  transaction,  I  should  hold  it  one  entire  contract  within  the 
meaning  of  the  statute.     I  am  therefore  of  opinion  that  this  rule  must 
be  discharged. 

HoLROYD,  J.     I  am  of  the  same  opinion.     The  intention  of  the  stat- 
ute was  that  certain  requisites  should  be  observed  in  all  contracts  for 
the  sale  of  goods  for  the  price  of  £10  and  upwards.     This  was  all  one 
transaction,  though  composed  of  different  parts.     At  first  it  appears  to 
have  been  a  contract  for  goods  of  less  value  than  £10,  but  in  the  course 
of  the  dealing  it  grew  to  a  contract  for  a  much  larger  amount.    At  last 
therefore  it  was  one  entire  contract  within  the  meaning  and  mischief 
of  the  Statute  of  Frauds,  it  being  the  intention  of  that  statute  that 
where  the  contract,  either  at  the  commencement  or  at  the  conclusion, 
amounted  to  or  exceeded  the  value  of  £10,  it  should  not  bind  unless 
the  requisites  there  mentioned  were  complied  with.     The  danger  of 
false  testimony  is  quite  as  great  where  the  bargain  is  ultimately  of  the 
value  of  £10,  as  if  it  had  been  originally  of  that  amount.     It  must 
therefore  be  considered  as  one  contract  within  the  meaning  of  the  act. 
With  respect  to  the  exception  in  the  17th  section,  it  may  perhaps  have 
been  the  intention  of  the  Legislature  to  guard  against  mistake  where 
the  parties  mean  honestly  as  well  as  against  wilful  fraud  ;  and  the  things 
required  to  be  done  will  have  the  effect  of  answering  both  those  ends. 
The  words  are,  "  except  the  buyer  shall  accept  part  of  the  goods  so 
sold  and  actually  receive  the  same,  or  give  something  in  earnest  to 


SECT.    III.]  BALDEY   V.    PARKER.  89 

bind  the  bargain  or  in  part  of  payment,  or  that  some  note  or  memo- 
randum in  Avriting  of  tlie  said  bargain  be  made  and  signed  by  the  par- 
ties to  be  cliarged  by  such  contract,  or  their  agents  thei-eunto  hiwfully 
authorized."  Eacli  of  those  particulars  cither  slicws  the  l>argaiii  to  be 
complete,  or  still  further  that  it  has  been  actually  in  j)art  ])erformed. 
The  change  of  possession  does  not  in  ordinary  cases  take  place  until 
the  completion  of  the  bargain ;  part  payment  also  shews  the  comple- 
tion of  it;  and  in  like  manner  a  note  or  memorandum  in  writing  signed 
by  the  ]>arties  ])lainly  proves  that  they  undei"stood  the  terms  u];)on 
which  they  were  dealing,  and  meant  finally  to  bind  themselves  by  the 
contract  therein  stated.  In  the  jiresent  case  there  is  nothing  to  shew 
that  some  further  arrangement  might  not  remain  unsettled  after  the 
price  for  each  article  had  been  agreed  upon.  There  was  neither  note 
nor  memorandum  in  writing;  no  part  of  the  price  was  paid,  nor  was 
there  any  such  change  of  ])Ossession  as  that  contemplated  by  the  stat- 
ute. Upon  a  sale  of  specific  goods  for  a  specific  price,  by  parting  with 
the  possession  the  seller  parts  with  his  lien.  The  statute  contemplates 
such  a  parting  with  the  possession  ;  and  therefore  as  long  as  the  seller 
preserves  his  control  over  the  goods  so  as  to  retain  his  lien,  he  prevents 
the  vendee  from  acce[)ting  and  receiving  them  as  his  own  within  the 
meaning  of  the  statute. 

Best,  J.  It  was  formerly  considered  that  a  delivery  of  the  goods 
by  the  seller  was  sufficient  to  take  a  case  out  of  the  17th  section  of  the 
Statute  of  Frauds ;  but  it  is  now  clearly  settled  that  there  must  be  an 
acceptance  by  the  buyer  as  well  as  a  delivery  by  the  seller.  The  stat- 
ute enacts  that,  Avhere  the  bargain  is  for  something  to  the  value  of  £10, 
it  shall  not  bind,  unless  something  unequivocal  has  been  done  to  shew 
that  the  contract  is  complete.  Nothing  of  that  kind  having  been  done 
in  this  case,  if  the  dealing  is  to  be  considered  as  one  entire  transaction 
it  is  clear  that  the  plaintiffs  cannot  recover :  whatever  this  might  have 
been  at  the  beginning,  it  was  clearly  at  the  close  one  bargain  for  the 
whole  of  the  articles.  The  account  Avas  all  made  out  together,  and 
the  conversation  about  discount  Avas  with  reference  to  the  whole 
account.  It  is  therefore  very  distinguishable  from  Emmorson  v.  Hee- 
lis,  where  a  complete  bargain  was  made  as  to  each  article  as  soon  as 
the  auctioneer  had  signed  his  name  to  it.  Hide  discharged.  ^ 

1  See  Champion  v.  Short,  1  Canapb.  53.  —  Ed. 


HARM  AN    V.   REEVE. 


[chap.  I. 


HARMAN  V.  REEVE. 
Common  Pleas,  May  31,  1856. 

{Reported  in  25  Law  Journal  Reports,  Common  Pleas,  257.] 

The  declaration  stated  that  on  the  28th  of  June,  1855,  in  consider- 
ation that  the  plaintiff  bargained  with  the  defendant  to  sell,  and  then 
sold  to  him,  a  certain  mare  and  foal,  and  that  the  plaintiff  would  at 
his  own  expense  keep  and  feed  the  said  mare  and  foal  for  a  certain 
time,  to  wit,  until  Michaelmas  then  next  ensuing,  and  that  the  plain- 
tiff would  at  his  own  ex^Dense  maintain,  feed,  and  keep  a  certain  other 
mare  and  foal  belonging  to  the  defendant  for  and  during  the  period  oi 
six  weeks,  the  defendant  agreed  to  purchase  from  the  plaintiff  the  mare 
and  foal  first-mentioned,  and  to  fetch  the  same  away  from  the  plaintiff's 
at  Michaelmas  aforesaid,  and  pay  to  the  plaintiff  the  sum  of  £30. 
Averment  of  performance  by  the  plaintiff  of  all  things  on  his  part  to 
be  performed  ;  and  that  all  things  had  happened  to  entitle  the  plaintiff 
to  have  the  contract  performed  on  the  defendant's  part.  Breach,  that 
the  defendant  did  not  nor  would  fetch  away  the  mare  and  foal  so 
agreed  to  be  purchased  and  fetched  away,  or  either  of  them,  or  pay  to 
the  plaintiff  the  said  sum  of  £30.     Special  damage. 

Plea  denying  the  contract. 

The  cause  was  tried  before  Jervis,  C.  J.,  at  the  last  spring  assizes  for 
Norfolk,  when,  the  plaintiff  having  proved  his  case  as  stated  in  the 
declaration,  it  was  objected  on  behalf  of  the  defendant  that  the  con- 
tract Avas  not  in  writing,  as  required  by  the  17th  section  of  the  Statute 
of  Frauds ;  whereupon  his  Lordship  nonsuited  the  plaintiff,  and  reserved 
leave  to  him  to  move  to  enter  a  verdict  for  £30. 

O'Malley  having  obtained  a  rule  nisi  accordingly, 

Byles^  Serjt.,  now  shewed  cause.  One  part  of  the  contract,  viz., 
that  which  relates  to  the  sale  of  the  plaintiff's  mare  and  foal  (which 
are  admitted  to  have  been  above  the  value  of  £10)  Avas  clearly  within 
the  17th  section  of  the  Statute  of  Frauds ;  but  the  other  part,  which 
relates  to  the  agistment  of  the  defendant's  mare  and  foal,  was  not ;  and 
the  question  arises,  how  for  that  section  applies  to  such  a  contract. 
The  words  of  that  section  are,  "  That  no  contract  for  the  sale  of  any 
goods,  Avares,  and  merchandises,  for  the  j^rice  of  £10  sterling  or  upAvards, 
shall  be  alloAved  to  be  good,  except  the  buyer  shall  accept  part  of  the 
goods  so  sold,  and  actually  receive  the  same,  or  give  something  in 
earnest  to  bind  the  bargain  or  in  part  payment,  or  that  some  note  or 
memorandum  in  writing  of  the  said  bargain  be  made  and  signed  by  the 
parties  to  be  charged  by  such  contract,  or  their  agents  thereunto  law- 
fully authorized."     This  is  not  the  case  of  a  divisible  contract,  for  the 


SECT.   III.]  HARMAN   V.    REEVE.  91 

consideration  on  one  side  is  the  payment  of  an  entire  sum.  Then  the 
cases  of  Mayfield  v.  Wadsley  ^  and  Meclielcn  v.  WaHace  -  shew  that  a 
contract  may  be  within  the  statute,  thouoli  the  statute  does  not  apply 
to  the  whole  of  it.  In  the  Latter  case  the  point  arose  under  the  4th 
section,  but  that  makes  no  difference  as  regards  the  present  question. 
Then  arc  there  any  circumstances  wliich  take  the  case  out  of  the 
statute  ?  It  will  perhajjs  be  urged,  on  behalf  of  the  plaintiff,  that  the 
defendant  l)y  allowing  the  mare  and  foal  to  remain  with  the  plaintiff 
constituted  the  plaintiff  the  defendant's  bailee,  and  that  so  there  was 
a  delivery  and  acceptance.  But  still  the  plaintiff  had  a  lien  for  the 
price,  and  Avithout  payment  the  defendant  could  not  have  obtained 
possession,  and  to  satisfy  the  statute  there  must  be  both  acceptance 
and  delivery  of  the  goods  sold,  such  as  will  deprive  the  vendor  of  his 
lien  for  the  price.  Tempest  v.  Fitzgerald,'^  Holmes  v.  Hoskins,*  Bill  v. 
Bament.^  The  present  case  cannot  be  distinguished  from  Holmes  v. 
Hoskins. 

[WiLLiA]\rs,  J.  In  that  case  the  agistment  of  the  cattle  was  no  part 
of  the  original  bargain.] 

That  makes  the  case  a  stronger  authority  in  favor  of  the  present 
argument  that  the  bailment  does  not  amount  to  a  dehvery  and  accept- 
ance to  satisfy  the  statute.  As  regards  the  agistment  of  the  defend- 
ant's mare  and  foal,  it  cannot  be  said  that  it  was  any  part  of  the  thing 
sold.  It  is  an  easement  conferring  a  settlement  (Rex  v.  Tollpuddle  *'), 
and  if  included  in  the  sale  ought  to  have  been  in  writing.  Nor  can  it 
be  said  that  any  grass  was  sold ;  and  if  any  was  sold,  grass  growing  is 
not  goods  within  the  meaning  of  the  statute ;  none  was  sold,  and  none 
was  accepted  and  received. 

O'MaUetj  and  Couch,  in  support  of  the  rule.  The  defendant's  argu- 
ment amounts  to  this,  that  if  there  be  a  contract  for  ever  so  great  an 
amount  not  within  the  statute,  yet  if  an  article  of  the  value  of  £10  be 
included  in  it  the  whole  contract  is  brought  within  the  statute.  Sup- 
pose A.  contracts  by  parol  to  train  twenty  horses  for  B.,  and  it  is  part 
of  the  bargain  that  B.  shall  purchase  a  horse  of  A.  for  more  than  £10, 
can  it  be  contended  that  if  A.  trains  the  twenty  horses  he  cannot 
recover  because  of  the  17th  section  ? 

[Jervis,  C.  J.  It  does  not  follow  that  he  may  not  recover  for  the 
training  if  it  has  been  done.  Your  argument  is,  that  the  bargain  as  to 
the  training  takes  the  sale  of  the  horse  out  of  the  statute.] 

If  the  words  of  the  first  portion  of  the  17th  section  arc  to  be  enlarged 
so  as  to  include  a  contract  for  the  sale  of  goods  and  for  something  else 


&^ 


1  3  B.  &  C.  357  ;  s.  c.  3  Law  J.  Rep.  K.  B.  31. 

2  7  Ad.  &  E.  49 ;  s.  c.  6  Law  J.  Rep.  (n.  s.)  K.  B.  217. 

3  3  B.  &,  Aid.  680.  *  9  Exch.  Rep.  753. 

5  9  Mee.  &  W.  36;  s.  c  11  Law  J.  Rep.  (n.  s.)  Exch.  81. 

6  4  Term  Rep.  071. 


92  HARMAN   V.   REEVE.  [CHAP.   I. 

not  within  the  statute,  the  words  of  the  latter  part  of  the  section  must 
be  enlarged  also,  so  as  to  make  the  acceptance  and  receipt  of  any  part 
of  the  subject-matter  of  the  contract  an  acceptance  and  receipt  within 
the  meaning  of  the  section.  Then  there  has  been  such  an  acceptance 
and  receipt  in  the  pi-esent  case,  for  the  defendant  has  had  the  six  weeks' 
keep  of  his  mare  and  foal  which  he  contracted  for ;  he  has  had  the 
benefit  of  a  substantial  part  of  the  entire  contract. 

[Jervis,  C.  J.  Have  you  considered  whether  the  plaintiff  could  not 
have  recovered  for  the  six  weeks'  keep  upon  the  principle  suggested  by 
Bayley,  B.,  in  Wood  v.  Benson  ?  ^  He  says,  "  It  by  no  means  follows 
that  because  you  cannot  sustain  a  contract  in  the  whole,  you  cannot 
sustain  it  in  part,  provided  your  declaration  be  so  framed  as  to  meet 
the  proof  of  that  part  of  the  contract  which  is  good."  The  plaintiff 
here  has  elected  to  sue  on  the  entire  contract.] 

[Williams,  J.  The  same  principle  is  referred  to  in  Lord  Falmouth 
V.  Thomas^  and  Thomas  v.  Williams.^] 

The  contract  is  indivisible,  and  the  plaintiff  cannot  be  put  to  sue  for 
a  portion  only.  He  may  well  say,  I  would  not  have  contracted  to 
agist  the  defendant's  mare  and  foal  at  all,  or  at  the  price,  unless  the 
defendant  purchased  my  mare  and  foal.  All  that  is  required  by  the 
statute  is  some  evidence  to  shew  that  the  contract  was  made,  as  was 
said  by  Alderson,  B.,  in  Scott  v.  The  Eastern  Counties  Railway  Com- 
pany :  ^  "  If  I  make  a  contract  for  goods  already  made  and  goods  to 
be  made,  and  I  accept  the  goods  made,  it  shews  that  I  made  the  con- 
tract ;  which  is  what  the  act  means."  Elliott  v.  Thomas  ^  establishes 
the  same  construction.  There  was  such  evidence  in  this  case.  But 
the  17th  section  has  no  application  to  a  mixed  contract  like  the  pres- 
ent. The  cases  cited  on  the  other  side  were  decided  on  the  4th  sec- 
tion, and  do  not  apply.  That  section  contains  an  absolute  prohibition 
■with  respect  to  the  subject-matters  referred  to  in  it,  viz.,  the  sale  of 
lands,  without  reference  to  the  value  or  any  thing  else ;  and  it  may  weU 
be  that  a  contract  for  the  sale  of  lands  of  the  value  of  £1  and  of  goods 
of  the  value  of  £100  should  be  absolutely  void,  unless  in  writing,  by 
reason  of  that  absolute  prohibition.  But  the  17th  section  allows  other 
evidence  of  the  contract  besides  writing.  The  case  of  Mayfield  v. 
Wadsley  does  not  decide  that  a  mixed  contract  is  within  the  17th  sec- 
tion, and  in  Mechelen  v.  Wallace  the  hiring  of  the  house  and  furniture 
was  one  contract  and  could  not  be  divided,  for  unless  the  party  hiring 
got  the  house  he  could  not  enjoy  the  furaiture,  and  the  4th  section 
applied.    Further,  on  the  face  of  this  contract  it  cannot  be  said  that 

1  2  Cr.  &  J.  95. 

2  1  Cr.  &  M.  89 ;  s.  c.  2  Law  J.  Rep.  (n.  s.)  Exch.  57. 

3  10  B.  &  C.  664 ;  s.  c.  8  Law  J.  Rep.  K.  B.  314. 

*  12  Mee.  &  "W.  33 ;  s.  c.  13  Law  J.  Rep.  (n.  s.)  Exch.  U. 
5  3  Ibid.  170;  s.  c.  7  Law  J.  Rep.  (n.  s.)  Excb.  129. 


SECT.    III.]  BARMAN    V.    REEVE.  93 

the  mare  and  foal  were  sold  at  the  price  of  £10  so  as  to  bring  the  case 
Avithin  the  words  of  the  17th  section. 

[.Jervis,  J.  That  might  have  been  shewn  by  parol.  This  was  a 
sale  of  an  article  to  be  delivered  at  a  future  day,  and  the  7th  section  of 
Lord  Tenterden's  Act,  9  Geo.  4,  c.  1-4,  substitutes  the  M'ord  "value" 
for  "  price."] 

[Hyles,  Serjt.,  referred  to  Lord  Abinger's  judgment  in  Scott  v.  The 
Eastern  Counties  Railway  Company,  that  the  two  statutes  must  be 
construed  as  incorporated  together.] 

As  to  the  argument  that  the  contract  for  agistment  ought  to  have 
been  in  writing  as  being  for  an  interest  in  land,  Jones  v.  Flint  ^  decides 
the  contrary.  The  cases  of  Tempest  v.  Fitzgerald  and  Holmes  v.  Hos- 
kins  are  distinguishable,  for  in  the  present  case  the  agistment  was  a 
material  part  of  the  original  contract,  whereas  in  those  it  was  not. 

Jervis,  C.  J.     I  am  of  opinion  that  this  rule  should  be  discharged. 

It  is  now  Avell  settled  that  the  7th  section  of  Lord  Tenterden's  Act,  9 

Geo.  4,  c.  14,  and  the  17th  section  of  the  Statute  of  Frauds  are  to  be 

read  together,  and  the  enactments  of  the  latter  statute  are  extended 

to  all  contracts  for  the  sale  of  goods  of  the  value  of  £10  and  upwards. 

The  effect  of  that  is  to  substitute  the  word  "  value "  for  the  word 

"jirice  "  in  the  17th  section  of  the  Statute  of  Frauds,  so  as  to  adopt  one 

uniform  rule  in  all  cases ;  and  the  17th  section  must  now  be  read,  "  no 

contract  for  the  sale  of  any  goods,  &c.,  of  the  value  of  £10  or  upwards, 

shall  be  allowed  to  be  good,  except  the  buyei'snall  accept  part  of  the 

goods  so  sold,  and  actually  receive  the   same,   or  give  something  in 

earnest  to  bind  the  bargain  or  in  part  payment,  or  that  some  note  or 

memorandum  in  writing  of  the  said  bargain  be  made,"  &c.      Xow  the 

present  is  the  case  of  a  contract  for  the  sale  of  goods  above  the  value 

of  £10,  for  there  is  no  doubt  that  the  plaintiff's  mare  and  foal  were 

worth  more  than  £10 ;  and  although  that  may  not  very  distinctly  appear 

upon  the  fiice  of  the  contract,  still  it  might  and  would  have  been  shcAvn 

by  parol  evidence.      Then  it  is  a  contract  for  the  sale  of  the  plaintiff's 

mare  and  foal  above  the  value  of  £10  ;  and  it  is  not  the  less  so  because 

something  else  is  included  in  it ;  and  there  is  no  note  or  memorandum 

in  TO'iting,     Prima  facie,  therefore,  the  case  is  within  the  statute,  the 

principal  subject-matter  of  the  contract  being  the  sale  of  the  plaintifl^'s 

mare  and  foal  to  the  defendant,  the  rest  being  merely  ancillary  to  it ; 

but  even  if  this  be  not  so,  it  is  still  a  contract  for  the  sale  of  goods 

above  the  value  of  £10,  and  as  such  I  think  cannot  be  enforced.     But 

then  it  is  argued  that  there  has  been  an  acceptance,  which  takes  the 

case  out  of  the  statute.     I  think  not,  for  there  has  been  no  acceptance 

of  the  "  goods  so  sold,"  —  tliat  is,  of  the  plaintiff's  mare  and  foal,  —  but 

the  defendant   has  had  the   enjoyment   of  something  else  engrafled 

upon  the  contract,  and  that  does  not  satisfy  the  statute.     And  there  is 

1  10  Ad.  &  E.  753 ;  6.  c.  9  Law  J.  "Rep.  (n.  s.)  Q.  B.  252. 


94  HARMAN    V.    REEVE.  [CHAP.   I. 

no  hardship  in  our  so  deciding,  for  the  plaintiff  is  still  at  liberty  to  re- 
cover for  the  price  of  the  agistment  of  the  defendant's  mare  and  foal. 
The  answer  given  to  this  suggestion  by  Mr.  Couch  is,  that  the  plain- 
tiff would  not  have  contracted  for  the  agistment  of  the  defendant's 
mare  and  foal  unless  the  whole  contract  had  been  entered  into,  and 
that  it  is  unfair  that  he  should  recover  for  j^art  only.  But  that  is  a 
sort  of  thing  that  occurs  daily.  I  agree  to  let  a  house  to  a  man  for  a 
term  of  years,  and  he  enters  under  the  jiromise  of  a  lease  and  occu- 
pies for  a  year,  when  I  sue  him  for  use  and  occupation.  It  would 
be  no  answer  for  him  to  say,  "  I  should  not  have  entered  at  all,  unless 
you  had  agreed  to  grant  me  a  lease."  If  entitled  to  a  lease,  it  is  his 
own  fault  if  he  does  not  get  it ;  and  it  is  no  reason  because  by  his 
own  fault  he  has  failed  to  get  all  he  was  entitled  to,  that  he  should 
not  pay  for  what  he  has  had.  In  this  case  the  plaintiff  may  recover 
for  the  agistment  of  the  defendant's  mare  and  foal  when  he  properly 
sues  for  it ;  but  he  cannot  recover  the  price  of  his  own  mare  and  foal. 
"  It  by  no  means  follows,"  as  said  by  Bayley,  B.,  "  because  you  cannot 
sustain  a  contract  in  the  whole,  you  cannot  sustain  it  in  part,  provided 
your  declaration  be  so  framed  as  to  meet  the  jDroof  of  that  part  of  the 
contract  which  is  good." 

Williams,  J.  I  am  of  the  same  opinion.  It  is  admitted  that  this 
is  a  contract  for  the  sale  of  goods  of  the  value  of  £10  and  upwards. 
The  contract  price  which  the  defendant  was  to  pay,  £30,  included 
other  matters  not  within  the  statute,  but  the  price  was  indivisible, 
and  the  contract  w^as  properly  declared  on  as  an  entire  contract ;  and 
I  do  not  think  it  comes  within  the  class  of  cases  alluded  to  by  Bayley, 
B.,  for  it  is  not  a  contract  capable  of  being  divided.  That  being  so, 
the  cases  decided  under  the  4th  section  of  the  Statute  of  Frauds  are 
analogous  to  the  present,  and  this  is  the  case  of  a  contract  for  the 
sale  of  goods  of  the  value  of  £10  which  cannot  be  enforced  because  it 
is  not  brought  within  any  of  the  excej^tions  mentioned  in  the  17th 
section.  It  is  clear  that  the  buyer  did  not  give  any  thing  in  earnest  to 
bind  the  bargain  or  in  part  payment,  and  that  there  w\as  no  memoran- 
dum in  writing ;  and  the  only  question  is,  whether  there  has  been  an 
acceptance  and  receipt  of  part  of  the  goods  so  sold.  I  think  that  it 
cannot  by  any  latitude  of  construction  be  so  said,  and  that  the  case  was 
not  brought  within  any  of  the  exceptions.  I  agree  with  the  Lord 
Chief  Justice,  that  although  the  plaintiff  is  not  in  a  condition  to  en- 
force this  contract,  he  may  nevertheless  enforce  the  contract  which 
the  law  will  imply  from  the  defendant's  enjoyment  of  that  which  he 
has  enjoyed. 

Crowdee,  J.  I  am  of  the  same  opinion.  This  is  an  entire  con- 
tract for  £30,  and  it  was  argued  that,  because  there  was  no  fixed 
price  for  the  mare  and  foal,  the  case  did  not  fall  within  the  statute. 
But  looking  at  the  7th  section  of  Lord  Tenterden's  Act  with  the 


SECT.    IV.]  SEARLE  V.    KEEVES.  95 

17tli  section  of  the  Stati;te  of  Frauds,  the  question  is,  whether  this  is 
not  a  contract  for  the  sale  of  goods  of  the  vahic  of  £10  or  upwards. 
It  could  not  be  disputed  upon  the  argument  that  the  marc  and  foal 
were  the  principal  suhject-matter  of  the  contract,  and  that  the  agist- 
ment was  but  an  inferior  part  of  it ;  and  although  that  is  included 
in  it,  the  contract  for  the  sale  of  the  mare  and  foal  still  remains, 
and  clearly  comes  within  the  meaning  of  the  17th  section.  The 
contract  is  entire,  and  cannot  be  sued  on  unless  it  is  in  writing,  or 
brought  within  some  one  of  the  other  exceptions  in  that  section.  Be- 
ing within  the  statute,  the  only  question  is,  whether  there  has  been  any 
acceptance  of  the  goods  so  sold.  The  goods  so  sold  in  this  case  were 
the  mare  and  foal,  not  the  agistment ;  there  has  been  no  acceptance  of 
them,  and  it  is  impossible  to  say  there  has  been  any  acceptance  of  any 
part  of  the  goods  so  sold  within  the  meaning  of  the  statute,  and  I 
think  therefg^i-e  that  this  rule  should  be  discharged. 

Hule  discharged} 


.^^-       ^y.        SECTlto 

^Mxcept  the  Buyer  shall  accept  Part  of  the  Goods  so  sold,  and  actually 

receive  the  same.''^  ^ 

SEARLE  ET  Alt.  v.   ICEEVES.  .' 

At  Guildhall,  coram  Eyre,  C.  J.,  December,  1797. 

[Reported  in  2  Espinasse,  598.] 

This  was  an  action  on  the  case  for  the  non-performance  of  a  contract. 

Plea,  710)1  assumj^sit. 

The  declaration  stated  that,  in  consideration  that  the  plaintiff  had 
bought  of  the  defendant  twenty  baiTels  of  rice,  at  the  price  of  17s.  per 
hundred  weight,  the  defendant  undertook  to  deliver  that  quantity,  and 
assigned  the  breach  in  the  non-delivery. 

^  Willes,  J.,  had  gone  to  chambers. 

2  "If  Mc  seek  for  the  meaning  of  the  enactment,  judging  merely  from  its  words, 
and  without  reference  to  decisions,  it  seems  that  this  provision  is  not  comphed  with 
unless  the  two  things  concur :  the  buyer  must  accept,  and  he  must  actually  receive 
part  of  the  goods  ;  and  the  contract  will  not  be  good  unless  he  does  both.  And  this 
is  to  be  borne  in  mind,  for  as  there  may  be  an  actual  receipt  without  any  acceptance, 
so  may  there  be  an  acceptance  without  any  receipt.  In  the  absence  of  authority,  and 
judging  merely  from  the  ordinary  meaning  of  language,  one  would  sa^'  that  an  accept- 
ance of  part  of  the  goods  is  an  assent  by  the  buyer,  meant  to  be  final,  that  this  part  of 


96  SEARLE  V.    KEEVES."  [CHAP.    I. 

The  evidence  for  the  plaintiffs  in  support  of  this  declaration  was, 
that  on  the  26th  of  September  one  of  the  plaintiffs  having  been  at  the 

the  goods  is  to  be  taken  by  him  as  his  property  under  the  contract,  and  as  so  far  satis- 
fying tlie  contract.  So  long  as  the  buyer  can,  without  self-contradiction,  declare  that 
the  goods  are  not  to  be  taken  in  fulfilment  of  the  contract,  he  has  not  accepted  them. 
And  it  is  immaterial  whether  his  refusal  to  take  the  goods  be  reasonable  or  not.  If  he 
refuses  the  goods,  assigning  grounds  false  or  frivolous,  or  assigning  no  reasons  at  all, 
it  is  still  clear  that  he  does  not  accept  the  goods,  and  the  question  is  not  whether  he 
ought  to  accept,  but  whether  he  has  accepted  them.  The  question  of  acceptance  or  not 
is  a  question  as  to  what  was  the  intention  of  the  buyer  as  signified  by  his  outward 
acts. 

"  The  receipt  of  part  of  the  goods  is  the  taking  possession  of  them.  When  the 
seller  gives  to  the  buyer  the  actual  control  of  the  goods,  and  the  buyer  accepts  such 
control,  he  has  actually  received  them.  Such  a  receipt  is  often  evidence  of  an  accept- 
ance, but  it  is  not  the  same  thing  ;  indeed  the  receipt  by  the  buyer  may  be,  and  oft'eri 
is,  for  the  express  purpose  of  seeing  whether  he  will  accept  or  not.  If  goods  of  a 
particular  description  are  ordered  to  be  sent  by  a  carrier,  the  buyer  must  in  every  case 
receive  the  package  to  see  whether  it  answers  his  order  or  not ;  it  may  even  be  reason- 
able to  try  part  of  the  goods  by  using  them ;  but  though  this  is  a  very  actual  receipt, 
it  is  no  acceptance  so  long  as  the  buyer  can  consistently  object  to  the  goods  as  not 
answering  his  order.  It  follows  from  this  that  a  receipt  of  goods  by  a  carrier  or  on 
board  ship,  though  a  sufficient  delivery  to  the  purchaser,  is  not  an  acceptance  by  him 
so  as  to  bind  the  contract ;  for  the  carrier,  if  he  be  an  agent  to  receive,  is  clearly  not 
one  to  accept  the  goods. 

"  On  the  whole  the  cases  are  pretty  consistent  with  these  suggestions  and  with  each 
other,  as  to  what  forms  an  acceptance  within  the  statute,  though  not  as  to  the  strength 
of  the  proof  required  to  establish  it.  On  the  question  of  what  constitutes  an  actual 
receipt  there  is  some  diflSculty  in  reconciling  the  cases,  but  we  shall  return  to  this  part 
of  the  subject  after  citing  a  few  cases  to  shew  what  is  an  acceptance."  Blackburn  on 
Sale,  pp.  22-24. 

"  The  cases,  as  has  been  already  observed,  are  not  quite  so  easily  reconciled  upon 
the  question  of  what  constitutes  an  actual  receipt.  There  can  be  no  question  that  an 
actual  removal  of  the  goods  by  the  purchaser  is  an  actual  receipt  by  him ;  and  when 
the  goods  are  in  tiie  hands  of  a  third  party,  it  is  pretty  clear  that  as  soon  as  the  ven- 
dor, the  purchaser,  and  the  bailee  agree  together  that  the  bailee  shall  cease  to  hold  the 
goods  for  the  vendor  and  shall  hold  them  for  the  purchaser,  that  is  an  actual  receipt 
by  the  purchaser,  though  the  goods  themselves  remain  untouched.  They  were  in  the 
possession  of  an  agent  for  the  vendor  and  so  in  contemplation  of  law  in  that  of  the 
vendor  himself,  and  they  become  in  the  possession  of  an  agent  for  the  purchaser  and 
so  in  that  of  the  purchaser  himself;  and  it  can  make  no  difference  whether  this  is  by 
a  change  in  the  person  of  the  holder  of  the  goods  or  merely  in  his  character.  So  far 
the  question  of  whether  there  has  been  a  receipt  of  part  of  the  goods  by  the  purchaser 
or  not  is  identically  the  same  as  whether  the  vendor  has  so  parted  with  possession  as 
to  put  an  end  to  his  lien  as  to  that  part  of  the  goods.  .  .  .  But  when  the  goods  are  in 
the  custody  of  the  vendor  himself  or  his  immediate  servants,  and  not  of  a  middleman, 
there  is  a  difficulty.  It  will  be  seen  in  its  proper  place  that  when  the  purchaser  or 
his  assigns  and  the  vendor  come  to  an  agreement  that  the  vendor  shall  cease  to  hold 
the  goods  as  vendor,  and  shall  hold  them  as  an  agent  of  the  owner  of  the  goods,  his 
rights  as  vendor  are  gone ;  and  though  the  cases  now  show  that  such  an  agreement 
between  the  vendor  and  the  original  purchaser  himself  must  be  proved  by  stronger 
evidence  than  one  between  him  and  a  sub-vendee,  it  does  not  seem  disputed  that  such 
an  agreement  may  be  made.  At  one  time  the  weight  of  authority  was  that  such  an 
agreement  was  to  be  readily  presumed ;  now  the  weight  of  authority  is  that  such  an 
agreement  must  be  very  distinctly  proved,  and  that  unless  the  vendor's  Uen  on  some 
part  of  the  goods  be  gone  there  cannot  be  an  actual  receipt."    Id.,  pp.  28-29, 


SECT.    IV.]  CHAPLIN    V.    ROGERS.  97 

house  of  the  defendant,  the  defendant  told  him  that  he  had  a  quantity 
of  rice  to  sell,  but  there  was  no  evidence  to  prove  any  contract  made 
at  that  time.  The  plaintiffs  produced  an  order  on  Bennet  &  Co.  to 
deliver  to  them  20  barrels  of  rice,  Avhich  was  signed  by  Keeves ;  and 
witnesses  proved  that  Keeves  had  told  him  [tlicm]  that  he  had  sold 
20  barrels  of  rice  to  Mr.  Searle,  at  17s.  per  hundred;  and  that  he 
was  a  fool  for  selling  it  so  soon,  as  the  price  of  rice  had  advanced. 

The  jilaintiffs  then  proved  the  delivery  of  the  order  for  the  rice  to 
the  warehouseman  of  Bennet  tfc  Co. ;  and  that,  the  rice  not  being  then 
taken  away,  Keeves  on  the  2d  of  October  countermanded  the  delivery 
to  Searle  the  plaintiff,  in  consequence  of  which  Bennet  &  Co.  refused 
to  deliver  the  rice  to  Searle,  who  sent  for  it  on  the  10th  of  October 
following. 

The  counsel  for  the  defendant  contended  that  as  to  this  count  the 
plaintiffs  ought  to  be  nonsuited;  they  said  that  the  Statute  of  Frauds 
in  all  cases  of  sales  of  goods  required  a  note  in  T\Titing  specifying  the 
terms  of  the  contract,  and  being  meant  to  guard  against  fraud  in  con- 
tracts made  it  necessary  to  specify  particularly  what  the  temis  of  the 
sale  were :  in  this  case  there  was  no  specification  of  the  terms ;  the  only 
evidence  was  the  order  for  the  delivery  by  the  defendant,  which  did 
not  si)ecify  any  thing  as  to  the  price,  so  that  it  was  not  a  sufficient  note 
in  writing  under  the  statute. 

Etke,  C.  J.  The  Statute  of  Frauds  does  not  attach  where  there 
has  been  earnest  or  a  delivery  of  a  part  of  the  things  sold ;  I  think 
there  has  been  in  this  case  a  delivery  of  the  whole.  Keeves  the 
defendant  gave  an  order  for  the  delivery  upon  Bennet  &  Co.,  in  whose 
possession  the  rice  then  was ;  this  satisfies  the  statute,  and  the  plaintifis 
are  entitled  to  recover. 

The  plaintiffs  accordingly  had  a  verdict. 


i^  CHAPLIN  V.  ROGERS.  '^      ^X^  '  ^ 

■5    '  In  the  King's  Bench,  January  29,  1800. 

/  '  {Reported  in  1  East,  192.] 

In  an  action  for  goods  sold  and  delivered  the  case  proved  was  that, 
the  parties  being  together  in  the  plaintiff's  farm-yard,  the  defendant, 
after  some  objections  and  doubts  upon  the  quality  of  a  stack  of  hay 
(particularly  the  inside  part)  then  standing  in  the  yard,  agreed  to  take 
it  at  26'.  Qd.  per  hundred  weight.  Soon  after  he  sent  a  fiarmer  to  look 
at  it,  whose  opinion  was  unfavorable.     But  about  two  mouths  after- 

VOL.   I.  7 


98  CHAPLIN    V.    EOGERS.  [CHAP.    I. 

wards  another  farmer  of  the  name  of  Loft  agreed  with  the  defendant 
for  the  piirchase  of  some  of  this  hay  still  standing  nntonched  in  the 
plaintiff's  yard,  and  the  defendant  told  Loft  to  go  there  and  ask  what 
condition  it  was  in,  saying  he  had  only  agreed  for  it  if  it  were  good. 
The  plaintiff  having  infonned  Loft  it  was  in  a  good  state,  he  agreed  to 
give  the  defendant  3s.  9J.  per  hundred  weight  for  it,  the  defendant 
having  told  him  that  he  had  agreed  to  give  the  plaintiff  3s.  6d.  for  it. 
Loft  thereupon  brought  away  thirty-six  hundred  weight ;  but  this  latter 
fact  was  without  the  knowledge  and  against  the  direction  of  the 
defendant.  There  was  a  contrariety  of  evidence  as  to  the  quality  of 
the  hay  when  the  stack  was  afterAvards  cut.  At  the  trial  before 
Hotham,  B.,  on  the  last  Norfolk  circuit,  Sellon,  Serjt.,  for  the  defendant, 
objected  that  the  contract  of  sale  was  fraudulent  and  void  by  the 
Statute  of  Frauds,  being  for  the  sale  of  a  commodity  no  part  of  which 
was  delivered,  and  of  which  there  was  no  acceptance  by  the  defendant. 
But  the  learned  judge  left  it  to  the  jury  to  decide  whether  the  sale 
had  been  fraudulent,  and  whether  under  the  circumstances  there  had 
been  an  acceptance  by  the  defendant ;  and  they  found  for  the  plaintiff 
on  both  points,  and  gave  him  £50  damages,  being  the  value  of  the  hay 
at  the  price  agreed  for.  1\\  the  last  term  a  rule  was  obtained  calling 
on  the  plaintiff  to  shew  cause  why  the  verdict  should  not  be  set  aside 
and  a  new  trial  had,  on  the  grounds  that  the  learned  judge  had  left 
that  as  a  question  of  fact  to  the  jury  which  he  himself  ought  to  have 
decided  as  an  objection  in  point  of  law  arising  on  the  Statute  of 
Frauds ;  and  because  the  evidence  did  not  warrant  the  verdict. 

Wilson  now  shewed  cause.  The  objection  may  either  be  regarded 
as  arising  upon  the  Statute  of  Frauds,^  or  upon  the  form  of  the  count 
for  goods  sold  and  delivered,  which  requires  proof  of  a  delivery  as  well 
as  a  sale.  Now  there  was  sufficient  evidence  of  a  dehvery  to  and 
acceptance  by  the  defendant,  and  the  jury  having  found  the  fact  with 
the  plaintiff  the  case  is  taken  out  of  the  Statute  of  Frauds.  The  bulk 
of  the  commodity  purchased  precluded  any  actual  delivery  of  it ;  but 
that  which  took  place  was  tantamount  to  it.  Both  parties  were  upon 
the  spot  at  the  time,  and  considei'ed  the  bargain  as  concluded  and  the 
stack  in  the  possession  of  the  defendant.  The  defendant  afterwards 
acted  upon  it  as  such,  and  sold  part  of  it  to  another  person,  which  is 
evidence  in  itself  of  his  having  taken  possession  of  it.  Besides,  that 
person  actually  removed  part  of  it  away ;  and  though  this  is  stated  to 
have  been  against  the  defendant's  direction,  yet  that  cannot  avail  as 
between  these  parties,  with  resj^ect  to  whom  Loft  must  be  considered 
as  the  defendant's  agent  acting  within  the  scope  of  his  authority,  the 
excess  being  without  the  knowledge  of  the  plaintiff.  The  question  of 
fraud  left  to  the  jury  was  as  to  the  existence  of  any  fraud  in  fact. 

Garrow^  contra.    The  form  of  the  declaration  required  proof  of  a 

1  29  Car.  2,  c.  3,  §  17. 


SECT.    IV.] 


KENT    V.    HUSKINSON. 


99 


delivery  in  fact  of  the  goods,  otherwise  the  count  for  goods  bargained 
and  sold  would  be  useless.  Though  the  jury  were  the  proper  judges 
how  far  the  plaintiff  had  been  guilty  of  any  fraud  in  fact,  yet  the  judge 
ought  to  have  decided  upon  the  question  of  law  submitted  to  him, 
whether  upon  the  case  proved  it  did  not  fall  witliin  the  Statute  of 
Frauds. 

Lord  Ivenyon",  C.  J.  It  is  of  great  consequence  to  preserve  unim- 
paired the  several  provisions  of  the  Statute  of  Frauds,  which  is  one 
of  the  Aviscst  laws  in  our  statute  book.  My  opinion  Avill  not  infrino-e 
upon  it ;  for  here  the  report  states  that  the  question  was  specifically 
left  to  the  jury  whether  or  not  there  were  an  acceptance  of  the  hay  by 
the  defendant,  and  they  have  found  that  there  was,  which  puts  an  end 
to  any  question  of  law.  I  do  not  mean  to  disturb  the  settled  construc- 
tion of  the  statute,  that  in  order  to  take  a  contract  for  the  sale  of  goods 
of  this  value  out  of  it  there  must  be  either  a  part  deliverv  of  the  thin» 
or  a  i>art  papnent  of  the  consideration,  or  the  agreement  must  be 
reduced  to  Avriting  in  the  manner  therein  specified.  But  I  am  not  sat- 
isfied in  this  case  that  the  jury  have  not  done  rightly  in  findino-  the 
fact  of  a  delivery.  Where  goods  are  ponderous,  and  incapable  as  here 
of  being  handed  from  one  to  another,  there  need  not  be  an  actual 
delivery ;  but  it  may  be  done  by  that  Avhich  is  tantamount,  such  as  the 
delivery  of  the  key  of  a  warehouse  in  Avhich  the  goods  are  lodged,  or 
by^livery  of  other  indicia  of  property.  Now  here  the  defendant 
dealt  with  this  commodity  afterwards  as  if  it  were  in  his  actual  posses- 
sion ;  for  he  sold  part  of  it  to  another  person.  Therefore,  as  upon  the 
whole  justice  has  been  done,  the  verdict  ought  to  stand. 

The  other  judges  agreed  that  there  was  sufficient  evidence  of  a 
deUvery  to  and  acceptance  by  the  defendant  to  leave  to  the  jury 

»  /*     i/v^  Hule  discharged.  ^ 


y 


%% 


Y^l'^KENT 


SKENSON. 


In  the  Common  Pleas,  November  19,  1802. 

[Reported  in  3  Bosanquet  <j-  Puller,  233.] 

Tins  was  an  action  for  goods  sold  and  delivered,  and  was  tried  before 
Lord  Alvanley,  C.  J.,  at  the  Westminster  sittings  in  this  term,  Avhen 
the  following  circumstances  appeared  in  evidence  :  Tlie  subject  of  the 
action  was  a  bale  of  sponge  sent  by  the  plaintiff,  a  wholesale  dealer  in 
that  article  residing  in  London,  to  the  defendant,  a  retail  dealer  resid- 
ing in  Staffordshire.  Some  short  time  before  the  sponge  was  sent  by 
1  See  Vincent  v.  Germond,  11  John.  283.  —  Ed. 


"5 


100  KENT   V.    HUSKINSON.  [CHAP.   I. 

the  plaintiff,  he  had  been  at  the  place  where  the  defendant  resided,  and 
had  received  from  him  a  verbal  order  iinder  which  he  had  acted  in 
sending  the  sponge ;  and  the  price  charged  was  lis.  per  pound,  amount- 
ing altogether  to  £75.  Soon  after  the  sponge  was  sent,  the  defendant 
wrote  the  following  letter  to  the  plaintiff:  "After  receiving  a  letter 
from  your  house  in  town,  stating  the  bale  of  sponge  was  sent  by  your 
direction,  I  called  in  a  friend  or  two  who  are  competent  judges  of  the 
article,  and  asked  them  to  say,  according  to  the  present  price  of  sponge, 
what  it  was  worth ;  the  answer  was,  not  more  than  6s.  per  pound ; 
have  therefore  returned  it  to  you  by  the  same  conveyance  it  was  for- 
warded by  to  this  place.  In  future  will  select  what  sponge  I  may  want 
personally,  otherwise  will  appoint  some  confidential  friend  for  that  pur- 
"pose."  The  plaintiff's  son  being  at  the  defendant's  house  soon  after 
the  sponge  was  returned,  was  told  by  him  that  he  had  resolved  not  to 
keep  the  article,  because  it  was  not  so  good  as  he  had  expected.  It 
was  objected  for  the  defendant  that  inasmuch  as  this  was  a  contract 
for  the  sale  of  goods  of  more  than  £10  value,  the  case  fell  within  the 
17th  section  of  the  Statute  of  Frauds  for  want  of  a  note  or  memoran- 
dum in  writing,  and  consequently  the  plaintiff  could  not  recover.  His 
Lordship,  being  of  this  opinion,  nonsuited  the  plaintiff. 

Shepherd^  Serjt.,  now  moved  to  set  aside  the  nonsuit,  and  relied  on 
the  words  of  the  17th  section  of  the  Statute  of  Frauds,  which  declares 
contracts  for  the  sale  of  goods  void  "  except  the  buyer  shall  accept  part 
of  the  goods  so  sold  or  [and]  actually  receive  the  same ; "  within  which 
exception  he  contended  the  present  case  fell,  for  that  the  object  of  the 
statute  was  either  that  there  should  be  a  contract  in  writing,  or  that 
some  act  should  be  done  by  the  party  as  evidence  of  his  having 
received  the  goods ;  the  latter  of  which  objects  he  insisted  was  satisfied 
by  what  had  taken  jjlace  in  the  present  case,  for  that  though  the 
defendant  had  not  accepted  the  bale  of  sponge  without  any  qualifica- 
tion or  right  reserved  to  himself  of  disputing  the  quality  of  the  article 
sent,  yet,  within  the  meaning  of  the  statute,  and  with  this  reserved 
right  of  disputing  the  quality,  he  had  accepted,  as  was  evidenced  by  his 
opening  the  bale  and  subjecting  it  to  the  examination  of  his  friends. 
He  urged  that  the  defendant  by  his  conduct  had  affirmed  the  order 
previously  given,  and  only  denied  that  the  order  was  well  complied 
with,  which  was  a  matter  for  the  consideration  of  the  jury,  and 
observed  that  it  was  not  within  the  letter  or  spirit  of  the  Statute  of 
Frauds  to  hold  that  there  must  be  a  note  or  memorandum  in  writing 
of  every  sale  of  goods  where  the  vendee  does  not  accept  them  abso- 
lutely and  in  such  a  way  as  to  preclude  himself  from  returning  them 
in  any  case. 

Lord  Alvanley,  C.  J.  At  the  trial  I  thought,  and  still  continue 
of  opinion,  that  the  evidence  does  not  take  this  case  out  of  the 
Statute  of  Frauds.     How  is  any  judgment   to  be  formed  as  to  the 


SECT.    IV.]  ANDERSON    V.    SCOT.  101 

nature  of  the  contract  between  these  jiarties?  Possibly  the  order  was 
for  the  best,  possibly  for  the  second-best  sponge,  or  si)onge  of  some 
peculiar  quality ;  all  which  circumstances  are  left  in  a  state  of  uncer- 
tainty. It  was  this  very  uncertainty,  and  the  frauds  to  which  it 
might  lead,  that  the  statute  had  in  contemplation  and  meant  to  guard 
against.  The  only  aflh-inatiou  of  any  contract  to  be  collected  from 
the  evidence  is  an  atlirmation  of  some  sort  of  order  for  some  sort  of 
sponge,  and  it  aj^pears  that  the  moment  the  article  reached  the  defend- 
ant and  was  examined  he  sent  it  back  to  the  plaintiff,  saying  it  was 
not  that  sort  of  sponge  which  he  wanted  and  had  ordered.  The  defend- 
ant's letter  cannot,  asjt^  appears  to  me,  be  construed  into  any  thing 
like  an  acceptance,  so  as  to  bring  this  case  within  the  exce})tion  wliich 
has  been  relied  on. 

■  I  .„.,.i..     -  --  ■        r       '  '•    •  .  ...  . 

Heath,  J.  I  think  my  Lord  was  perfectly  right  in  his  construction 
of  the  statute,  and  in  the  opinion  which  he  formed  of  the  evidence 
relied  on  by  the  plaintiff  in  this  case  with  a  view  to  bring  it  within 
the  exception.  According  to  the  words  of  the  statute,  the  exception 
docs  not  apply  unless  the  vendee  both  receive  and  accejit.  Xow  that 
acceptance  I  cannot  consider  to  be  any  other  than  the  ultimate  accept- 
ance, and  such  as  completely  affirms  the  contract.  What  the  nature 
of  this  order  was,  or  under  what  circumstances  it  was  given,  was  not 
proved.     Possibly  the  sponge  was  sent  down  upon  speculation  only. 

RooKE,  J.  I  am  of  the  same  opinion.  It  does  not  appear  to  me 
that  there  was  such  an  acceptance  by  the  defendant  as  has  been  con- 
tended. 

Chambre,  J.  The  case  appears  to  me  to  be  too  clear  to  require  any 
further  observation.  Certainly  there  was  no  acceptance  of  the  goods 
by  the  defendant,  unless  we  can  consider  a  refusal  to  accept  as  amount- 
ing to  an  acceptance. 

Shepherd  took  nothing  by  his  motion. 


ANDERSON  v.   SCOT. 
At  Nisi  Fmus,  coram  Lord  Ellenborough,  1806. 

[Reported  in  1  Campbell,  235,  note.] 

Special  assumpsit  for  the  non-delivery  of  wine  bought  by  the 
plaintiff  of  the  defendant.  It  appeared  that  the  plaintiff  went  into 
the  defendant's  cellar  and  selected  several  pipes  of  wine,  for  which  he 
agreed  by  parol  to  pay  a  certain  price:  the  spills  or  pegs  by  Avhich 
the  Avine  is  tasted  were  then  cut  off;  plaintiff's  initials  were  marked 


102  HINDE   V.   WHITEHOUSE.  [CHAP.    I. 

on  the  casks  by  defendant's  clerk  in  his  presence,  and  plaintiff  took  the 
gauge  numbers.  It  was  objected  that  this  sale  was  within  the  Statute 
of  Frauds ;  but  Lord  Ellenborough  held  that  the  cutting  off  the  spills, 
and  the  marking  of  plaintiff's  initials  on  the  casks  by  defendant's 
agent,  in  the  presence  of  all  the  parties,  amounted  to  a  delivery.  It 
was  then  contended  that  this  proved  the  contract  laid  in  the  declara- 
tion to  have  been  performed.  The  plaintiff  complained  of  the  non- 
delivery of  the  wine ;  whereas  he  had  himself  proved  that  it  had  been 
delivered.  As  to  which  Lord  Ellenborough  observed  that,  although 
there  had  been  an  incipient  delivery,  sufficient  to  take  the  case  out  of 
the  Statute  of  Frauds,  yet  that,  delivery  not  having  been  perfected, 
plaintiff  had  a  right  to  an  action  in  the  present  form  to  recover  dam- 
ages for  the  non-completion  of  the  contract. 


//^///ir^/^^  C^-^^/-^ 


y 


HINDE  V.  WHITEHOUSE  and  GALAN.  ^>^/>^^ 
L\  THE  King's  Bench,  June  20,  1806.  "y^X^^V 

[Rejwrted  in  7  East,  558-1  ^y  /t/'^^ 

In  assumpsit  the  plaintiff  declared  that  on  the  20th  of  September, 
1805,  at  Livei-pool,  he  was  lawfully  possessed  of  300  lihds.  of  sugar, 
then  lying  in  a  certain  warehouse  there,  and  caused  them  to  be  put  up 
for  sale  by  public  auction  upon  the  following  conditions :  "  The  highest 
bidder  to  be  the  purchaser,  and  in  case  of  dispute  the  lot  to  be  put  up 
again.  The  sugars  to  be  taken  with  all  faults  and  defects  as  they 
now  are,  at  the  king's  weights  and  tares,  with  the  allowance  of 
draft,  or  re-weighed  giving  up  the  draft.  To  be  at  the  purchaser's 
risk  from  the  time  of  sale ;  and  to  be  positively  removed  within  two 
months,  or  rent  to  be  paid  for  any  longer  time  they  may  remain. 
Payment  to  be  made  on  delivery  of  invoices  by  approved  bills  on 
London  to  the  satisfaction  of  the  seller  not  exceeding  three  months' 
date,  Not  to  advance  less  than  Scl  per  cwt.  at  each  bidding."  Of 
which  conditions  the  defendants  had  notice.  That  the  defendants 
were  the  highest  bidders  at  such  sale  for  two  lots  of  the  said  sugars, 
consisting  of  27  hhds.,  and  became  purchasers  of  the  same  at  the  price 
of  74s.  per  cwt.  at  the  king's  weights  and  tares,  with  the  allowance  of 
draft.  That  the  price  of  the  27  hhds.  amounted  to  £1265  Us.  M. 
That  the  plaintiff  on  the  23d  of  September  delivered  to  the  defend- 
ants an  invoice  of  the  27  hhds.,  wheretipon  they  became  liable  to  pay 
him  the  £1265  lis.  3(7.  But  that  the  defendants  did  not  make  pay- 
ment, &c.     There  were  other  counts  laying  the  contract  more  gener- 


SECT.    IV.]  HINDE   V.    WHITEHOUSE.  103 

ally.  To  all  which  the  defendants  pleaded  the  general  issue.  The 
cause  was  tried  before  Rooke,  J.,  at  the  last  assizes  at  Lancaster ;  and 
the  point  in  dispute  was,  whether  the  plaintiff  or  defendants  should 
bear  the  loss  of  the  sugars  in  question,  which  were  knocked  down  to 
the  defendants  by  the  auctioneer  on  the  20th  of  September,  and 
which  were  burned  on  the  22d  of  September  by  an  accidental  fire 
in  one  of  the  king's  warehouses  at  Liverpool,  where  they  were  de- 
posited. It  was  proved  that  tlie  sugars,  after  being  landed  at  Liver- 
pool on  the  plaintiff's  account,  were  deposited  in  one  of  the  king's 
warehouses  there,  under  the  locks  of  the  king  and  of  the  plaintiff, 
fi-om  Avhence  they  could  not  be  removed  until  the  duties  were  ])aid. 
Previous  to  the  sale  samples  were  taken  of  the  sugars,  about  half  a 
pound  weight  out  of  each  hhd.,  according  to  custom.  The  printed 
catalogues  of  goods  for  sale  were  made  out  in  this  form  and  dis- 
tributed :  — 

To  be  sold  by  auction,  at  Waterhouse  and  Sill's  office,  on  Friday,  the  20th  of  Sep- 
tember, 1805,  at  1  o'clock,  GOO  hhds.  Jamaica  sugar,  just  landed.  For  particulars 
apply  to  Thomas  Hinde,  merchant,  or  Waterhouse  and  Sill,  brokers. 


Lot. 

Mark. 

Hhds. 

Gross  Wt. 

1 

LA. 

10 

119     3     9 

2 

— 

10 
&C. 

121     0     7 

23 

R.  H. 

12 
&c. 

169    3  13 

27 

— 

15 

&c. 

207     2  13 

At  the  time  of  the  sale  the  auctioneer's  printed  catalogue  lay  on 
the  desk  before  him,  and  he  wrote  down  in  the  same  line  with  the 
lot  purchased  the  mime  of  the  highest  bidder  or  purchaser,  and  the 
price  bid  per  cwt.,  thus  :  — 


Lot. 

Mark. 

Hhds. 

Gross  Wt. 

23 

11.  H. 

12 

1G9     3  13 

n.  I  Whitehouse 
'^^■\   andGalan. 

27 

— 

15 

207     2  13 

- ,  (  Whitehouse 
'^*- 1   and  Galan. 

The  auction  was  lioldcn  at  the  time  and  place  appointed,  and  was 
conducted  by  Mr.  Sill  as  auctioneer.  There  was  no  other  sale  on  the 
same  day.  The  samples  were  exhibited  in  the  sale  room,  and  tlie  lots 
in  question  Avere  knocked  down  to  the  defendants  as  the  highest  bid- 
ders. At  the  commencement  of  the  sale,  the  auctioneer  having  the 
catalogue,  and  also  a  written  paper  containing  the  conditions  of  sale 
in  his  left  hand  at  the  same  thne,  read  the  latter  paper,  as  the  con- 
ditions on  which  the  sale  of  the  sugars  mentioned  in  the  catalogue 
was  to  i^roceed,  to  the  company  assembled  (including  one  of  the 
defeiulants),  which  paper  was  entitled,  "Conditions  of  sugar  sale, 
September-  20th,  1805;"  and  Avhich  paper  he  afterwards  deposited  on 


104  HINDE   V.   WHITEHOUSE.  [CHAP.   I. 

his  desk  under  the  catalogue,  on  which  catalogue  he  wrote  his  minutes 
of  the  bidders'  names  and  prices ;  but  the  two  pai^ers  were  not  fastened 
together  in  any  manner.     He  also  made  the  following  declaration  by 
parol  to  the  bidders,  which  after  the  sale  his  clerk  wrote  down  upon 
the  paper  of  conditions  of  sale  :  "  N.  B.  These  sugars,  gentlemen,  have 
been  drawn  in  the  warehouse  within  the  last  two  days ;  as  such,  no 
allowance  whatever  will  be  made,  except  where  an  evident  error  is 
manifest.     The  duties  are   not  yet  paid,  bvit  we  intend  paying  them 
to-morrow  morning."     It  is  customary  at  such  sales  to  give  an  option 
to  the  purchaser  to  take  the  sugars  sold  according  to  the  weights 
taken  at  the  king's  beam,  which  were  marked  in  the  catalogue,  or  to 
have  them  re-weighed ;    to  this  option  one  of  the  conditions  of  sale 
points.     But  it  is  the  constant  practice  for  the  purchaser  to  declare  his 
option  before  he  leaves  the  sale  room  if  he  wish  to  have  them  re- 
weighed,  in  order  that  the  seller  may  know  how  to  make  out  the 
invoices;    otherwise,  if  he  then  declare  no  option,  the  invoices  are 
made  out  according  to  the  weight  at  the  king's  beam.     In  the  present 
case   the   defendants   declared   no    option.      The   sugars   are    always 
weighed  on  landing  before  they  are  put  into  the  warehouse ;  on  which 
weighing  the  duties  are  ascertained ;    and  after  that  the  samples  are 
drawn.     The   samples  are  always  delivered  to  the  purchaser  as  a  part 
of  his  purchase  to  make  i;p  the  quantity,  and  were  accordingly  de- 
livered to  the  defendants  on  the  same  day  after  the  sale.    The  invoices 
were  made  out  on  Saturday  the  21st  of  September,  but  were  not 
delivered   to   the    defendants    till    Monday    the    23d,    after  the  fire 
happened.     The  duties  are  always  included  in  the  price  of  the  sugars, 
and  such  duties  are  always  paid  by  the  vendor,  and  are  so  required 
to  be  by  the  stat.  41  Geo.  3,  c.  44,^  and  till  paid  the  sugars  cannot  be 
removed  from  the  king's  warehouse.     The  sale  was  over  by  a  quarter 
past  4  o'clock  on  Friday  the  20th,  but  from  the  hours  of  office  and 
the   distance  there  Avas   not  time    after  the    sale  to  get  the  entries 
made  and  to  pay  the  duties.     Saturday  and  Sunday  were  holidays  at 
the  custom  house,  and  Monday  the  23d   was  kejit  as  such,  being  the 
king's  coronation  day.     The  circumstance  of  Saturday  being  a  holi- 
day was  not  recollected  at  the  time  of  the  sale,  when  the  auctioneer 
declared  that   the   duties    should  be  paid   on  the  morrow;   but  the 
circumstance  was  mentioned  by  the  defendant  Whitehouse  to  a  clerk 
of  Waterhouse  and  Sill.     On  this  point  the  jury  found  that  there  was 
no  neglect  in  the  vendor  as  to  the  non-payment  of  the  duties  before 
the  fire  happened,  whicla  was  in  the  course  of  Sunday  the  22d.     The 
auctioneer  said  that  it  often  happened  that  the  purchasers  sold  their 
sugars  again  before  the  duties  were  paid,  and  before  they  were  de- 
livered out  of  the  warehouse ;  and  that  after  the  fire  the  defendants 
gave  him  instructions  to  take  care  of  the  goods,  and  save  what  he 
could,  without  prejudice  to  the  rights  of  the  parties. 

1  And  vide  39  and  40  Geo.  3,  c.  48. 


SECT.    IV.]  HINDE   V.    WHITEHOUSE.  105 

Upon  this  proof  it  was  objected  that  tliere  was  no  legal  evidence 
sufficient  to  fix  the  defendants  with  tlie  purchase  of  these  good 
within  the  Statute  of  Frauds ;  there  being  no  memorandum  in 
writing  of  the  contract  signed  by  the  parties  or  their  authorized 
agent.  That  the  auctioneer  was  no  authorized  agent  of  the  vendees ; 
but  that,  supposing  he  was  so,  the  whole  contract  must  appear  upon 
the  paper  signed  by  him  with  the  names  of  the  defendants,  wliereas 
the  conditions  of  sale,  which  formed  an  essential  part  of  the  contract, 
were  not  so  signed,  nor  in  any  way  connected,  except  by  parol  testi- 
mony which  was  inoperative  by  the  statute,  Avith  the  catalogues  signed. 
And  that  the  delivery  of  the  samples  was  diverso  intuitu,  and  not  as 
part  of  the  goods  contracted  for.  The  learned  judge  overruled  the 
objection,  but  reserved  the  point ;  and  a  verdict  was  found  for  the 
plaintiff  for  £1110.  ^Yhereupon  a  rule  nisi  Avas  obtained  in  Easter 
term  last  for  setting  aside  the  verdict  and  granting  a  new  trial  ujjon 
the  same  grounds  of  objection ;  which  rule  was  in  this  term  o})posed 
by  P«?-A',  Topjjinff,  and  /Scarlett,  who  shewed  cause,  and  supported  by 
Sir  V.  Gibbs,  3Iarshall,  Serjt.,  Holroyd,  and  iJttledale.  The  case 
was  much  argued,  upon  the  circumstances  of  it ;  but  it  is  sufficient  to 
state  the  general  points. 

On  the  part  of  the  plaintiff  it  Avas  contended :  First,  that  sales  by 
auction  are  not  within  the  Statute  of  Frauds  at  all,  because  from  the 
publicity  of  such  transactions  there  is  no  danger  of  perjury  in  the  fab- 
rication of  pretended  contracts,  which  it  was  the  object  of  the  statute 
to  guard  against  in  private  transactions,  such  alone  being  open  to  that 
danger.     For  which  they  cited  the  opinion  thrown  out  in  Simon  v. 
Metivier  or  Motivos.^     Secondly,  that  if  such  sales  Avere  Avithin  the 
statute,  yet  that  the  requisites  of  it  were  complied  Avith  here  either,  first, 
by  the  written  memorandum  of  the  contract  of  sale,  on  which  Avas  sub- 
scribed the  name  of  the  purchaser,  made  at  the  time  by  the  auctioneer, 
AA'ho  Avas  to  be  considered  as  the  agent  of  both  parties,  according  to 
the  case  cited.     And  they  contended  that  the  conditions  of  sale  being 
on   a  separate  piece  of  paper  made  no  difference ;   being  exhibited 
together  Avitli  the  paper  so  subscribed  at  the  time  of  the  sale,  as  form- 
ing part  of  the  terms  on  which  the  contract  of  sale  Avas  to  be  made : 
and  that  it  was  not  necessary  for  the  two  pieces  of  paper  to  be  attached 
to  each  other  by  a  pin  or  other  fiistening;  for  the  same  objection  might 
still  be  made  that  Avhether  so  attached  or  not  at  the  time  must  be 
proved  by  parol  evidence.     But  that  if  the  objection  had  any  Aveight, 
it  would  go  the  length  of  i)roving  that  no  parol  evidence  could  be  given 
to  shew  that  the  pi'inted  conditions  exhibited  at  the  time  of  the  sale 
were  part  of  the  terms  of  sale,  since  they  were  not  annexed  to  the 
AAT-itten  contract  subscribed  Avith  the  purchaser's  name  by  the  auc- 
tioneer.    Or,  secondly,  that  at  any  rate  the  case  Avas  taken  out  of  the 
1  1  "Black.  Rep.  601,  2,  and  3  Burr.  1922. 


106  HINDE   V.   WHITEHOUSE.  [CHAP.   I. 

statute  by  a  part  delivery  of  the  goods  sold ;  which  the  delivery  of  the 
samples  must  be  taken  to  be ;  being  accounted  for  as  a  part  of  the 
quantity  sold,  and  included  as  such  in  the  weight  at  the  king's  beam, 
by  which  the  duties  were  ascertained. 

On  the  part  of  the  defendants  it  was  urged :  First,  that  the  words  of 
the  17th  section  of  the  statute  compi-ehended  all  contracts  for  the  sale 
of  goods  for  £10  or  upwards,  without  any  distinction  between  sales  by 
auction  and  other  sales ;  though,  if  the  positive  words  of  the  statute 
cou.ld  be  dispensed  with  by  general  reasoning,  the  frequent  disputes 
which  arose  at  public  sales  concerning  the  terms  of  the  bidding  shewed 
that  they  were  as  much  within  the  mischief  meant  to  be  guarded 
against  as  any  other  sales  :  the  condition  might  be  varied  during  the 
sale,  or  a  new  condition  added,  or  one  set  of  conditions  might  be  sub- 
stituted for  another  afterwards.     Secondly,  sujDposing  such  sales  to  be 
within  the  statute,  it  was  contrary  to  the  plain  fact  to  consider  the 
auctioneer,  who  was  appointed  and  paid  by  the  seller  alone,  and  over 
whom  the  purchaser  had  no  control,  as  the  agent  of  the  latter.     That 
the  memorandum  made  by  the  auctioneer  of  the  purchaser's  name  and 
the  sum  bid  was  merely  for  the  private  information  of  his  employer, 
and  which  the  buyer  had  no  right  to  inspect.     And  they  denied  the 
authority  of  Simon  v.  Metivier  on  both  points ;   which  they  said  had 
been  broken  in  upon,  with  respect  to  sale^  of  land  by  auction,  in 
Walker  v.  Constable  ^  in  C.  B.,  Stansfield  v.  Johnson  ^  before  Ld.  C.  J. 
Eyre,  and  by  the  Master  of  the  Rolls  in  Buckmaster  v.  Harrop ;  ^  and 
though  sales  of  land  depend  upon  another  section  of  the  statute,  yet 
in  this  respect  there  is  no  distinction  in  reason  between  the  two.* 
Thirdly,  they  argued  that,  supposing  the  auctioneer  to  be  the  agent  of 
both  parties,  yet  here  was  no  sufficient  memorandum  in  Avriting  of  the 
bargain ;  because  there  Avas  no  connection,  either  external  or  internal, 
by  words  of  reference  or  by  the  context,  between  the  paper  signed  by 
the  auctioneer  and  the  other  paper  containing  the  conditions  of  sale, 
and  which  were  part  of  the  bargain  of  sale :  and  it  was  the  same  as 
if  the  auctioneer  had  verballv  declared  those  conditions.     That  the 
statute  did  not  go  to  exclude  parol  evidence  of  the  real  terms  of  the 
contract,  for  otherwise  the  check  intended  by  the  statute  would  be  nuga- 
tory ;  but  only  to  nullify  the  contract  so  made,  unless  the  terms  were 
committed  to  writing  and  signed,  &c.     That  neither,  fourthly,  did  the 
delivery  of  the  samples  take  the  case  out  of  the  statute  ;  because  the 
samples  were  delivered  diverso  intuitu,  to  enable  the  purchaser  to  com- 
pare the  bulk  of  the  goods  with  them,  to  see  that  they  corresponded, 

1  1  Bos.  &  Pull.  306.  2  1  Esp.  N.  P.  Cas.  101. 

3  7  Ves.  jun.  345.  But  vid.  what  was  said  by  Lord  Eldon,  C.  in  Coles  v.  Treco- 
thick,  9  Ves.  jun.  249. 

<  By  the  4th  section,  to  affect  lands  the  note,  &c.,  must  be  signed  by  an  agent  there- 
unto lawfully  authorized  by  writing,  &c.,  which  words  "  by  writing  "  are  omitted  in 
the  17th  section  touching  the  sale  of  goods. 


SECT.    IV.]  HINDE   V.    WHITEHOUSE.  107 

or  to  sell  by  them  again ;  and  not  as  a  part  of  the  bulk  itself.  And 
that  it  made  no  more  difference  that  the  samples  were  included  in  the 
weight  at  the  king's  beam  than  if  a  quantity  of  cloth  were  first  meas- 
ured and  then  sold,  and  a  small  strip  were  cut  off  by  way  of  sample  to 
identify  the  bulk  or  to  shew  to  customers.  Besides  Avhich,  the  duties 
were  to  be  i)aid  by  the  seller ;  and  Avliether  he  were  guilty  of  laches  or 
not  in  not  having  paid  them  before  the  accident,  yet  the  bulk  could  not 
have  been  delivered  to  the  purchaser  out  of  the  king's  warehouse  till  the 
duties  were  paid ;  but  an  absolute  sale  to  change  the  })roperty  implies 
a  present  power  of  delivery  at  the  place  where  the  goods  are. 

The  court  said  they  would  deliver  their  opinion  on  the  next  day ; 
which  Avas  now  done  by 

Lord  Ellexborough,  C.  J.  This  was  the  case  of  a  sale  by  auction 
of  sugars  in  the  king's  warehouse,  and  which  were  afterwards  burnt 
whilst  they  remained  there  under  the  king's  lock  and  deposited  there 
for  the  receiving  of  the  king's  duties.  And  the  question  is,  Whether 
such  a  sale  of  those  goods  has  taken  place  as  is  sufficient  to  change  the 
property,  and  to  make  them  the  goods  of  the  purchasers  ?  The  goods 
were  put  up  to  sale  on  the  20th  of  September,  in  pursuance  of  a  cata- 
logue of  sale  which  had  been  previously  distributed  for  that  pui-pose, 
containing  the  lots,  marks,  number  of  hogsheads,  and  gross  weights  of 
the  sugars,  and  referring  for  further  particulars  to  the  brokers;  and 
they  were  sold  on  that  day  according  to  certain  conditions  of  sale, 
which  the  auctioneer  read  to  the  bidders  assembled  as  the  conditions 
on  which  the  sale  of  the  sugars  enumerated  in  the  catalogue  was  to  be 
made  ;  (his  Lordship  here  described  the  catalogue,  and  read  the  condi- 
tions of  sale  as  before  stated)  ;  and  the  auctioneer  also  informed  them 
that  the  duties  were  not  then  paid,  but  would  be  paid  by  the  sellers  on 
the  morrow.  It  is  admitted,  however,  that  no  laches  is  imputable  to 
the  sellers  for  the  non-payment  of  the  duties  between  the  time  of  sale 
and  the  fire,  which  happened  on  the  22d  of  September.  Two  ques- 
tions have  been  made  on  the  17th  section  of  the  Statute  of  Frauds, 
upon  which  questions  it  depends  whether  what  has  passed  between  the 
parties  as  to  those  goods  constituted  a  valid  contract  of  sale  in  respect 
to  them.  The  first  question  argued  upon  the  latter  words  of  that  sec- 
tion is  this :  Is  the  writing  which  has  been  put  upon  the  catalogue  of 
sale  by  the  auctioneer  "  a  note  or  memorandum  in  writing  of  the  bar- 
gain made  and  signed  by  the  parties  to  be  charged  by  the  contract,  or 
their  agents  thereunto  lawfully  authorized,"  within  the  meaning  of  the 
statute  ?  The  second  question  is.  Whether  this  be  a  case  in  which  the 
buyer  can  be  said  to  have  "  accepted  part  of  the  goods  sold,  and  actu- 
ally received  the  same?"  But  independently  of  and  besides  these 
questions,  it  has  been  said  that  sales  by  auction  are  not  within  the 
statute;  and  the  case  of  Simon  v.  Motives,  reported  in  3  Burr.  1021 
and  1  Black  Rep.  590,  has  been  relied  on.     The  report  in  Burrow  does 


108  HINDE    V.   WHITEHOUSE.  [CHAP.    I. 

not  distinctly  mention  this  latter  point.     But  in  the  report  of  Sir  W. 
Blackstone,  Lord  Mansfield  speaking  of  sales  by  auction  says,  "  The 
solemnity  of  that  kind  of  sale  precludes  all  perjury  as  to  the  fact  itself 
of  sale."     He  then  mentions  the  case  of  a  sale  of  sugars  by  auction, 
which  were  afterwards  consumed  by  fire  in  the  auction  warehouse,  and 
where  the  loss  fell  uj^on  the  buyer.     He  afterwards  adds,  "  According 
to  the  inclination  of  my  j^resent  opinion,  auctions  in  general  are  not 
within  the  statute."     And  Mr.  Justice  Wilmot  says  that  he  "  inclined 
to  think  that  sales  by  auction,  openly  transacted  before  500  people,  are 
not  within  the  statute."     With  all  deference  to  these  opinions,  I  do  not 
at  i^resent  feel  any  suflicient  reason  for  dispensing  with  the  express 
requisition  of  a  memorandum  in  writing,  in  a  statute  applying  to  all 
sales  of  goods  above  the  value  of  £10  without   exception,   merely 
because  the  quantum  of  parol  evidence  in  the  case  of  an  auction  is 
likely  to  render  the  danger  of  perjury  less  considerable.     That  argu- 
ment in  a  degree  applies  to  all  sales  in  market  overt :  and  if  we  once 
get  loose  from  the  jiositive  words  of  the  statute,  it  will  become  a  ques- 
tion only  of  the  quantum  and  degree  of  perjury  in  each  particular 
instance:    which  opens   a  door  to  an  indefiniteness   of  construction 
founded  on  all  the  varying  circumstances  of  the  time  and  frequency  of 
persons  attending  the  place  of  sale,  and  the  Hke;    which  would  be 
destructive  of  all  certainty  of  practice,  and  render  the  rule  of  the  stat- 
ute perhaps  more  mischievous  than  beneficial  to  the  trading  world  who 
are  to  be  governed  by  it.     I  am  not  therefore  prepared  to  say  that  sales 
by  auction  are  not  meant  to  be  comprehended  within  the  statute.     Nor 
would  I  be  understood  as  giving  any  conclusive  opinion  to  the  contrary : 
neither  is  it  necessary  that  I  should  upon  the  present  occasion.     The 
first  question  on  the  letter  of  the  statute  is.  Is  this  a  memorandum  of 
a  bargain  made  by  an  agent  of  both  parties  ?     In  respect  to  sales  of 
goods,  it  has  been  uniformly  so  holden  ever  since  the  case  of  Simon  v. 
Motives ;  and  it  would  be  dangerous  to  break  in  upon  a  rule  which 
affects  all  sales  made  by  brokers  acting  between  the  parties  buying  and 
selling,  and  where  the  memorandum  in   the  broker's  book,  and  the 
bouscht  and  sold  notes  transcribed  therefrom  and  delivered   to  the 
buyers  and  sellers  respectively,  have  been  holden  a  suflicient  compli- 
ance with  the  statute  to  render  the  contract  of  sale  binding  on  each. 
All  the  great  transactions  of  sale  in  this  great  city  are  so  conducted, 
and  stand  on  this  foundation  of  legality  only;  and  it  is  too  late,  I  con- 
ceive, to  draw  it  into  question.     Supposing  the  auctioneer  or  broker 
for  sale  to  be  the  agent  for  both  parties,  the  question  then  is.  Has  he 
made  a  memorandum  of  the  bargain  in  this  case  ?  and  it  appears  to 
me  that  he  has  not.     The  minute  made  on  the  catalogue  of  sale,  which 
is  not  annexed  to  the  conditions  of  sale,  nor  has  any  internal  reference 
thereto  by  context  or  the  like,  is  a  mere  memorandum  of  the  name  of 
a  person  whom  perhaps  we  may  intend  to  be  the  purchaser,  and  of  the 


SECT.    IV.]  HINDE    V.    WHITEHOUSE.  109 

quantity  and  piice  of  the  goods,  which  we  may  perhaps  on  the  foot  of 
such  memorandum  also  intend  to  have  been  sold  to  the  person  so 
named  in  the  catalogue.  But  in  treating  it  as  such  memorandum 
throughout,  we  must  intend  also  (contrary  to  the  fact)  that  the  goods 
were  sold  for  ready  money,  and  unattended  by  the  circumstances  spe- 
cified in  the  conditions  of  sale.  And  the  conditions  of  sale,  though  as 
unsigned  they  cannot  be  evidence  of  the  bargain  itself,  are  yet  capable 
of  being  given  in  evidence,  and  accordingly  have  been  so,  as  a  part  of 
the  transaction  between  the  parties,  and  in  order  to  shew  that  it  was 
on  those  conditions  that  the  goods  M'ere  sold.  I  am  of  opinion  there- 
fore that  the  mere  writing  on  the  catalogue,  not  being  by  any  reference 
incorporated  with  the  conditions  of  sale,  is  not  a  memorandum  of  a 
bargain  under  those  conditions  of  sale. 

As  to  the  next  question  on  the  statute,  inasmuch  as  the  half  pound 
sample  of  sugar  out  of  each  hogshead  in  this  case  is  by  the  terms 
and  conditions  of  sale  so  far  treated  as  a  part  of  the  entire  bulk  to  be 
delivered,  that  it  is  considered  in  the  original  weighing  as  constituting 
a  part  of  the  bulk  actually  weighed  out  to  the  buyer,  and  to  be  allowed 
for  specifically  if  he  should  choose  to  have  the  commodity  re-weighed, 
I  cannot  but  consider  it  as  a  part  of  the  goods  sold  under  the  terms  of 
the  sale,  accejited  and  actually  received  as  such  by  the  buyer.  And 
although  it  be  delivered  partly  alio  intuitu,  namely,  as  a  sample  of 
quality,  it  does  not  therefore  prevent  its  operating  to  another  consistent 
intent  also  in  pursuance  of  the  purposes  of  the  parties  as  expressed  in 
the  conditions  of  sale,  namely,  as  a  j^art  delivery  of  the  thing  itself,  as 
soon  as  in  virtue  of  the  bargain  the  buyer  should  be  entitled  to  retain 
and  should  retain  it  accordingly. 

As  to  the  last  point  made  in  argument,  viz.,  that  there  has  been  no 
eftectual  sale  in  this  case  made,  because  the  commodity  was  incapable 
of  delivery  till  the  king's  duties  were  paid,  and  which  were  to  be  paid 
by  the  seller,  I  think  that  the  sale  within  the  meaning  of  the  parties 
to  the  conditions  was  complete,  so  as  to  cast  the  subsequent  risk  of  loss 
ujion  the  buyer.  The  words  "  time  of  sale  "  and  "  highest  bidder  to 
be  the  purchaser"  all  evidently  relate  to  the  transaction  of  selling  at 
the  time  and  place  of  auction ;  which  was  considered  between  them  as 
efiectual  for  the  purpose  of  transferring  the  property  and  the  conse- 
quent risk  of  loss  from  the  seller  to  the  buyer,  notwithstanding  the 
intermediate  right  of  custody  or  lien  upon  the  goods  in  the  crown 
until  the  duty  should  be  paid.  Besides,  after  earnest  given  the  vendor 
cannot  sell  the  goods  to  another  without  a  default  in  the  v«adee ;  and 
therefore,  if  the  vendee  do  not  come  and  j^ay  for  and  take 'away  the 
goods,  the  vendor  oi;ght  to  go  and  request  him;  and  then,  if  he  do  not 
come  and  i)ay  for  and  take  away  the  goods  in  a  convenient  time,  the 
agreement  is  dissolved,  and  the  vendor  is  at  liberty  to  sell  them  to  any 
other  person.    I^er  Holt,  C.  J.,  in  Langford  v.  Administratrix  of  Tiler, 


no 


HODGSON  V.   LE   BRET. 


[chap.  I. 


Salk.  113.  So  in  Noy's  Maxims,  88,  it  is  said :  "  If  I  sell  my  horse  for 
money,  I  may  keep  him  until  I  am  paid ;  but  I  cannot  have  an  action 
of  debt  until  he  be  delivered ;  yet  the  property  of  the  horse  is  by  the 
bargain  in  the  bargainor  or  buyer.  But  if  he  do  presently  tender  me 
my  money  and  I  do  refuse  it,  he  may  take  the  horse  or  have  an  action 
of  detainment.  And  if  the  horse  die  in  my  stable  between  the  bargain 
and  the  delivery,  I  may  have  an  action  of  debt  for  my  money,  because 
by  the  bargain  the  property  was  in  the  buyer."  On  this  latter  ground 
therefore  1  do  not  think  that  the  sale  is  incomplete.  And  as  the  stat- 
ute has  been  satisfied  by  a  part  delivery  of  the  goods  sold,  accepted  by 
the  buyer,  I  think  the  contract  of  sale  valid  as  far  as  respects  the  stat- 
ute also,  and  that  the  rule  for  a  new  trial  should  be  discharged. 


Some  of  the  judges  on  the  bench,  conceiving  that  the  Lord  Chief 
Justice  had  questioned  generally  the  authority  of  the  case  of  Simon  v. 
Metivier,  desired  to  have  it  understood  that  they  concurred  in  the 
judgment  delivered  in  this  case  on  the  ground  that  a  part  delivery  of 
the  thing  bought  (which  they  considered  the  delivery  to  and  accejstance 
of  the  samples  by  the  buyer  to  be  in  this  case)  took  the  case  out  of 
the  statute  ;  leaving  the  authority  of  that  case  to  stand  as  it  did  before 
on  its  own  ground,  untouched  and  unsanctioned  by  the  present  decision. 
But  the  Lord  Chief  Justice  declared  that  the  only  part  of  that  case 
which  he  meant  to  question,  though  it  w^as  unnecessary  at  present  to 
decide  upon  it,  wa^  the  opinion  thrown  out  that  auctions  were  not 
within  the  statute,  of  which  he  should  reserve  his  approbation  for  future 
consideration.  But  as  to  the  other  point  there  decided,  that  supposing 
sales  by  auctioneers  or  brokers  to  be  within  the  17th  section  of  the 
statute,  the  auctioneer  or  broker  must  be  taken  to  be  the  agent  of  both 
parties,  the  practice  had  become  so  settled  since  the  decision  of  that 
case  that  it  would  be  dangerous  to  shake  it,  and  it  was  not  his  inten- 


tion to  question  it.  ^^ 


Mule  discharged. 


HODGSON  V.  LE  BRET. 
bJ  Nisi  Prius,  coram  Lord  Ellenborough,  February  26, 1808. 

[Reported  in  1  Campbell,  233.] 

In  an  action  for  goods  sold  and  deUvered,  the  plaintiif 's  witnesses 
stated  that  the  defendant,  Madame  Le  Bret,  came  to  his  shop  and  pur- 
chased of  him  a  piece  of  Irish  hnen  and  several  jjieces  of  muslin  at 
separate  prices ;  she  wrote  her  name  upon  the  linen  at  the  time,  but 
the  muislin  Avas  not  then  produced ;  none  of  the  goods  were  sent  home 
to  her  till  some  months  after,  when  she  refused  to  accept  them,  saying 


SECT.   IV.]  ELMORE  V.   STONE.  Ill 

that  she  had  not  bouglit  them.  As  her  conversation  with  the  plaintiff 
was  carried  on  in  French,  -which  the  witnesses  did  not  perfectly  under- 
stand, they  could  not  speak  Avith  certainty  as  to  her  intentions  in  mark- 
ing her  name  upon  the  linen. 

I^ca-k,  for  the  defendant,  contended  that  the  contract  Avas  Aoid 
under  the  17th  section  of  the  Statute  of  Frauds,  being  for  the  sale  of 
goods  above  the  value  of  £10,  and  the  buyer  not  having  accepted  any 
part  of  the  goods  sold,  nor  given  any  thing  as  earnest  to  bind  the  bar- 
gain, and  there  being  here  no  memorandum  in  writing  signed  by  the 
parties  or  their  authorized  agents. 

Gary-oto,  on  the  other  side,  maintained  that  the  circumstance  of  the 
defendant  having  written  her  name  upon  the  linen  at  the  time  of  the 
sale  took  the  case  com2)letely  out  of  the  statute. 

Lord  Ellenborough  held  that  this  Avould  be  sufficient  as  to  the  linen 
itself,  if  the  defendant's  purpose  in  Avriting  her  name  upon  it  was 
thereby  to  denote  that  she  had  purchased  it,  and  to  apjjropriate  it  to 
her  own  use ;  but  that  as  nothing  had  been  written  on  the  muslins, 
and  as  they  had  not  even  been  produced  to  the  defendant  along  with 
the  linen,  the  sale  as  to  them  was  clearly  void  by  the  statute. 

The  cause  WjOs  afterwards  referred. 

r    r  (A^     X   j^^  /ll        V     ^     '^ 

'     IV,,     V^  t^     ■      yVnELMORE  V.  STONE. 

V   iV  '  r  ^  T 

tl^y     v/  I     In  the  Common  Fleas,  February  9,  1800. 

r  [Reported  in  1  Taunton,  457.] 

This  was  an  action  brought  to  recover  the  price  of  two  horses,  which 
it  was  contended  had  been  sold  to  the  defendant.  The  declaration 
contained  one  count  upon  a  bargain  and  sale,  and  another  upon  a 
sale  and  delivery.  Upon  the  trial  of  this  cause  at  the  Middlesex  sit- 
tings in  Trinity  term  last,  before  Mansfield,  C.  J.,  it  appeared  that  the 
plaintiff,  who  kept  a  livery-stable  and  dealt  in  horses,  having  demanded 
180  guineas  for  these,  the  defendant,  after  offering  a  less  price  which 
was  rejected,  at  length  sent  Avord  that  "  the  horses  Avere  his,  but  that, 
as  he  had  neither  scrA'ant  nor  stable,  the  plaintiff  must  keep  them  at 
livery  for  him."  The  plaintiff  upon  this  removed  them  out  of  his  sale 
stable  into  another  stable.  Xens,  Serjt.,  for  the  defendant,  contended 
that,  as  this  was  a  bargain  and  sale  of  goods  of  greater  value  than 
£10,  a  note  in  Avriting  was  necessary  to  be  proA'ed,  because  there  was 
no  sufficient  delivery.  Such  a  constructive  delivery  as  this  Avould  not 
avail,  he  said,  to  take  the  case  out  of  the  statute.     Mansfield,  C.  J., 


112  ELMORE  V.    STONE.  [CHAP.   I. 

was  of  opinion  that  there  was  a  sufficient  delivery,  but  reserved  the 
point;  and  the  jury  found  a  verdict  for  the  plaintiff. 

On  the  following  day  Lens  obtained  a  rule  nisi  to  set  aside  the  ver- 
dict and  enter  a  nonsuit  upon  the  objection  above  mentioned.  And  on 
a  subsequent  day  in  the  same  term 

Best^  Serjt.,  shewed  cause.  He  contended,  first,  that  the  transfer  of 
the  horses  from  the  stable  where  the  j^laintiff's  horses  were  exposed  to 
sale,  and  where  these  at  first  stood,  to  a  livery  stable,  where  they  stood 
at  the  expense  and  risk  of  the  defendant,  was  equivalent  to  an  actual 
delivery.  He  might  after  that  time  have  maintained  trover  for  them, 
and  if  he  had  died  they  would  have  belonged  to  his  executors.  The 
delivery  was  complete,  so  far  as  any  delivery  was  capable  of  taking 
place  consistently  with  the  disposition  the  defendant  chose  to  make  of 
them.  Second,  if  this  was  not  an  actual  delivery,  it  is  one  of  those 
cases  to  which  the  Statute  of  Frauds  does  not  apply,  because  an  actual 
delivery  is  impossible  :  no  delivery  was  intended  or  could  be  made 
here,  without  defeating  the  defendant's  purpose  of  keeping  the  horses 
at  livery  with  the  plaintiff,  and  therefore  none  was  necessary. 

Lens^  contra.  The  statute  in  requiring  a  delivery  intended  that 
there  should  be  some  distinct  substantive  act,  independent  of  the  bar- 
gain and  capable  of  proof,  to  corroborate  the  parol  account  of  the 
bargain.  But  there  is  nothing  here  distinct  from  the  parol  contract  to 
confirm  it,  and  the  only  evidence  of  the  delivery  is  found  m  the  terms 
of  the  contract  itself  In  the  case  of  a  sale  of  heavy  goods  in  a  ware- 
house, or  of  hay,  or  the  like,  it  has  indeed  been  held  that  corporal 
delivery  is  not  necessary,  but  that  the  delivery  of  the  key,  or  other 
symbolical  or  constructive  delivery,  is  sufficient.  Chaplin  v.  Rogers,  1 
East,  194.  But  nothing  here  has  been  done  towards  the  deUvery, 
except  a  request  that  the  horses  might  stand  at  livery ;  therefore  the 
whole  still  rests  in  parol.  It  might  with  equal  propriety  be  contended 
that  in  the  common  occurrence  where  goods  are  ordered  in  a  shop 
and  left  till  called  for,  that  is  a  delivery.  [Heath,  J.,  observed  that,  if 
the  goods  were  weighed  out  or  measured,  that  would  be  a  sufficient 
delivery.]  The  second  argument  resolved  itself  into  the  first.  If  goods 
are  not  capable  of  an  actual  delivery,  a  constructive  dehvery  is  suffi- 
cient. But  in  the  present  case  there  is  neither  an  actual  nor  a  con- 
structive delivery.  It  is  material  that  the  defendant  never  rode  the 
horses,  nor  exercised  over  them  any  one  act  of  ownership ;  nor  has  any 
act  whatever  been  done  to  confirm  the  bargain  since  it  was  made. 

Cur.  adv.  vult. 

Mansfield,  C.  J.,  now  delivered  judgment.  The  objection  made  to 
this  verdict  was  the  want  of  a  memorandum  in  writing  of  the  sale,  and 
of  a  delivery.  I  thought  at  the  trial  that  there  was  no  need  of  a  mem- 
orandum in  writing,  because  of  the  direction  given  that  the  horses 


SECT.   IV.]  HART   V.    8ATTLEY.  113 

Bhould  stand  at  livery.  They  were  in  lact  put  into  anotlier  stable,  but 
that  is  wholly  immaterial.  It  was  afterwards  argued  that  this  was  not 
a  sufficient  delivery ;  but  upon  consideration  we  think  tliat  the  horses 
were  com])k'tely  the  horses  of  the  defendant,  and  that  when  they  stood 
at  the  jjlaiutill's  stables  they  were  in  efl'ect  in  the  defendant's  posses- 
sion. There  are  many  cases  of  constructive  delivery  where  the  price 
of  goods  may  be  recovered  on  a  count  for  goods  sold  and  delivered, 
instead  of  a  count  for  goods  bargained  and  sold.  A  connnon  case  is 
that  of  goods  at  a  wharf,  or  in  a  warehouse,  where  the  usual  practice 
is  that  the  key  of  the  warehouse  is  delivered,  or  a  note  is  t^iven 
addressed  to  the  wharfinger,  who  in  consequence  makes  a  new  entry  of 
the  goods  in  the  name  of  the  vendee,  although  no  transfer  of  the  local 
situation  or  actual  possession  takes  place.  Thus  in  the  present  case, 
after  the  defendant  had  said  that  the  horses  must  stand  at  liveiT^,  and 
the  plaintiff  had  accej^ted  the  order,  it  made  no  difference  Avhether 
they  stood  at  livery  at  the  vendor's  stable,  or  whether  they  had  been 
taken  away  and  put  in  some  other  stable.  The  plaintiff  possessed  them 
from  that  time,  not  as  the  owner  of  the  horses,  but  as  any  other  livery- 
stable  keeper  might  have  them  to  keep.  Under  many  events  it  might 
appear  hard  if  the  plaintiff  should  not  continue  to  have  a  Ueu  upon 
the  horses  Avhich  were  in  his  own  possession,  so  long  as  the  price 
remained  unpaitl ;  but  it  was  for  him  to  consider  that  before  he  made 
his  agreement.  After  he  had  assented  to  keep  the  horses  at  livery,  they 
Avould  on  the  decease  of  the  defendant  have  become  general  assets;  and 
60,  if  he  had  become  bankrupt,  they  would  have  gone  to  his  assignees. 
The  plaintiff  could  not  have  retained  them,  although  he  had  not 
received  the  price.     Qonsequently  the  rule  must  be 

y/       J      1/     '    \       /        [\J  Discharged} 

11  «,^  .    Y*      ./v'^ART  AND  Anotheh  v.  SATTLEY.^- 
AyU^    IL  ''      At  Guildhall,  coram  Chambre,  J.,  1814 

fjj^  [Reported  in  3  Campbell,  528.]  *^^^^ 


This  was  an  action  for  goods  sold  and  delivered,  to  recover  the  pric6^^      ^ 
of  a  hogshead  of  gin.  Pj 

The  plaintiffs  are  spirit  merchants  in  London,  who  had  been  in  the    yy/h'  y j. 
habit  of  supplying  spirits  to  the  defendant,  a  publican  near  Dartmouth   ^  ^^^ 
in  Devonshire.     In  these  previous  dealings  the  course  had  been  for  the     ^  ^  — 
plaintiffs  to  ship  the  goods  on  board  a  Dartmouth  trader  in  the  river  "^  ^/ 
Thames,  and  the  defendant  had  always  received  them.     The  hogshead.  '^  (//f^ 
1  See  Green  v.  Merriam,  28  Vt.  801.  —  E©.  ^ 


114  ASTEY   V.    EMERY.  [CHAP.   l. 

of  gin  in  question  was  verbally  ordered  by  the  defendant  of  the  plain- 
tiffs' traveller,  and  was  shipped  in  the  same  manner  as  tlie  others  had 
been.  There  was  no  evidence  either  that  it  had  been  delivered  to  the 
defendant  in  Devonshire  or  that  he  had  refused  to  accej^t  it. 

Lens,  Scrjt.,  for  the  defendant,  contended  thei'e  was  no  sufficient 
contract  here  according  to  the  17th  section  of  the  Statute  of  Frauds, 
which  in  a  case  like  this,  where  the  delivery  of  the  goods  is  relied 
upon,  requires  that  "  the  buyer  shall  accept  part  of  the  goods  sold  and 
actually  receive  the  same." 

Chambre,  J.  I  think  iinder  the  circumstances  of  this  case  the 
defendant  must  be  considered  as  having  constituted  the  master  of  the 
ship  his  agent  to  accept  and  receive  the  goods.^ 

Verdict  for  the  plaintiff. 


ASTEY  V.  EMERY. 

In  the  King's  Bench,  June  5,  1815. 

[Reported  in  4  Maule  Sf  Selwyn,  2G2.] 

Assumpsit  for  goods  sold  and  delivered,  and  the  money  counts. 
Plea,  non  assxmipsit.  At  the  trial  before  Bayley,  J.,  at  the  last  Not- 
tinghamshire assizes,  the  case  was  thus  :  — 

The  action  was  for  the  price  of  a  quantity  of  barley,  the  property  of 
the  plaintiff,  which  Longstaffe,  a  corn  factor  at  Nottingham,  on  the 
18th  of  November  agreed  to  sell  to  the  defendant  at  38s.  per  quarter. 
The  barley  being  then  in  the  hands  of  one  Turner  for  the  p\irpose  of 
being  kiln-dried,  and  Longstaffe  having  a  warehouse  at  Derby,  it  was 
agreed  that  it  should  be  delivered  at  Longstaffe's  warehouse  there,  to 
go  by  the  first  boat  of  Longstaffe  which  went  from  Nottingham  to 
Derby.  The  3Ss.  per  quarter  was  a  higher  i^rice  on  account  of  the 
delivery  being  to  be  made  at  Longstaffe's  expense.  The  defendant 
went  to  Turner,  told  him  that  he  had  bought  the  barley,  and  desired 
him  to  see  it  delivered,  and  measured,  and  put  up  properly.  Two  or 
■  three  days  afterwards  the  barley  was  sent  by  Longstaffe's  first  boat, 
and  on  the  2Gth  of  November  Longstaffe's  clerk  saw  the  defendant  at 
Derby  and  delivered  him  the  invoice,  and  the  defendant  took  it  and 
requested  a  week  longer  to  pay  the  money,  Avhich  was  allowed  him. 
On  the  same  day,  however,  he  gave  notice  that  he  would  not  accept 
the  barley.  The  barley  arrived  at  Longstaffe's  warehouse  at  Derby  on 
the  1st  of  December.  It  was  objected  for  the  defendant  iipon  the 
Statute  of  Frauds  that  this  being  a  contract  for  the  sale  of  goods  for 
the  price  of  upwards  of  £10,  was  void  for  want  of  part  acceptance,  or 
earnest,  or  some  note  in  writing.  To  which  it  was  answered  that  this 
1  See  Spencer  v.  Hale,  30  Vt.  314.  — Ed. 


-♦  •  trm  ^Tf 


SECT.    IV.]  ASTEY    V.    EMERY.  115 

was  not  simply  a  contract  for  the  sale  of  goods,  but  a  mixed  contract 
for  the  carriage  as  Trell  as  the  sale  of  them ;  for  the  38s.  included  the 
price  for  carriage.  The  learned  judge,  being  of  opinion  that  it  was  a 
sale  within  the  statute,  directed  a  nonsuit,  but  gave  leave  to  the  plain- 
tiff to  move  to  enter  a  verdict. 

Accordingly,  Vavf/han,  Serjt.,  obtained  a  rule  Jiisi  in  tlic  last  term, 
and  made  a  second  point ;  viz.,  that  here  was  a  delivery  to  the  defend- 
ant ;  for  the  defendant  not  only  directed  the  mode  of  conveyance,  but 
appointed  the  particular  boat,  viz.,  Longstaffe's  first  boat,  and  employed 
Turner  to  look  to  the  delivery  for  him.  Therefore  the  delivery  on 
board  the  boat  at  Nottingham  was  a  delivery  to  the  defendant;  and  the 
defendant  so  considered  it,  for  when  he  had  notice  of  it  he  obtained 
time  for  payment. 

Copley^  Serjt.,  and  Reader  showed  cause;  and  argued  that,  if  the 
answer  given  to  the  objection  made  at  the  trial  could  prevail,  it  would 
avoid  the  statute  in  every  case  where  a  sale  is  to  be  followed  by 
delivery  of  the  goods.  For  in  every  such  case  the  trouble  of  the  deliv- 
ery might  be  said  to  form  one  ingredient  amongst  others  in  the  price. 
But  they  urged  that  the  price  of  any  commodity  was  one  entire  thing, 
and  could  not  be  divided  into  so  many  payments  as  there  might  be 
considerations  included  in  the  price.  In  Kent  v.  Huskinson^  the  goods 
were  to  be  delivered,  and  there  was  one  entire  price,  yet  adjudged 
that  it  was  a  sale  within  the  statute.  Secondly,  as  to  the  delivery, 
the  pointing  out  the  first  boat  was  only  to  fix  the  time  and  not  the 
place  of  delivery,  for  by  the  terms  of  the  agreement  the  delivery  was 
to  be  at  the  warehouse  at  Derby ;  and  the  boat  was  the  vendor's  own 
boat,  so  that  the  barley  was  never  out  of  his  custody. 

J.  Balcjuy  (with  him  Vaughan,  Serjt.),  contra,  observed  that  Long- 
staffe  was  not  the  vendor,  but  only  agent  of  the  vendor  for  the  jnirpose 
of  sale;  but  for  the  purpose  of  the  delivery  was  agent  for  the  vendee, 
because  the  vendee  made  him  his  appointee  to  receive  the  barley. 
And  he  further  insisted  upon  the  points  made  at  the  trial  and  when 
the  rule  nisi  was  obtained,  particularly  as  to  Tm*ner's  being  directed 
by  the  defendant  to  inspect  the  measuring  and  loading  of  the  barley. 

Lord  Ellenborougii,  C.  J.  I  do  not  find  that  Turner  did  any 
corporal  act  at  the  time  of  the  loading  to  show  that  he  was  acting  for 
the  owner,  or  that  he  was  to  exercise  any  other  ofiice  than  that  of  a 
spectator.  The  barley  being  in  his  hands  at  the  time  of  the  sale,  it 
was  natural  enough,  because  it  was  beneficial  to  the  defendant,  to  avail 
himself  of  the  opportunity  of  Turner's  presence  to  see  that  the  quantity 
was  correct,  and  the  quality  iminjured  by  the  loading,  which  he  might 
do  without  meaning  that  it  should  amount  to  an  acceptance  on  his 
part.  And  if  this  had  been  a  mixed  contract,  one  should  have  expected 
a  separate  charge  for  the  delivery. 

1  3  B.  &  P.  233. 


116  TALVER  V.   WEST.  [CHAP.   I. 

Baylet,  J.  At  the  time  when  Turner  was  to  inspect  the  loading  of 
the  goods,  it  is  plain  that  the  vendee  had  no  right  to  have  them,  for 
they  were  to  be  delivered  at  Derby. 

Dampier,  J.  This  is  no  more  than  the  case  of  a  farmer  who  sells  his 
corn  to  a  miller  to  be  delivered  at  the  mill. 

Pek  Curiam,  i2w?e  discharged. 


TALVER   A^D   Another  v.  WEST. 
At  Nisi  Prius,  coram  Gibbs,  C.  J.,  1816. 

[Rejwrted  in  Holt,  178.] 

This  was  an  action  to  recover  the  price  of  some  trefoil  sold  by  plain- 
tiffs to  defendant ;  the  invoice  delivered  to  the  defendant  was  as  follows : 
"  Bouo-ht  of  Talver  and  Prestwich  the  half  quantity  of  four  hundred  sacks 
of  trefoil,  to  be  made  up  to  twenty-seven  tons,  at  £10  per  ton."  On  the 
other  side  credit  was  given  for  some  hops  sold  by  the  defendant  to  the 
plaintiffs,  and  a  balance  stated  to  be  due  to  them  of  £208.  The  hops 
were  taken  in  part  payment  of  the  trefoil,  which  remained  in  the  plain- 
tiffs' warehouse.;  no  sample  or  delivery  was  made  of  any  part  and  no 
money  was  paid ;  but  the  invoice  had  been  delivered  to  the  defendant, 
who  read  it  at  the  time  of  the  sale.  Some  months  after,  the  defendant 
came  to  the  warehouse  and  asked  for  his  seed ;  it  was  at  that  time  set 
apart  for  him  in  the  store,  but  it  had  no  particular  mark  to  denote  to 
whom  it  belonged.  Defendant  took  samples  of  it,  and  inquired  if  it 
had  not  been  thrown  down  and  mixed ;  he  finally  refused  it. 

Vcmgha?i,  Serjt.,  for  the  defendant,  objected  that  there  was  no  part 
delivery  or  earnest.  Some  of  the  trefoil  was  set  ai^art  in  the  plaintiffs' 
warehouse;  but  no  name  was  put  on  the  sacks  to  designate  them. 
The  sale  therefore  was  void  by  the  Statute  of  Frauds. 

JBest,  Serjt.,  for  the  plaintiffs,  contended  that  there  was  a  part  pay- 
ment by  the  dehvery  of  the  hops,  which  would  take  it  out  of  the  Stat- 
ute of  Frauds.  The  defendant,  moreover,  takes  samples,  and  twelve 
months  after  the  contract  comes  to  the  warehouse  to  demand  his  seed, 
which  is  there  set  apart  for  delivery. 

Gibbs,  C.  J.  If  the  trefoil  were  sold  to  be  paid  for  in  part  by  the 
delivery  of  the  hops,  the  plaintiffs  should  have  declared  specially,  and 
not  for  goods  sold  and  delivered ;  but  I  consider  this  case  not  within 
the  statute.  The  delivery  of  a  sample,  which  is  no  j^art  of  the  com- 
modity, will  not  take  the  case  out  of  the  statute ;  but  if  the  sample 
delivered  is  to  be  considered  as  j^art  of  the  thing  sold,  it  then  binds  the 
contract.     It  is  then  an  execution  of  the  bargain.     The  sale  in  this 


SECT.    IV.]  BLENKINSOP   V.   CLAYTON.  117 

case  was  complete  when  the  invoice  was  deliverecl,  and  the  defendant 
afterwards  took  samples.  He  then  took  them  for  his  own  use ;  they 
were  delivered  to  him  as  part  of  the  bulk ;  not  as  an  ordinary  sample 
to  guide  his  judgment  previous  to  a  purchase,  but  in  order  to  give 
him  possession  pf  the  tiling  ilfe^lf  The  statute  therefore  does  not 
apply.  iM  yt\J  Verdict  for  2^lciintiffs. 

NKINSOP  V.   CLAYTON. 


\  y  Y     .Kj  T 


^V  In4he  Common  Pleas,  June  20,  1817. 

Ai  T  \Rejportcd  in  7  Taunton,  597.] 


I 


In  this  action  the  plaintiff  declared  for  horses  and  goods  sold  and 
delivered,  and  for  the  keep  of  a  horse  sold  to  the  defendant.  Upon 
the  trial  of  the  cause  at  the  York  spring  assizes,  1817,  before 
Wood,  B.,  the  plaintiff  proved  that  he  had  sent  his  servant  with  a 
horse  to  a  fair  to  sell  it,,  and  that  the  defendant,  seeing  the  horse, 
followed  it  into  a  stable,  offered  £45  for  it,  and  said  he  should  in 
half  an  hour  have  a  stall  in  his  stable  vacant  to  receive  it.  The 
plaintiff's  servant  agreed  to  accept  the  sum  named,  and  taking  a 
shilling  in  his  hand  drew  the  edge  of  it  across  the  palm  of  the  de- 
fendant's hand,  and  replaced  the  shilling  in  his  own  pockot,  which 
the  witnesses  called  strikino;  off  the  bar":ain.  The  defendant  afterwards 
brought  a  chapman  to  the  stable,  and  stating  to  him  that  he  had 
bought  the  horse  offered  to  sell  it  to  him  at  a  profit  of  £5,  which 
the  other,  discovering  a  supposed  unsoundness,  declined ;  in  conse- 
quence of  which  discovery  the  defendant  returned  to  the  plaintiff's 
stable,  and  declined  his  purchase.  The  jilaintiff  contended,  first,  that 
the  act  of  striking  off  the  bargain  as  above  described  bound  the 
contract  so  as  to  satisfy  the  Statute  of  Fi-auds;  secondly,  that  the 
defendant's  declaration  that  he  had  bought  the  horse,  and  his  attempt 
to  resell  it,  Avas  evidence  that  the  sale  and  deliveiy  were  complete, 
and  entitled  the  plaintiff  to  recover.  Wood,  B.,  reserved  the  points, 
subject  whereto  the  jury  found  a  verdict  for  the  plaintiff. 

Ilullock,  Serjt.,  in  Easter  term  had  obtained  a  rule  7iisi  to  set  aside 
this  verdict  and  enter  a  nonsuit,  against  which 

Copier/,  Serjt.,  now  shewed  cause.  He  contended,  first,  that  the 
act  called  the  striking  off  the  bargain,  Avhich  was  a  term  well  under- 
stood in  the  north  of  England,  was  such  a  part  payment  as  complied 
with  the  Statute  of  Frauds.  It  was  not  invalidated  by  the  money 
being  instantly  returned  to  the  seller  with  the  consent  of  the  buyer. 


J18  HOWE   V.    PALMER.  [CHAP.    I. 

[But  the  whole  court  denied  that  there  was  ever  any  payment  or 
transfer  of  the  shilling,  even  for  a  moment.]  Next,  if  a  purchaser 
treats  the  property  as  his  own,  that  proves  a  sufficient  delivery,  as  was 
held  by  Lord  Kenyon,  C.  J.,  in  the  case  of  the  sale  of  a  stack  of  hay 
(Chaphn  W.Rogers ^)  wherein  the  defendant  had  resold  a  part  of  it, 
though  he  afterwards  refused  to  permit  the  second  purchaser  to  take 
it.  In  Elmore  v.  Stone  ^  there  was  no  actual  delivery.  The  defend- 
ant cannot  resort  to  the  Statute  of  Frauds,  after  he  has  by  his  own 
act  acknowledged  the  purchase.     Searle  v.  Keeves.^ 

Hulloch^  in  support  of  his  rule,  denied  that  there  was  in  this  case  any 
part  payment  or  any  constructive  delivery. 

Gibes,  C.  J.,  inteii^osing,  relieved  him.  The  court  do  not  go  all  the 
way  with  the  defendant  on  all  his  points;. but  the  court  is  embar- 
rassed by  obser\'ing  that  it  was  not  left  to  the  jury  to  find  whether  there 
was  any  delivery  or  not;  and  on  the  first  trial  of  the  case  of  Chaplin 
V.  Rogers  the  jury  fotmd  there  was  an  acceptance  of  the  hay,  and  on 
the  second  trial  they  found  that  it  had  been  delivered ;  and  we  are  far 
from  saying  that  we  do  not  coincide  with  the  learned  Baron  who  tried 
the  cause  in  his  direction,  but  we  think  it  ought  to  be  left  to  the  jury 
to  find  whether  this  was  or  was  not  a  delivery ;  therefore  there  must 
be  a  new  trial.  This  is  very  difierent  from'  the  case  of  the  haystack, 
for  there  nothing  more  could  be  done  to  confer  a  possession. 

Dallas,  J.  The  only  question  here  is,  whether  something  else  re- 
mained to  be  done ;  upon  that  point  I  have  an  opinion,  but  it  is  unnec- 
essary here  to  disclose  it,  and  I  carefully  abstain  from  statmg  what 
it  is. 

The  court,  altering  the  form  of  the  rule,  made  it  absolute  for  a  new 
trial.* 


\ 


„ HOWE  V.  PALMER. 

^N  THE  King's  Bench,  January  24,  1820. 

[Reported  in  3  Barnewall  Sf  Alderson,  321.] 

V  Declaration  stated  that  defendant  bargained  for  and  bought  of  the 
plaintifi",  and  that  plaintifi"  sold  to  defendant  twelve  bushels  of  winter 

1  1  East,  192.  2  1  Taunt.  458.  3  2  Esp.  N.  P.  Cas.  598. 

*  In  Blackburn  on  Sale,  p.  33,  after  citing  several  of  the  preceding  cases,  the  author 
says  :  "  In  all  these  cases  there  seems  to  have  been  ample  evidence  of  an  acceptance 
of  the  goods,  but  scanty  evidence  of  any  actual  receipt,  if  by  that  is  to  be  understood 
a^  taking  of  possession ;  indeed  in  Blenkinsop  v.  Clayton,  as  reported,  there  seems  to 
have  been  none.  After  the  decision  of  that  last  case,  the  current  of  authority  set  the 
other  way."  —  Ed. 


SECT.    IV.]  HOWE    V.    PALMER.  119 

tares  at  the  price  of  £1  per  bushel,  to  be  delivered  by  plaintiff  to  the 
defendant  within  a  reasonable  time,  and  to  be  paid  for  on  delivery ; 
and  in  consideration  thereof,  and  that  plaintift'  had  jironiised  to  de- 
liver the  same,  defendant  promised  to  accept  the  same,  &c.  Breach,  that 
defendant  would  not  accept.  Plea,  general  issue.  At  the  trial  before 
Garrow,  B.,  at  the  last  assizes  for  the  county  of  Essex,  it  appeared 
that  plaintiff,  the  grower  of  the  tares,  resided  at  Pergo  in  Essex,  and 
that  in  August,  1818,  he  sent  his  nephew,  who  managed  his  farm,  to 
Romford  market  with  a  sample.  The  defendant  there  verbally  agreed 
to  buy  twelve  bushels  at  £1  per  bushel,  and  to  send  to  the  plaintiff's 
farm  at  Pei'go  to  fetch  them  away.  The  bam])le  was  offered  him,  but  he 
declined  taking  it,  saying  that  he  had  seen  the  tares  on  plaintiff's 
premises,  and  that  he  had  no  immediate  use  for  them,  and  therefore 
requested  th:it  they  might  remain  there  until  he  wanted  to  sow  them, 
W'hich  was  agreed  to.  The  plaintiff's  nephew,  on  his  return  from 
Romford,  measured  out  the  twelve  bushels  and  set  them  apart  in  the 
plaintiff's  granary,  and  orders  were  given  that  they  should  be  de- 
livered to  defendant  when  he  should  call  for  them.  It  was  objected 
at  the  trial  that,  there  being  no  note  or  memorandum  in  writing, 
this  contract  was  void  by  the  Statute  of  Frauds.  The  learned  judge 
reserved  the  point,  and  the  plaintiff  had  a  verdict  with  liberty  to  the 
defendant  to  move  to  enter  a  nonsuit.  A  rule  nisi  having  been  ob- 
tained  for  that  purpose  in  last  Michaelmas  term, 

Marryat  and  Walford  now  shewed  cause.  There  was  a  sufficient 
delivery  to  take  this  case  out  of  the  Statute  of  Frauds.  By  the  ex- 
press terms  of  the  contract  the  tares  were  to  remain  in  the  possession 
of  the  seller  till  the  buyer  sent  for  them,  and  they  were  sej^arated 
fi'om  the  bulk  and  measured  out  immediately  after  the  sale  by  the 
nephcAV  of  the  plaintiff.  Inasmuch  as  the  defendant  had  seen  the  tarea 
in  bulk,  and  had  bought  only  twelve  bushels,  and  directed  that  they 
should  remain  in  the  plaintiff's  possession  till  called  for,  he  must  be 
taken  to  have  given  an  implied  authority  to  the  plaintiff's  nephew  as 
his  agent  to  measure  out  the  quantity ;  and  that  act  of  measuring 
must  be  considered  as  an  act  done  by  the  buyer,  and  consequently  as 
an  acceptance  on  his  part.  There  was  therefore  a  constructive  de- 
livery, and  the  only  delivery  that  could  be  made  by  the  seller  consist- 
ently with  the  terms  of  his  contract.  In  Elmore  v.  Stone  ^  the  pur- 
chaser of  a  horse  from  a  horse-dealer  desired  him  to  keep  the  horse  at 
livery  for  him,  and  the  horse-dealer  removed  the  horse  from  his  sale 
stable  to  another,  and  that  was  holden  a  sufticient  delivery  to  take  the 
case  out  of  the  statute;  and  Heath,  J.,  then  stated  that  if  goods  or- 
dered at  a  shop  to  be  left  till  called  for  are  weighed  out  or  measured, 
that  is  a  sufhcicnt  delivery.  In  Chaplin  v.  Rogers,-  which  was  a  sale 
of  a  stack  of  hay  on  the  spot  where  the  stack  stood,  there  was  no 
1  1  Taunt.  458.  a  i  East,  192. 


120  HOWE    V.    PALMER.  [CHAP.    I. 

actual  delivery,  but  the  fact  of  the  vendee  having  sold  part  of  it  to 
another,  by  whom,  though  against  the  vendee's  approbation,  it  was 
taken  away,  was  held  sufficient  to  Avarrant  the  jury  in  finding  a  de- 
livery to  and  acceptance  by  the  vendee. 

Laices,  Serjt.,  contra,  was  stopped  by  the  court. 

Abbott,  C.  J.  The  Statute  of  Frauds  is  one  of  the  most  important 
and  beneficial  statutes  to  be  found  in  the  books.  One  of  its  objects 
was  to  require  written  testimony  or  memorials  of  contracts,  such  as 
are  reqixired  by  the  laws  of  most  countries.  The  words  of  the  17th 
section  are  these  [stating  them].  Now  in  this  case  there  has  been  no 
note  in  writing  of  the  contract,  and  there  has  been  nothing  given  in 
earnest  or  in  part  payment.  Unless  therefore  the  buyer  has  accepted 
and  received  part  of  the  goods  so  sold,  this  case  is  within  the  statute, 
and  no  action  can  be  brought  on  the  verbal  contract  entered  into 
between  the  parties.  Then  the  question  is.  Has  the  buyer  accepted? 
Now,  if  he  had  once  accei^ted,  he  could  not  afterwards  make  any  ob- 
jection, even  if  it  turned  out  that  the  tares  did  not  correspond  with 
the  sample.  But  it  is  clear  that  he  had  a  right  to  make  any  objection 
at  the  time  when  they  were  tendered  to  him  for  acceptance.  If  the 
defendant  in  this  case  had  gone  to  the  plaintiff's  granary  to  demand 
the  tares,  and  upon  inspection  had  discovered  that  they  did  not  cor- 
respond with  the  samj^le,  it  is  impossible  to  say  that  he  might  not  then 
have  made  the  objection.  And  if  so,  it  is  clear  that  there  was  no  pre- 
vious acceptance  on  his  part.  I  therefore  think  that  this  case  comes 
within  the  very  words  of  this  statute,  to  which  we  ought  to  give  full 
effect,  and  not  to  sufier  its  beneficial  provisions  to  be  evaded  by  subtle 
distinctions. 

Batley,  J.  I  am  of  the  same  opinion.  I  think  the  safest  rule  to 
follow  is  to  adhere  closely  to  the  Avords  of  the  statute.  The  two  cases 
cited  are  distinguishable  from  this ;  for  in  Chaplin  v.  Rogers  the  jury 
thousfht  that  there  was  sufficient  evidence  to  draw  the  conclusion  of  an 
actual  acceptance,  inasmuch  as  the  vendee  had  dealt  with  the  hay  as 
his  own.  In  Elmore  v.  Stone  the  buyer  directed  expense  to  be  in- 
cuiTcd ;  and  the  directing  of  that  expense  was  considered  evidence  of 
an  acceptance  on  his  part.  That  case  goes  as  far  as  any  case  ought  to 
go,  and  I  think  we  ought  not  to  go  one  step  beyond  it.  There  is  a 
distinction  between  that  case  and  this,  that  there  an  expense  was 
incuiTed  on  account  and  by  the  direction  of  the  buyer ;  here  there  is 
none.  But  I  must  say,  however,  that  I  doubt  the  authority  of  that 
decision.  This  case  is  clearly  Avithin  the  statute,  and  the  rule  must  be 
made  absolute. 

HoLROYD,  J,  I  am  of  the  same  oiDinion.  In  this  case  there  has  been 
no  actual  receipt  of  any  part  of  the  goods  sold  within  the  usual  mean- 
ing of  the  term,  and  I  think  what  has  been  done  ouglit  not  to  be  con- 
sidered in  point  of  law  as  an  acceptance.     For  supposing  that  it  was 


SECT.    IV.]  TEMPEST   V.    FITZGERALD.  121 

made  part  of  the  contract  in  tins  case  that  the  seller  should  set  apart 
and  measure  the  thing  sold ;  that  would  not  make  the  act  of  measuring 
amount  to  a  virtual  acceptance  or  receipt  of  the  goods  by  the  buyer. 
For  if  they  were  measured  by  the  seller  only,  that  would  not  prevent 
the  buyer  when  he  inspected  them  from  objecting  cither  to  the  quan- 
tum  or  quality  of  the  goods.  And  unless  it  would  amount  to  that,  it 
does  not  appear  to  me  to  be  an  actual  acceptance  or  receipt  of  the 
goods.  And  supposing  it  not  to  be  part  of  the  contract,  but  that 
directions  were  given  at  the  time  by  the  buyer  to  the  seller's  agent  to 
measure  the  goods  for  him,  that  would  not  make  him  the  agent  of  the 
buyer  so  far  as  to  make  that  act  amount  to  an  acceptance  on  his  ])art. 
For  an  authority  to  measure  the  goods  would  UDt  give  him  authority 
as  agent  to  accept.  The  buyer  might  afterwards  object  that  the 
articles  did  not  correspond  with  the  terms  of  the  contract.  The  case 
differs  frx)m  that  of  Elmore  v.  Stone  ;  for  there  it  was  agreed  between' 
the  parties  that  the  horse  should  be  transferred  from  the  sale  to  the 
livery  stable,  and  an  expense  was  incurred  by  the  purchaser  for  the 
keep,  which  could  not  be  \inless  the  horse  Avas  supposed  to  have  come 
into  his  possession.  I  think  therefore  that,  as  there  was  no  accept- 
ance by  the  buyer,  this  case  falls  within  the  words  of  the  statute,  and 
that  the  rule  must  be  made  absolute. 

Best,  J.  I  am  of  the  same  opinion.  So  for  from  being  disposed  to 
restrain  the  provisions  of  this  statute,  I  should  be  inclined  to  extend 
them.  In  this  case  I  think  that  the  plaintiff  is  prevented  from  recov- 
ering, both  by  the  spirit  and  the  very  letter  of  the  act.  The  spirit  I 
take  to  be  this,  that  a  contract  shall  not  be  binding  unless  there  be 
some  act  done  which  directly  shews  an  acceptance  on  his  part.  Now 
there  is  no  such  act  done  in  the  present  case  ;  and  I  think  in  all  cases 
it  is  better  to  adhere  to  the  words  of  the  statute,  unless  Ave  plainly  see 
that  the  words  used  do  not  express  the  meaning  of  the  Legislature. 
Here  it  appears  to  me  that  they  do  plainly  express  the  meaning  of  the 
Legislature,  and  that  this  case  is  Avithin  the  very  Avords  of  the  statute. 
The  rule  therefore  must  be  made  absolute. 

Bide  absolute  for  entering  a  nonsuit. 


TEMPEST   V.  FITZGERALD. 
In  tue  King's  Bench,  June  12,  1820. 

{Reported  in  3  Barnewall  &.  Alderson,  680.] 

Assumpsit  for  the  price  of  a  horse.    Declaration  contained  counts 
for  horses  sold  and  delivered,  bargained  and  sold,  etc.     Plea,  general 


122  TEMPEST   V.    FITZGERALD.  [CHAP.    I. 

issue.     At  the  trial  before  Park,  J.,  at  the  last  assizes  for  the  county 
of  Lancaster,  the  following  facts  were  proved:  In  August,  1817,  the 
defendant,  tlien  on  a  visit  at  the  plaintiff's  house,  agreed  to  purchase  a 
horse  from  him  at  the  price  of  forty-five  guineas,  and  to  fetch  it  away 
about  the  22d  September  as  he  went  to  Doncaster  races.     The  parties 
understood  it  to  be  a  ready-money  bargain.     The  defendant  said  he 
wanted  it  for  hunting,  and  the  plaintiff  proposed  to  put  it  in  a  course 
of  physic  during  his  absence.     The  defendant  soon  after  quitted  the 
plaintiff's   house,  and  returned    on  the  20th   September.      He  then 
ordered  the  horse  to  be  taken  out  of  the  stable ;  he  and  his  servant 
mounted,  galloped,  and  leaped  the  horse,  and  after  they  had  done  so 
his  servant  cleaned  him,  and  the  defendant  himself  gave  directions 
that  a  roller  should  be  taken  off  and  a  fresh  one  put  on,  and  that  a 
strap  should  be  put  upon  his  neck,  which  was  consequently  done ;  he 
then  asked  the  plaintiff's  son  if  he  would  keep  it  for  another  week ;  he 
said  that  he  w^ould  do  it  to  oblige  him.     The  defendant  then  said  that 
he  would  call  and  pay  for  the  horse  when  he  returned  from  the  Don- 
caster  races,  about  the  26th  or  27th  September.     He  told  plaintiff's 
groom  that  the  horse  ought  to  be  galloped  more,  and  that  it  was  not 
then  in  a  condition  for  hunting.     The  defendant  returned  on  the  27th 
with  the  intention  to  take  it  away,  but  the  horse  having  died  on  the 
26th  September  he  refused  to  pay  the  price.     Upon  these  facts  it  was 
contended  by  the  defendant's  counsel  that  there  had  been  no  accept- 
ance of  the  horse  by  him,  so  as  to  take  the  case  out  of  the  Statute  of 
Frauds.     The  learned  judge  was  of  opinion  that  if  the  acts  done  by 
the  defendant  on  the  20th  September  were  to  be  considered  as  acts  of 
ownership,  that  there  was  a  sufficient  acceptance  ;  and  he  left  it  to  the 
jury  to  say  whether  the  riding  of  the  horse  on  that  day  was  by  way  of 
trial,  or  whether  the  defendant  was  then  exercishig  an  act  of  owner- 
ship ;  and  whether  the  directions  then  given  were  by  way  of  advice  or 
as  owner.     If  they  thought  that  he  was  then  exercising  acts  of  owner- 
ship, then  they  were  to  find  for  the  plaintiff;  if  otherwise,  for  the 
defendant.     The  jury  found  a  verdict  for  the  plaintiff.     A  rvile  nisi 
having  been  obtained  for  a  new  trial  in  last  Easter  term, 

Scarlett  and  Ifolt  now  shewed  cause.  The  question  was  properly 
left  to  the  jury,  whether  on  the  20th  September  the  defendant  had  not 
exercised  acts  of  ownership  upon  the  horse.  The  jury  have  found 
that  he  had;  and  that  being  so,  there  was  clearly  an  acceptance  of  the 
horse  within  the  meaning  of  the  Statute  of  Frauds.  In  Blenkinsop  v. 
Clayton,^  a  case  similarly  circumstanced,  the  Court  of  Common  Pleas 
thought  it  a  question  for  the  jury  to  determme  whether  the  act  done 
by  the  purchaser  was  an  act  of  ownei-ship  or  not.  Chaplin  v.  Rogers  ^ 
is  an  authority  to  the  same  effect.  The  object  of  the  Legislature  in 
the  Statute  of  Frauds  was  that  there  should  be  some  act  done  by 
1  7  Taunt.  597,  1  B.  Moore,  328.  2  i  East,  192. 


SECT.    IV.]  TEMPEST   V.    FITZGERALD.  123 

the  party  beyond  the  mere  contract,  to  make  it  binding.  Here  such 
acts  have  been  done  by  the  vendee  with  respect  to  the  property 
purchased,  and  admitting  them  to  be  equivocal  in  their  nature  still 
the  jury  have  found  by  their  verdict  that  they  were  acts  of  owner- 
ship; and  that  being  so,  there  can  be  no  doubt  that  there  was  an 
acceptance  of  tlie  property  by  the  defendant  within  the  meaning  of 
the  Statute  of  Frauds. 

Cross,  Serjt.,  and  Milner,  contra.  The  intent  and  meaning  of  the 
statute  was,  that  there  should  be  certain  fonns  used  in  order  to 
make  a  contract  binding,  or  that  there  should  be  some  clear'  unequiv- 
ocal act  done  by  the  vendee  to  shew  that  he  had  adopted  the  con- 
tract. In  this  case  the  acts  relied  upon  were  at  least  equivocal. 
This  also  was  a  ready-money  bargain,  and  the  defendant  could  have 
no  right  to  take  away  the  horse  until  he  paid  the  money.  They 
■were  then  stopped  by  the  court. 

Abeott,  C.  J.  The  Statute  of  Frauds  was  made  for  wise  and  bene- 
ficial purposes,  and  ought  to  receive  such  a  construction  as  will  best 
accord  with  the  plain  and  obvious  meaning  of  the  Legislature.  By 
the  17th  section  it  is  enacted  [quoting  the  section].  Now  in  tliis 
case  there  was  not  any  earnest  given,  or  any  part  payment,  or  any 
note  or  memorandum  in  writing.  The  question  therefore  is,  whether 
the  buyer  had  accepted  part  of  the  goods  sold  and  actually  received 
the  same.  Now  the  word  "  accepted  "  imports  not  merely  that  there 
should  be  a  delivery  by  the  seller,  but  that  each  party  should  do 
something  by  which  the  bargain  should  be  bound.  I  do  not  mean, 
however,  to  say  that  if  the  buyer  were  to  take  away  the  goods  with, 
out  the  assent  of  the  seller,  that  would  not  be  sufficient  to  bind  him.^ 
In  this  case  payment  of  the  price  was  to  be  an  act  concuncnt  witli  the 
delivery  of  the  horse ;  at  any  rate  there  is  nothing  to  shew  that  either 
party  understood  that  the  one  was  to  precede  the  other.  In  the  first 
instance  therefore  this  was  a  mere  contract  between  the  parties.  It 
is  urged,  hoAvever,  that  there  was  evidence  for  the  jury  to  find  that 
the  defendant  had  exercised  acts  of  OAvnership  as  to  the  horse  on  the 
20th  September.  It  appears  from  the  learned  judge's  report  that  on 
that  day  he  came  to  the  plaintift''s  house,  that  he  and  his  servant  then 
rode  the  horse,  and  that  he  gave  some  directions  as  to  its  future  treat- 
ment, and  it  is  ui-ged  that  these  acts  might  be  considered  acts  of 
ownership.  I  am  of  opinion,  however,  that  the  defendant  had  no  right 
of  property  in  the  horse  until  the  price  was  paid ;  lie  could  not  then 
exercise  any  right  of  ownership.  If  he  had  at  that  time  rode  away 
with  the  horse  the  plaintiff  might  have  maintained  trover.  The  dis- 
tinction between  this  case  and  that  of  Blenkinsop  v.  Clayton  is,  that 
there  the  contract  was  not  for  ready  money,  but  the  horse  was  to 
be  delivered  within  an  hour,  and  the  defendant  treated  it  as  his  own 
1  But  see  Baker  v.  Cuyler,  12  Barb.  667.  —  Ed. 


124  TEMPEST   V.    FITZGERALD.  [CHAP.   I. 

by  offering  it  for  sale ;  here  the  express  contract  is  for  ready  money, 
and  the  payment  of  the  price  is  an  act  concm-rent  with  the  delivery  of 
the  horse.  I  think  therefore  that  the  rule  for  a  new  trial  must  be 
made  absolute. 

Bayley,  J.  This  was  a  ready-money  bargain,  and  the  purchaser 
could  have  no  right  to  take  away  the  horse  until  he  had  paid  the  price. 
If  the  argument  on  the  part  of  the  plaintiff  were  to  prevail,  the 
defendant  might  have  maintained  an  action  for  the  horse  without 
paying  the  price,  which  would  be  contrary  to  the  express  terms  of  the 
contract. 

HoLROYD,  J.  The  object  of  the  Statute  of  Frauds  was  to  remove 
all  doubts  as  to  the  completion  of  the  bargain,  and  it  therefore 
requires  some  clear  and  unequivocal  acts  to  be  done  in  order  to  shew 
that  the  thing  had  ceased  to  be  injieri.  Those  acts  are  either  that  the 
buyer  shall  accept  part  of  the  goods  sold  and  receive  the  same,  or 
give  something  in  earnest  or  in  part  payment,  or  that  the  contract  be 
reduced  to  waiting.  These  are  all  acts  that  clearly  and  unequivocally 
shew  that  the  bargain  is  executed.  It  is  said  that  the  riding  of  the 
horse  by  the  defendant  on  the  20th  September,  and  the  directions  then 
given,  may  be  considered  as  acts  of  ownership,  and  were  therefore 
evidence  of  an  acceptance  of  the  horse ;  but  at  that  time  the  defendant 
had  no  right  to  take  away  the  horse.  For  admitting,  for  the  sake  of 
the  argument,  that  the  property  had  been  changed,  still  there  is  no 
evidence  to  shew  that  Tempest  had  ever  parted  with  the  possession  or 
control ;  and  if  he  had  not,  he  had  at  all  events  a  lien  for  the  price,  and 
the  defendant  could  not  be  justified  in  taking  it  away  until  the  price 
were  paid.  In  Blenkinsop  v.  Clayton  the  horse  was  to  be  delivered 
absolutely  within  an  hour,  and  the  purchaser  had  treated  it  as  his 
own  property  by  offering  to  sell  it  to  another;  here,  on  the  other 
hand,  the  horse  was  not  to  be  delivered  till  the  price  was  paid. 

Best,  J.  I  think  that,  to  take  the  case  out  of  the  Statute  of 
Frauds,  there  should  be  some  act  so  clear  and  unequivocal  as  to  shew 
beyond  all  doubt  tliat  the  purchaser  had  accepted  the  horse.  There 
is  here  no  act  of  that  description.  This  was  a  ready-money  bargain, 
and  the  defendant  would  therefore  acquire  no  property  in  the  horse 
until  he  paid  the  price.  The  acts  therefore  done  by  him  on  the  20th 
September  could  not  be  acts  of  ownership,  for  at  that  time  he  had 
acquired  no  right  to  exercise  any  act  of  ownership. 

Hule  absolute. 


SECT.    IV.]  HANSON   V.    ARMITAGE.  125 

HANSON   AND   Another  v.  ARMITAGE. 
In  the  King's  Bench,  Hilary  Term,  1822. 

[Reported  in  5  Barnewall  if  Alderson,  557.] 

Assumpsit  for  the  price  of  two  chests  of  tea.     Plea,  general  issue. 
At  the  trial  before  Abbott,  C.  J.,  at  the  Middlesex  sittings  after  Hilary- 
term,  1821,  the  following  appeared  to  be  the  facts  of  the  case:  The 
jDlaintiffs,  Avho  were  wholesale  tea-dealers  in  London,  had  been  in  the 
habit  of  shipping  teas  to  the  defendant,  who  was  a  grocer,  resident  at 
Barnsley  in  Yorkshire.    The  usual  course  was  to  deliver  the  tea  at  the 
wharf  of  one  Staunton  in  London,  to  be  forwarded  by  the  first  ship ; 
and  several  jiarcels  of  tea  sent  in  this  manner  had  been  j^aid  for  by  the 
defendant.     On  the  3d  of  June,  1820,  the  plaintiffs  delivered  at  Staun- 
ton's wharf  two  chests  of  tea,  to  be  forwarded  to  the  defendant  in  the 
usual  manner.    The  vessel  in  Avhich  this  tea  was  shipped  was  lost  on  her 
voyage.    The  plaintiffs  on  the  10th  of  June  transmitted  by  post  to  the 
defendant  an  invoice  of  the  tea,  and  on  the  13th  the  defendant  returned 
the  same  by  post,  and  stated  "  that  he  had  nothing  to  do  with  it,  as  he 
had  heard  of  the  loss  of  the  ship  before  the  invoice  arrived,  and  that 
he  would  not  take  to  the  account."     There  was  no  other  evidence  of 
any  order  having  been  given  to  the  plaintiffs  for  the  tea  in  question. 
Upon  these  facts  the  Lord  Chief  Justice  directed  the  jury  that  they 
might  fairly  presume  that  the  defendant  had  given  a  parol  order  for  the 
tea,  and  stated  that  he  would  reserve  the  question  for  the  opinion  of 
the  court,  whether  the  delivery  of  the  tea,  and  the  accei^tance  of  it  by 
the  wharfinger  for  the  purpose  of  transmitting  it  by  the  usual  convey- 
ance, was  to  be  deemed  an  acceptance  by  the  buyer  within  the  mean- 
ing of  the  29  Car.  2,  c.  3,  §  17.    The  jury  having  found  n  verdict  for  the 
plaintiffs,  a  rule  nisi  was  obtained  in  last  Easter  term  for  entering  a 
nonsuit,  against  which 

Scarlett  and  Littledale  now  shewed  cause.  The  acceptance  of  the  tea 
by  the  wharfinger  was  a  suflicient  acceptance  by  the  buyer  to  satisfy 
the  29  Car.  2,  c.  3,  §  17.  Staunton  was  the  agent  of  the  defendant;  for 
the  jury  having  found  that  there  Avas  an  order  for  these  goods,  it  must 
be  taken  that  there  was  an  order  to  send  them  by  the  usual  mode  of 
conveyance.  The  acceptance  therefore  by  Staunton  was  an  acceptance 
by  the  defendant.  This  case  is  distinguishable  from  Astey  v.  Emery ;  ^ 
for  there  the  seller  undertook  the  risk  of  conveying  the  goods  to  the 
purchaser. 

Gurney  and  Chitty^  contra.  The  statute  29  Car.  2,  c.  3,  §  17,  enacts 
"  that  no  contract  for  the  sale  of  goods  for  the  price  of  £10  shall  bo 

1  4  Maule  &  S.  262. 


126  CARTER   V.    TOUSSAINT.  [CHAP.   I. 

binding,  except  the  buyer  shall  accept  part  of  the  goods  so  sold  and 
actually  receive  the  same."  Here  there  has  been  no  acceptance  by  the 
buyer,  but  by  a  person  who  was  an  agent  only  for  the  purpose  of  ship- 
ping the  goods,  and  which  agent  had  no  opportunity  of  objecting  to  the 
quality.  To  make  it  a  sufficient  acceptance  by  the  buyer  within  the 
statute,  the  latter  ought  to  have  had  an  opportunity  of  objecting  to 
the  quality  of  the  goods.  Kent  v.  Huskinson  ^  and  Howe  v.  Palmer.^  In 
Astey  V.  Emery  the  goods  were  actually  shijjped  on  board  a  vessel 
named  by  the  buyer,  and  yet  that  was  held  not  to  be  a  sufficient  accept- 
ance.    They  also  cited  Dawes  v.  Peck.^  Ctir.  ado.  vult. 

Abbott,  C.  J.,  in  the  course  of  the  term  delivered  the  judgment  of 
the  court ;  and  after  stating  the  point  reserved  for  their  consideration, 
viz.,  whether  there  had  been  a  sufficient  acceptance  of  the  goods  to 
take  the  case  out  of  the  Statute  of  Frauds,  added  that  the  court  were 
of  opinion  that  the  acceptance  in  this  case,  not  being  by  the  party  him- 
self, was  not  sufficient ;  and  he  referred  to  the  case  of  Howe  v.  Palmer, 
where  it  was  held  that  there  could  be  no  actual  acceptance  so  long  as 
the  buyer  continued  to  have  a  right  to  object  either  to  the  quantum  or 
quality  of  the  goods.  Rule  absolute  for  a  nonsuit. 


CARTER  AND  Another  v.   TOUSSAINT. 
In  the  King's  Bench,  June  14,  1822. 

[Reported  in  5  Barnewall  Sf  Alderson,  855.]  . 

Assumpsit  for  the  price  of  a  horse,  with  the  usual  money  counts. 
Plea,  general  issue.  At  the  trial  at  the  Middlesex  sittings  after  last 
Hilary  term,  before  Abbott,  C.  J.,  it  appeared  that  the  plaintiffs,  who 
were  farriers,  sold  to  the  defendant  a  race-horse  by  a  verbid  contract 
for  £30.  The  horse  at  the  time  of  the  sale  required  to  be  fired,  which 
was  done  with  the  approbation  of  the  defendant  and  in  his  presence ; 
and  it  was  agreed  that  the  horse  should  be  kept  by  the  plaintiffs  for 
twenty  days  without  any  charge  made  for  it.  At  the  expiration  of  the 
twenty  days  the  horse  was,  by  the  defendant's  directions,  taken  by  a 
servant  of  the  plaintiffs  to  Kimpton  Park,  for  the  purpose  of  being 
turned  out  to  grass  there.  It  was  there  entered  in  the  name  of  one  of 
the  plaintiffs,  which  was  also  done  by  the  direction  of  the  defendant, 
who  was  anxious  that  it  might  not  be  known  that  he  kept  a  race-horse. 
No  time  was  specified  in  the  bargain  for  the  payment  of  the  price.  The 
1  3  Bos.  &  r.  233.  2  3  Barn.  &  A.  321.  3  8  T.  R.  330. 


SECT.    IV.]  CARTER  V.   TOUSSAINT.  127 

defendant  afterwards  refused  to  take  the  liorse.  The  jury,  under  the 
du'ection  of  the  Lord  Chief  Justice,  found  a  verdict  for  tlie  plaintiffs. 
Scarlett  in  hast  Easter  term  obtained  a  rule  nisi  for  entering  a  nonsuit 
on  the  ground  reserved  at  the  trial,  that  there  was  not  a  sufficient 
acceptance  by  the  defendant  to  take  the  case  out  of  tlio  17th  section  of 
the  Statute  of  Frauds. 

3farri/at  and  Ilawldns  shewed  cause.  The  case  is  not  within  the 
17th  section  of  the  Statute  of  Frauds ;  for  here  there  was  a  complete 
delivery  and  acceptance  by  the  defendant.  If  a  buyer  orders  goods  to 
be  sent  to  a  particular  wharf,  and  they  are  there  delivered,  the  accept- 
ance by  the  wharfinger  is  clearly  sufficient  to  take  the  case  out  of  the 
statute.  Here,  by  the  defendant's  order,  the  horse  Avas  sent  to  Kimp^ 
ton  Park.  And  this  is  therefore  a  stronger  case  of  acceptance  than 
Elmore  v.  Stone,^  where  the  removal  was  from  one  stable  to  another. 
Hanson  v.  Armitage  ^  will  be  cited  on  the  other  side.  There,  however, 
there  was  no  s])ecial  direction  as  to  the  place  where  the  goods  were  to 
be  sent.  Besides,  that  case  is  at  variance  w^th  Hart  v.  Sattley,^  where 
Chambre,  J.,  held  that  the  master  of  the  ship  must  be  considered  as 
the  vendee's  agent  to  receive  the  goods  in  a  case  where  they  were 
shipped  according  to  the  usual  course  of  dealing  between  the  parties. 
But  it  is  said  that  the  horse  Avas  entered  at  Kimpton  Park  in  the  name 
of  one  of  the  plaintiffs.  That  however,  being  done  by  the  request  of 
the  defendant,  can  make  no  difference.  It  is  admitted  that  if  there  be 
an  acceptance,  though  but  for  a  minute,  it  is  sufficient.  Here  the 
delivery  of  the  horse  to  the  person  who  conveyed  him  from  the  plain- 
tiflf's  house  to  the  park  was  sufficient ;  for  that  person  must  be  con- 
sidered as  the  defendant's  servant.  Besides,  the  horse  was  fired  for  the 
use  of  the  defendant,  and  must  be  considered  as  having  remained  in 
the  hands  of  the  plaintiffs  for  the  purpose  of  cure ;  and  then  the  case 
falls  precisely  within  the  principle  of  Elmore  v.  Stone. 

Scarlett  and  Zawes,  contra.  If  this  question  were  now  for  the  first 
time  to  be  determined,  no  doubt  could  be  entertained  by  any  one  who 
looked  at  the  words  of  the  statute.  It  is  not  requisite  indeed  that,  to 
constitute  an  acceptance,  the  goods  should  be  in  the  manual  possession 
of  the  vendee.  But  he  must  at  least  have  the  complete  control  before 
he  can  be  considered  as  having  accepted  them.  If  the  key  of  the  ware- 
house where  they  are  deposited  is  delivered  to  him,  or  an  order  for 
delivery  to  him  is  signed  in  the  wharfinger's  books,  in  these  and  the 
like  instances  it  may  fairly  amount,  if  he  assents,  to  an  acceptance  on 
his  part.  For  there  he  on  the  one  hand  has  the  complete  control  with- 
out any  lien  on  the  part  of  the  vendors ;  and  on  the  other  hand  he 
cannot  after  that  be  allowed  to  object  to  their  quality,  &c.  But  if  that 
criterion  be  applied  to  this  case,  it  will  determine  it  in  favor  of  the 
defendant.  For  here  he  had  no  control  over  the  horse.  He  could  not 
1  1  Taunt.  458.  2  5  Barn.  &  Aid.  557.  '  3  Campb.  528. 


128  CARTER   V.   TOUSSAINT.  [CHAP.   I. 

have  compelled  the  park-keeper  to  have  delivered  it  to  him.  Here  too 
there  was  no  time  fixed  for  the  payment  of  the  price,  and  therefore  the 
vendors  would  not  have  been  bound  to  part  with  the  horse  till  the 
price  was  paid.  This  therefore  falls  within  the  cases  of  Hanson 
V,  Armitage  ^  and  Tempest  v.  Fitzgerald."  Elmore  v.  Stone  is  a  case 
of  doubtful  authority,  but  at  all  events  it  is  not  precisely  in  point  with 
this.  There  the  court  considered  the  vendor  as  having  by  his  own  act 
become  the  agent  of  the  vendee,  and  having  thereby  lost  his  lien  for 
the  price  of  the  horse.  But  here  the  party  has  not  lost  that  lien.  Sup- 
pose Carter  had  become  bankrupt,  it  is  clear  that  the  horse  would  have 
gone  to  his  assignees,  as  being  in  his  possession  at  the  time  of  the  bank- 
ruptcy. That  consequence  would  not  have  followed  in  Elmore  v.  Stone. 
Suppose  the  horse  had  been  damaged  in  going  to  the  park,  could  not 
the  defendant  have  objected  to  receive  him?  If  he  could,  then  accord- 
ing to  the  principle  laid  down  in  Howe  v.  Palmer  Hhere  is  no  sufficient 
acceptance.  As  to  the  firing,  it  was  not  done  specially  for  the  defend- 
ant, but  generally  for  any  one  to  whom  the  horse  might  afterwards  be 
sold.  This  case  therefore  falls  within  the  Statute  of  Frauds,  and  the 
defendant  is  entitled  to  the  judgment  of  the  court. 

Abbott,  C.  J.  In  this  case  it  appears  there  was  a  verbal  bargain  for 
the  horse  at  £30,  for  the  payment  of  which  no  time  was  fixed.  The 
seller  therefore  was  not  compellable  to  deliver  it  until  the  price  was 
paid.  In  Elmore  v.  Stone  there  was  a  contract  of  a  similar  descrip- 
tion, but  the  covirt  thought  that  the  circumstance  of  the  change  of  the 
stable  altered  the  character  in  which  the  plaintiff  there  held  possession 
of  the  horse.  For  the  plaintiff,  thereby  consenting  to  have  the  horse 
placed  in  the  livery-stable,  ceased  to  keep  possession  as  owner,  and  held 
it  only  in  his  capacity  of  livery-stable  keeper.  There  is  no  circum- 
stance of  that  description  in  the  present  case.  It  is  quite  clear  that 
the  present  plaintiffs  kept  possession  of  the  horse  as  owners  until  it 
was  sent  to  Kimpton  Park.  If  indeed  it  had  been  sent  there  and 
entered  in  the  defendant's  name  by  his  directions,  I  should  have 
thouo-ht  it  would  have  amounted  to  an  acceptance  by  him.  But  here 
it  was  entered  in  the  plaintiffs'  name,  and  the  plaintiffs'  character  of 
owner  remained  unchanged  from  first  to  last,  and  they  could  not  have 
been  compelled  to  deliver  it  without  the  payment  of  the  money. 
There  was  then  no  sufficient  acceptance  to  take  the  case  out  of  the 
Statute  of  Frauds ;  and  consequently  the  action  is  not  maintainable. 

Bayley,  J.  The  Statute  of  Frauds  is  a  remedial  law,  and  we  ought 
not  to  endeavor  to  strain  the  words  in  order  to  take  a  particular  case 
out  of  the  statute.  By  the  17th  section  it  is  provided  that,  in  the  case 
of  a  sale  of  goods  above  the  value  of  £10,  the  buyer  must  accept  and 
actually  receive  part  of  the  goods  so  sold.  There  can  be  no  acceptance 
or  actual  receipt  by  the  buyer,  unless  there  be  a  change  of  possession 
1  5  B.  &  A.  557.  2  3  B.  &  A.  680.  3  3  B.  &  A.  321. 


SECT.   IV.]  PRICE   V.   LEA.  129 

and  unless  the  seller  divests  himself  of  the  possession  of  the  goods, 
though  but  for  a  moment,  the  property  remains  in  him.  Here  the 
plaintiffs  had  a  lien  on  the  horse,  and  were  not  compellable  to  part 
with  the  possession  till  the  price  was  paid.  Then  the  question  is.  Was 
there  any  thing  to  deprive  them  of  that  right  ?  It  is  said  that  the 
horse  was  fired,  but  after  that  he  still  remained  in  their  possession. 
Then  he  was  sent  under  the  care  of  their  servant  to  Kimpton  Park, 
but  that  was  no  act  of  delivery  to  dispossess  them  of  the  horse.  At 
Kimpton  Park  he  was  entered  in  the  name  of  one  of  the  i)laintifFs,  and 
they  still  therefore  retained  a  control  over  him.  How  can  it  be  said 
that  the  horse  was  in  the  possession  of  the  defendant,  when  he  had  no 
right  to  compel  a  delivery  to  him.  For  he  could  not,  on  tendering  tlr^ 
keep,  maintain  trover  against  the  park-keeper,  because  the  possession 
had  not  passed  from  the  vendors  to  him.  The  case  of  Elmore  v.  Stone  , 
is  distinguishable.  There  the  original  owner  of  the  horse  had  stables 
in  which  he  kept  horses  as  owner,  and  others  where  he  kept  them  as 
Hvery-stable  keeper;  and  the  court  considered  that,  by  changing  the 
horse  from  the  one  to  the  other,  he  had  divested  himself  of  the  posses- 
sion and  given  up  his  lien.  But  there  is  no  circumstance  of  that 
sort  here. 

HoLROYD,  J.  I  am  of  the  same  opinion.  The  facts  here  stated  do 
not  amount  to  an  acceptance  or  actual  receipt  of  the  horse,  which  must 
be  considered  as  haNdng  continued  throughout  in  the  plaintifl"'s  posses- 
sion. The  case  would  be  different  if  the  horse  had  been  entered  at  the 
park  in  the  name  of  the  defendant,  but  being  entered  in  the  name  of 
one  of  the  plaintiffs  they  retained  a  control  over  it,  and  the  park- 
keeper  was  their  agent.  This  case  is  distinguishable  from  Elmore  v. 
Stone ;  there,  there  was  a  change  of  possession,  here  there  is  not. 

Hule  absolute. 


PRICE  AND   Others  v.  LEA. 
In  THE  King's  Bench,  January  27, 1823. 

[Reported  in  1  Barnewall  ^  Cresswell,  156.] 

Assumpsit  for  goods  sold  and  delivered  by  the  plaintiffs  to  the 
defendant.  Plea,  non  assumjjsU  as  to  part,  and  a  tender  as  to  the  res- 
idue. The  replication  took  issue  on  the  ti07i  assumpsit,  and  admitted 
the  tender.  On  the  trial  before  Abbott,  C.  J.,  at  the  Guildhall  sittings 
after  last  term,  it  was  proved  that  on  the  21st  March,  1821,  the  trav- 
eller of  the  plaintiffs,  who  are  drysalters  in  London,  called  upon  the 
defendant,  a  carpet  manufacturer  at  Kidderminster,  for  orders.     The 

VOL.   I.  9 


130  PRICE   V.   LEA.  [chap.   I. 

defendant  ordered  a  cask  of  cream  of  tartar,  and  offered  to  purchase 
two  chests  of  lac  dye  at  a  certain  j^iice ;  the  traveller  said  the  price 
proposed  was  beloAV  his  limits,  but  he  would  write  to  his  principals, 
and  if  the  defendant  did  not  receive  a  letter  in  one  or  two  days  refus- 
ing to  execute  the  order,  he  might  conclude  that  his  offer  was  accepted. 
The  plaintiffs  did  not  write  to  the  defendant,  but  on  the  29th  of  March 
sent  both  the  cream  of  tartar  and  the  lac  dye,  directed  to  him  at  Kid- 
derminster. The  defendant  accepted  the  cream  of  tartar,  and  tendered 
the  price  for  it  (which  was  the  tender  pleaded),  but  refused  the  lac  dye. 
Upon  this  evidence  it  was  contended  for  the  defendant  that  the  orders 
were  distinct,  and  consequently  the  acceptance  of  the  cream  of  tartar 
did  not  take  the  case  out  of  the  operation  of  the  17th  section  of  the 
Statute  of  Frauds.  The  Lord  Chief  Justice  thought  the  objection 
fatal,  and  nonsuited  the  plaintiffs.     And  now 

The  /Solicitor-  General  moved  to  set  aside  the  nonsuit,  and  contended 
that  the  order  given  by  the  defendant  was  a  joint  order  for  the  cream 
of  tartar  and  lac  dye ;  for  although  the  plaintiffs'  traveller  reserved  for 
them  an  option  either  to  accept  or  refuse  the  offer  made  by  the  defend- 
ant, still  the  latter  was  at  all  events  boimd  if  that  offer  was  accepted ; 
the  order  then  being  joint,  the  acceptance  of  the  cream  of  tartar  took 
the  case  out  of  the  17th  section  of  the  Statute  of  Frauds,  and  rendered 
the  defendant  liable  to  be  sued  for  the  price  of  the  lac  dye,  which  he 
refused  to  accept. 

Abbott,  C.  J.  It  must  be  taken  as  established  by  the  evidence  that 
an  order  was  given  for  the  cream  of  tartar ;  then  a  convei*sation  fol- 
lowed between  the  defendant  and  the  traveller  respecting  the  lac  dye, 
and  it  was  agreed  that  a  letter  should  be  written  to  the  plaintiffs  upon 
the  subject;  what  then  passed  cannot  be  considered  as  an  entire  con- 
tract for  both  articles,  and  therefore  the  acceptance  of  one  did  not 
ratify  the  bargain  for  the  other. 

HoLKOYD,  J.^  A  contract  for  the  cream  of  tartar  was  made  between 
the  defendant  and  the  traveller,  but  the  agreement  for  the  residue  can- 
not be  considered  as  complete  until  the  time  allowed  to  the  plaintiffs 
for  deliberation  had  expired ;  there  was  not  then  one  entire  contract 
for  both  the  articles,  so  as  to  make  the  acceptance  of  one  the  accept- 
ance of  the  whole. 

Best,  J.,  concurred.  Hule  refused. 

1  Bayley,  J.,  had  left  the  court. 


SECT.   IV.]  THOMPSON   V.    MACERONI.  131 

NICIIOLLE  V.  PLU^IE. 
At  Nisi  Prius,  coram  Best,  C.  J.,  May  8,  1824. 

[Reported  in  1  Carrington  Sf-  Payne,  272.] 

This  was  an  action  for  the  price  of  a  quantity  of  cider  supplied  by 
the  plaintiflf  on  the  verbal  order  of  the  defendant. 

A  witness  proved  his  being  present  at  the  defendant's  when  the  bar- 
gain was  made,  and  that  the  cider  was  good  cider  for  the  price.  It 
was  sent  by  the  wagon  to  the  defendant,  who  refused  to  take  it  in, 
but  caused  it  to  be  lodged  in  a  warehouse  near  his  premises  but  not 
belono-inor  to  him.  It  was  not  returned  to  the  plaintiff,  nor  did  the 
defendant  send  any  notice  to  the  plaintiff  of  his  intention  not  to  use 
the  cider. 

Taddy,  for  the  defendant,  submitted  that  the  plaintiff  must  be  non- 
suited, there  being  no  acceptance,  and  no  contract  in  writing  to  take 
the  case  out  of  the  Statute  of  Frauds. 

Vaughan  and  Pell^  for  the  plaintiff,  contended  that,  as  the  defendant 
had  contracted  for  the  cider,  and  it  was  in  consequence  forwarded  to 
him  by  the  wagon,  that  was  sufficient ;  and  particularly  as  he  did  not 
send  notice  to  the  plaintiff  of  his  refusal  to  accept  it. 

Best,  C.  J.  There  must  be  an  unequivocal  acceptance.  The  Court 
of  King's  Bench  have  so  determined  in  the  case  of  Hanson  v.  Armi- 
tage,  1  Dow.  &  Ry.  128.  Nonsuit. 


THOjNIPSON  v.  MACERONI. 

In  the  King's  Bench,  June  18,  1824. 

[Reported  in  3  Bamewcdl  ^  Cresswell,  1.] 

The  defendant  had  been  held  to  bail  upon  an  affidavit  of  debt  for 
goods  sold  and  delivered.  Bail  above  were  put  in  and  justified.  After 
issue  was  joined,  a  special  count  for  not  delivering  a  bill  of  exchange 
was  added.  At  the  trial  evidence  was  given  of  an  order  for  the  goods, 
and  of  their  having  been  made  pursuant  to  the  order ;  and  that  the 
goods  remained  in  the  plaintiff's  possession  at  the  request  of  the 
defendant,  and  were  of  the  value  of  £144 ;  that  the  defendant  took 
away  a  small  part,  of  the  value  of  £2  10s.  No  bill  was  given,  and  the 
plaintiff  at  the  trial  obtained  a  verdict  for  £144,  on  the  count  for  not 
delivering  the  bill.    A  rule  7iisi  had  been  obtained  by  Scarlett  for 


132  BENTALL   V.   BURN.  [CHAP.  I. 

entering  an  exoneretur  on  the  bail-piece,  on  the  ground  that  the  plain- 
tiff had  recovered  on  the  special  count  for  not  delivering  the  bill. 

Marryat  shewed  cause,  and  contended,  first,  that  there  was  sufficient 
evidence  to  entitle  the  plaintiff  to  recover  on  the  count  for  goods  sold 
and  delivered.^  They  were  made  to  the  defendant's  order,  and  he  took 
away  some  of  the  articles ;  and  the  rest  remained  in  the  plaintiff's 
shop  at  the  request  of  the  defendant.  The  plaintiff  had  put  it  in  the 
vendee's  power  to  take  away  the  goods ;  and  that,  according  to  the 
opinion  of  Holroyd,  J.,  in  Smith  v.  Chance,^  was  sufficient  to  maintain 
the  action. 

But  the  court  were  clearly  of  opinion  that  there  was  no  actual 
acceptance  of  these  goods  by  the  buyer  within  the  17th  section  of  the 
Statute  of  Frauds,  and  that  the  plaintiff  was  not  entitled  to  recover 
on  the  count  for  goods  sold  and  delivered,  and  the  rule  was  made 
absolute.  ^w^«  absolute. 


BENTALL  and  Others,  Assignees  of  Baker  and  Farnley,  Bank- 
,  rupts,  AND  DYER  v.  BURN. 

In  the  King's  Bench,  November  9, 1824. 

[Reported  in  3  Barnewall  ^  Cresswell,  423,] 

Assumpsit  for  goods  bargained  and  sold  and  goods  sold  and 
delivered  by  Dyer  and  the  bankrupts  before  their  bankruptcy.  This 
was  an  action  brought  to  recover  £13  145.,  the  price  of  a  hogshead  of 
Sicilian  wine  sold  to  the  defendant  by  the  bankrupts,  they  being 
copartners  with  the  other  plaintiff.  Dyer,  who  resided  in  Sicily.  At 
the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  last  Trinity 
term,  it  appeared  that  the  bankrupts  had,  on  the  15th  of  February, 
1822,  sold,  in  the  name  of  and  on  account  of  the  firm,  to  the  defend- 
ant a  hogshead  of  Sicilian  wine,  then  lying  in  the  London  docks,  at 
the  price  of  £13  14s.,  and  at  the  same  time  a  dehvery  order  and 
invoice  were  made  out  and  sent  to  the  defendant,  signed  by  the  firm. 
But  there  was  no  contract  in  writing.  On  the  5th  of  June  the  defend- 
ant, on  being  applied  to  for  payment,  said  that  the  former  order  had 
been  lost,  and  that  the  wine  had  not  been  transferred  to  him  in  proper 
time,  and  he  had  consequently  lost  the  sale  of  it ;  that  he  had  not 
been  allowed  to  taste  it.  It  was  proved  that  a  delivery  order  is  given 
where  the  wine  is  intended  to  be  speedily  removed,  and  that  the  party 

1  It  was  agreed  that  the  question  should  be  considered  on  this  motion,  in  order  to 
save  the  expense  of  a  cross  motion  for  a  new  trial. 

2  2  B.  &  A.  755. 


SECT.    TV.]  BENTALL   V.    BURN.  133 

receiving  it  may  get  the  goods  mentioned  in  the  order  upon  producing 
it  at  the  London  docks  and  paying  the  charges,  which  are  always 
deducted  from  the  price.  Upon  this  evidence  the  Lord  Chief  Justice 
was  of  opinion  that  the  acceptance  of  the  delivery  order  by  the  vendee 
was  not  equivalent  to  an  actual  acceptance  of  the  goods  within  the 
meaning  of  the  Statute  of  Frauds ;  and  he  directed  a  nonsuit  to  be 
entered,  ^dth  liberty  to  the  plaintiffs  to  move  to  enter  a  verdict  for 
them  for  the  price  of  the  wine. 

Baryieicall  now  moved  accordingly.  The  acceptance  of  the  delivery 
order  by  the  vendee  was  equivalent  to  an  actual  acceptance  of  the 
wine  itself,  for  it  was  proved  that  upon  production  of  the  order  at 
the  London  docks  he  might  have  obtained  immediate  possession  of  the 
wine.  In  Chaplin  v.  Rogers  ^  Lord  Kenyon  says :  "  "Where  goods  are 
ponderous  and  incapable  of  being  handed  over  from  one  to  another, 
there  need  not  be  an  actual  delivery ;  but  it  may  be  done  by  that 
which  is  tantamount,  such  as  the  delivery  of  the  key  of  the  warehouse 
in  Avhich  the  goods  are  lodged,  or  by  delivery  of  other  indicia  of  prop- 
erty." Now  here  the  wine  was  not  in  the  warehouse  of  the  vendor, 
and  he  therefore  could  not  give  the  vendee  the  key,  but  he  gave  him 
that  which  enabled  him  to  acquire  the  same  dominion  over  it  as  if  he 
had  the  key.  In  Searle  v.  Keeves,^  which  was  assumpsit  for  not 
deUvering  rice  pursuant  to  contract,  there  was  no  proof  of  any  con- 
tract in  writing,  but  the  plaintiffs  produced  an  order  on  Bennett  and 
Co.  to  deliver  to  them  20  barrels  of  rice,  signed  by  Keeves,  and  a 
witness  proved  that  Keeves  told  him  that  he  had  sold  that  quantity 
of  rice  to  Searle.  The  plaintiff  then  proved  the  delivery  of  the  order 
for  the  rice  to  the  warehouseman  of  Bennett ;  Keeves  afterwards  coun- 
termanded that  order,  and  Bennett  refused  to  deliver.  And  Eyre, 
C.  J.,  held  that  the  Statute  of  Frauds  did  not  attach,  because  there 
had  been  a  delivery  of  the  whole.  Keeves,  the  defendant,  gave  an 
order  for  the  delivery  on  Bennett  and  Co.,  in  whose  possession  the 
rice  then  was ;  that  satisfied  the  statute.  Now  that  case  is  expressly 
in  point.  It  may  perhaps  be  said,  as  the  London  Dock  Company  held 
the  wine  as  the  agents  of  the  vendors,  that  it  must  continue  the  prop- 
erty of  the  latter  until  the  London  Dock  Company  consented  to  hold 
it  as  the  agents  of  the  vendee  ;  that  they  might  refuse  to  become  the 
agents  of  the  latter.  The  argument  might  apply  to  the  case  of  a 
common  warehouseman ;  but  the  dock  company  having  accepted  a  cer- 
tificate from  the  treasury,  under  the  warehousing  act  of  the  43  G.  3, 
c.  132,  have  the  exclusive  privilege  of  warehousing  wines  before  the 
duties  are  paid,  and  they  are  therefore  bound  to  receive  the  goods 
into  their  warehouses,  and  to  transfer  them  from  buyer  to  seller  when 
required  so  to  do.    Allnutt  v.  Inglis.^ 

Feb  Curiam.    There  could  not  have  been  any  actual  acceptance  of 
1  1  East,  194.  2  2  Esp.  598.  »  12  East,  627. 


134  PHILLIPS  V.   BISTOLLI.  [CHAP.   I. 

the  wine  by  the  vendee  until  the  dock  company  accepted  the  order  for 
the  delivery,  and  thereby  assented  to  hold  the  wine  as  the  agents  of 
the  vendee.  They  held  it  originally  as  the  agents  of  the  vendors,  and 
as  long  ■  as  they  continued  so  to  hold  it  the  property  was  unchanged. 
It  has  been  said  that  the  London  Dock  Company  were  bound  by  law, 
when  required,  to  hold  the  goods  on  account  of  the  vendee.  That 
may  be  true,  and  they  might  render  themselves  liable  to  an  action  for 
refusing  so  to  do ;  but  if  they  did  wrongfully  refuse  to  transfer  the 
goods  to  the  vendee,  it  is  clear  that  there  could  not  then  be  any  actual 
acceptance  of  them  by  him  until  he  actually  took  possession  of  them. 

Mule  refused. 


PHILLIPS  V.  BISTOLLI. 
In  the  King's  Bench,  Michaelmas  Term,  1824. 

[Reported  in  2  Barnewall  4'  Cresswell,  611.] 

Assumpsit  for  goods  sold.  Plea,  7ion  assumpsit.  At  the  trial  before 
Abbott,  C.  J.,  at  the  Middlesex  sittings  after  Hilary  term,  1823,  the 
following  aj^peared  to  be  the  facts  of  the  case.  The  plaintiff  was  an 
auctioneer,  and  in  July,  1822,  had  put  up  for  sale,  among  several  other 
articles,  a  pair  of  ear-rings,  the  property  of  a  jeweller,  described  in  the 
catalogue  as  brilliant  top  and  drop  ear-rings ;  one  of  the  conditions  of 
sale  was,  that  the  purchaser  should  pay  30  per  cent,  upon  being 
declared  the  highest  bidder,  and  the  residue  of  the  price  before  the 
goods  were  removed.  The  defendant  was  a  foreigner,  and  did  not 
fully  understand  the  English  language ;  but  he  was  in  the  habit  of 
attending  the  plaintiff's  sales  and  purchasing  goods.  On  the  day  in 
question  he  attended,  and  bought  several  lots,  and  the  ear-rings  in 
question  were  knocked  down  to  him  as  the  highest  bidder  at  the  price 
of  88  guineas.  They  were  immediately  delivered  to  him,  and  he 
received  them  without  making  any  objection.  After  they  had  been  in 
his  hands  three  or  four  minutes,  a  person  who  interpreted  for  him  said 
to  the  plaintiff  that  the  defendant  had  bid  for  the  lot  in  question  under 
a  mistaken  idea  that  the  price  at  which  it  was  knocked  down  to  him 
was  48  guineas.  The  plaintiff  said  that  the  last  bidding  had  been 
mentioned  three  times.  The  defendant  then  returned  the  ear-rings. 
The  plaintiff,  however,  refused  to  take  them  back,  but  said  he  would 
keep  them  on  defendant's  account.  It  appeared  further  that  if 
they  were  Assyrian  garnets  they  would  be  worth  about  £50  only,  but 
if  they  were  rubies  they  would  be  worth  the  price  at  which  they  were 
knocked  down.     And  it  was  doubtful  upon  the  evidence  whether  they 


SECT.   IV.]  PHILLIPS   V.   BISTOLLI.  135 

were  nxbies  or  garnets.  It  was  objected  on  the  part  of  the  defendant 
that  there  was  no  acceptance  of  tlie  goods  by  him  so  as  to  take  the  case 
out  of  the  Statute  of  Frauds.  The  Lord  Chief  Justice,  however,  was 
of  opinion  that  there  was  a  sufficient  acceptance,  provided  that  the 
defendant  was  under  no  mistake  when  he  bid  the  88  guineas,  and  left 
it  to  tlie  jury  to  find  whether  the  defendant  was  mistaken  in  tlie  price 
at  the  time  when  he  bid  the  88  guineas;  and  the  jury  having  found 
that  there  was  no  mistake  a  verdict  was  entered  for  the  plaintiff.  In 
last  Easter  term  a  rule  nisi  was  obtained  by  Scarlett  for  a  new  trial, 
upon  the  ground  that  there  was  no  acceptance,  inasmuch  as  the  plain- 
tiff had  a  lien  upon  the  goods  until  the  price  was  paid,  and  he  could 
not  therefore  have  intended  to  part  with  the  possession  of  the  good^. 
In  order  to  satisfy  the  Statute  of  Frauds  there  must  be  a  delivery  by 
the  vendor,  with  the  intention  of  parting  with  the  possession  of  the 
property  sold.  Now  here  it  is  not  to  be  presumed  that  the  plaintiff 
intended  to  part  with  the  possession  of  the  property  until  the  price,  or 
the  deposit  mentioned  in  the  conditions  of  sale,  was  paid.  At  all 
events  it  was  under  the  circumstances  a  question  of  fact  for  the  jury, 
whether  the  delivery  was  made  by  the  vendor  with  the  intention  of 
parting  with  the  possession,  and  whether  the  defendant  accepted  the 
goods  with  the  intention  of  acquiring  the  right  of  possession  as  owner. 
Chaplin  v.  Rogers,^  Blenkinsop  v.  Clayton.- 

Gurney  and  Comyn  now  shewed  cause.  It  is  sufficient  to  satisfy 
the  Statute  of  Frauds  if  the  defendant  for  a  single  moment  accepted 
the  goods.  Carter  v.  Toussaint.^  Here  they  must  have  been  delivered 
by  the  vendor  with  the  intention  of  vesting  the  right  of  possession  in 
the  vendee  as  OAvner.  [Holroyd,  J.  Then  you  say  that  the  vendee 
would  have  had  a  right  to  take  the  goods  away,  although  the  auctioneer 
had  insisted  upon  the  price  being  first  paid.]  The  plaintiff  waived  his 
right  to  the  papnent  of  the  price  or  the  deposit  by  delivering  the 
goods.  Here,  upon  the  evidence,  it  appears  at  least  that  the  goods 
were  delivered  to  the  defendant  as  owner,  that  he  received  them  with- 
out objection,  and  that  he  kept  them  in  his  possession  for  three  or  four 
minutes.  There  was  therefore  an  acceptance  by  him  as  owner  during 
that  interval. 

Per  Curiam.  In  order  to  satisfy  the  statute,  there  must  be  a 
delivery  of  the  goods  by  the  vendor,  with  an  intention  of  vesting  the 
right  of  possession  in  the  vendee  ;  and  there  must  be  an  actual  accept- 
ance by  the  latter,  with  an  intention  of  taking  to  the  possession  as 
owner.  It  lies  upon  the  plaintiff  in  this  case  to  make  out  that  there 
was  such  delivery  and  acceptance.  Now  here,  by  the  printed  condi- 
tions of  sale,  a  deposit  of  30  per  cent,  was  to  be  paid  upon  the  party 
being  declared  the  highest  bidder,  and  the  residue  of  the  purchase 
money  Avhen  the  goods  were  removed ;  and  it  is  not  to  be  presumed 
1  1  East,  192.  2  1  B.  Moore,  328.  3  5  b.  &  A.  855. 


136  PROCTOR  V.   JONES.  [CHAP.   I. 

that  the  vendor  intended,  contrary  to  that  condition,  to  part  with  the 
right  of  possession  until  the  deposit  or  price  was  paid.  There  was 
therefore  very  slight  evidence  to  shew  that  the  plaintiff  intended  to 
pai-t  with  all  control  over  the  goods  when  he  delivered  them.  Then 
was  there  any  acceptance  by  the  defendant  as  owner?  It  appears  that 
a  very  short  interval  elapsed  after  the  lot  was  knocked  down,  before 
the  defendant  objected  that  he  had  been  mistaken  in  the  price. 
Unless  therefore  the  retaining  of  them  for  the  three  or  four  minutes 
that  intervened  was  evidence  of  an  actual  acceptance  by  him  as  owner, 
it  is  clear  that  there  was  not  any  acceptance  afterwards.  That,  at  all 
events,  was  very  slight  evidence  of  an  acceptance  by  the  defendant  as 
owner,  and  it  ought  at  least,  under  all  the  circumstances,  to  be  sub- 
mitted as  a  question  of  fact  to  the  jury,  whether  there  was  delivery  by 
the  vendor  and  an  actual  acceptance  by  the  vendee,  intended  by  both 
parties  to  have  the  effect  of  transferring  the  right  of  possession  from 
the  one  to  the  other.  Hule  absolute. 


PROCTOR  V.  JONES. 
At  Nisi  Prius,  coram  Best,  C.  J.,  December  11,  1826. 

{Reported  in  2  Carrinrjton  tj-  Payne,  532.] 

Assumpsit  to  recover  the  price  of  a  quantity  of  wine.     The  plain- 
tiff's clerk  proved  that  he  went  with  the  plaintiff  and  defendant  to  the 
London  Docks  for  the  pui-j^ose  of  the  defendant's  tasting  some  wine  of 
the   plaintiff's.     After  several  sorts  had  been  tasted  and  the  prices 
mentioned,  the  defendant  agreed  to  take  two  casks  of  Port,  and  directed 
the  witness  to  mark  them  with  the  initials  of  his  name,  that  no  mistake 
might  occur.     On  being  asked  his  initials  by  the  plaintiff,  he  said  they 
were  T.  J.,  and  T.  J.  was  then  marked  on  the  casks  by  the  witness  in 
the  defendant's  presence :  a  third  was  afterwards  marked  in  the  same 
way.     The  plaintiff  then  left ;  and  the  witness  and  the  defendant  went 
towards  another  warehouse  to  see  some  Cape  wine,  and  while  they 
were  going  the  defendant  said  that  he  had  laid  out  a  good  deal  of 
money  in  gin,  and  should  want  some  time  for  the  wine.     The  witness 
told  him  he  might  have  two  months,  and  he  said  that  would  do  very 
well.     The  defendant  then  said  that  he  had  several  cases  in  the  Court 
of  Requests,  and  he  must  go  there,  or  he  should  be  nonsuited,  but 
added  that  the  witness  knew  what  would  suit  hun  ;   and  he  left  it  to 
■  him  to  select  for  him  both  with  regard  to  the  quality  and  price. 

For  the  plaintiff,  the  case  of  Anderson  v.  Scot^  Avas  cited. 

1  1  Campb.  235,  note. 


SECT.   IV.]  PROCTOR   V.   JONES.  137 

Wilde,  Serjt.,  for  the  defendant.  An  act  done  by  the  vendor  is  not 
an  act  which  will  bind  the  purchaser  under  the  Statute  of  Frauds. 
There  was  no  contract  at  the  time  of  marking ;  the  contract  was  made 
afterwards  ;  marking  is  not  sufficient.  Anderson  v.  Scot  has  been 
considered  a  very  strong  case.  The  words  of  the  statute  are  [stating 
them].  It  does  not  appear  in  what  condition  the  wines  were  at  the 
docks,  to  what  order  they  were  deliverable,  or  to  what  liens  they  were 
subject.  What  occurred  cannot  be  said  to  be  equivalent  to  an  actual 
receipt,  when  it  does  not  appear  that  the  purchaser  had  any  control 
over  the  wine. 

Btctchinson,  on  the  same  side,  referred  to  the  cases  of  Farebrother  v. 

Sunmons,^  Baldey  and  Another  v.  Parker,-  and  Thompson  v.  Maceroni.'' 

Vauffhan,  Serjt.,  in  reply,  contended  that  the  proposition  was  a 

monstrous  one,  which  Avas  sought  to  be  maintained  on  the  part  of  the 

defendant.     He  cited  Elmore  v.  Stone.* 

Best,  C.  J.     That  case  has  been  overruled. 

Vauffhati,  Serjt.  Could  the  plaintiff  have  had  a  right,  if  he  had 
heard  of  the  insolvency  of  the  vendee,  to  say  there  was  no  delivery? 
There  was  a  symbolical  delivery. 

Ma7ining,  on  the  same  side.  The  case  of  Baldey  v.  Parker  is  distin- 
guishable from  tliis,  because  there  the  goods  were  capable  of  delivery ; 
but  here  they  were  not,  partly  on  account  of  their  bulk,  and  partly  on 
account  of  the  necessity  of  previously  paying  the  duty. 

Best,  C.  J.     The  Statute  of  Frauds  and  the  Statute  of  Limitations 
were  both  so  much  objected  to  at  the  time  when  they  were  passed 
that  the  judges  appeared  anxious  to  get  them  off  the  statute  book,  but 
in  later  times  they  have  become  desirous  to  give  them  their  full  effect. 
I  think  the  Statute  of  Frauds  is  a  good  and  wholesome  statute.     In 
other  countries  contracts  are  made  in  writing.      If  my  Lord  Ellen- 
borough's  opinion  in  the  case  of  Scot  v.  Anderson  was  an  opinion  upon 
a  matter  of  common  law,  I  should  act  upon  it ;   but  it  is  on  the  con- 
struction of  a  statute ;  and  the  words  of  the  statute  are  against  it.     It 
is  the  intention  of  the  statute  that  there  should  be  as  complete  a 
delivery  as  can  be  according  to  the  nature  of  the  article.     It  cannot  be 
said  in  the  present  case  that  the  defendant  actually  received  the  goods.. 
Could  the  vendee  maintain  trover  if  the  goods  were  not  delivered  ? 
Certainly  he  could  not,  for  the  seller  would  have  a  lien  on  them  for  the 
price,  as  there  was  no  stipulation  as  to  payment  at  a  future  time.     But 
not  only  was  there  no  delivery,  but  there  was  no  complete  contract  at 
the  time  of  the  marking ;  for  at  that  time  the  time  of  payment  was  not 
agreed  upon ;  but  it  was  settled  in  a  conversation  afterwards.    If  there 
was  no  complete  contract  at  the  time  of  the  marking,  then  the  marking 

1  5  B.  &  Aid.  333.  2  2  B.  &  Cr.  37. 

3  3  B.  &  Cr.  1.  *  1  Taunt.  458. 


138      .  ROHDE   V.   THWAITES.  [CHAP.   I. 

cannot  be  an  acceptance  under  the  statute.  If  the  plaintiiF  had  made 
a  transfer  in  the  dock  books,  that  would  in  my  opinion  have  been  a 
syraboUcal  deliver}'.  I  think,  looking  to  the  words  of  the  statute,  that 
I  am  bound  to  call  the  plaintiff.  '  Nonsuit. 


ROHDE  AND   Others   v.   THWAITES. 
In  the  King's  Bench,  Hilary  Term,  1827. 

[Reported  in  6  Barnewall  Sf  Cresstvell,  388.] 

Declaration  stated  that  on  the  3d  of  December,  1825,  the  defend- 
ant bargained  for  and  bought  of  the  plaintiffs,  and  the  plaintiffs  at  the 
request  of  the  defendant  sold  to  him  certain  goods,  to  wit,  twenty 
hogsheads  of  sugar,  at  56s.  Qd.  per  cwt.,  to  be  delivered  by  the  plain- 
tiffs to  the  defendant  upon  request,  and  to  be  paid  for  at  the  expira- 
tion of  two  months  then  following ;  and  in  consideration  thereof,  and 
that  the  plaintiffs  at  the  like  request  of  the  defendant  had  undertaken  and 
faithfully  promised  the  defendant  to  deliver  the  goods  to  him,  he  the 
defendant  undertook  and  faithfully  promised  the  plaintiffs  to  accept 
the  goods  when  he  should  be  requested,  and  to  pay  them  the  plaintiffs 
for  the  same  at  the  expiration  of  the  said  credit.  Averment,  that  the 
price  of  the  goods  amounted  to  a  certain  sum,  to  wit,  &c.,  and  that 
although  the  plaintiffs  had  always  been  ready  and  willing  to  deliver 
the  goods  to  the  defendant,  and  requested  him  to  accept  the  same,  and 
althoiigh  the  credit  had  expired,  yet  the  defendant  did  not,  nor  would 
at  the  time  when  he  was  so  requested,  or  at  any  time  before  or  after- 
wards, accept  the  goods  or  pay  the  plaintiffs  or  either  of  them  for  the 
same,  but  refused  so  to  do.  There  was  then  an  indebitatus  count  for 
goods  bargained  and  sold.  The  defendant  suffered  judgment  to  go  by 
defliult.  Upon  the  execution  of  the  writ  of  inquiry  the  plaintiffs  proved 
that  a  contract  for  the  sale  of  twenty  hogsheads  of  sugar  was  made  on 
the  3d  of  December,  1825,  at  56s.  6c?.  per  cwt.,  but  there  was  no  suffi- 
cient note  in  writing  to  satisfy  the  Statute  of  Frauds.  On  that  day 
the  plaintiffs  had  in  their  warehouse  on  the  floor,  in  bulk,  a  much  larger 
quantity  of  sugar  than  would  be  required  to  fill  up  twenty  hogsheads, 
but  no  part  of  it  was  in  hogsheads.  The  defendant  saw  the  sugar  in 
this  state  in  the  plaintiffs'  warehouse,  and  then  made  the  contract  in 
question.  Four  hogsheads  were  filled  up  and  delivered  to  the  defend- 
ant on  the  10th  of  December,  and  a  few  days  afterwards  the  plaintiffs 
filled  up  the  remaining  sixteen  hogsheads,  and  gave  notice   to   the 


SECT.   IV.]  EOHDE  V.   THWAITES.  139 

defendant  that  they  were  ready,  and  required  liim  to  take  them  away ; 
he  said  he  would  take  them  away  as  soon  as  he  could.  They  were  not 
weighed  till  February,  1826,  when  the  plaintiffs  delivered  a  hill  of 
parcels  to  the  defendant.  The  plaintiffs  added  to  the  bulk  from  time 
to  time  as  sales  were  made,  and  it  did  not  very  distinctly  appear 
whether  the  sixteen  hogsheads  were  filled  wholly  with  the  same  sugar 
which  was  in  the  Avarehouse  on  the  3d  of  December  wlien  the  contract 
was  made.  The  four  hogsheads  which  were  first  delivered  were  filled 
with  that  susrar.  It  was  admitted  that  there  was  sufficient  evidence  of 
a  sale  of  the  four  hogsheads,  inasmuch  as  there  was  an  acceptance  of 
them  by  the  defendant.  No  contract  in  writing  sufiicient  to  satisfy  the 
Statute  of  Frauds  having  been  proved,  it  was  insisted  that  there  was 
no  evidence  of  any  contract  of  sale  of  the  sixteen  hogsheads  of  sugar, 
and  that  the  plaintiffs  could  only  recover  for  the  four  hogsheads  which 
had  been  actually  delivered ;  but  the  jury  imder  the  direction  of  the 
under-sheriff  found  a  verdict  for  the  value  of  the  twenty  hogsheads.  A 
rule  nisi  for  setting  aside  the  writ  of  inquiry  having  been  obtained  by 
Hutchinson  in  Trinity  term, 

F.  Pollock  now  shewed  cause.  The  defendant,  by  suffering  judg- 
ment to  go  by  default,  has  admitted  the  contract  stated  in  the  declara- 
tion ;  and  the  plaintiffs  therefore  are  entitled  to  recover  any  damages 
sustained  by  breach  of  that  contract.  Secondly,  the  defendant  accepted 
four  hogsheads  of  the  sugar.  This  is  a  case  therefore  Avithin  the  excep- 
tion of  the  17th  section  of  the  Statute  of  Frauds,  for  the  buyer  has 
accepted  part  of  the  goods  sold,  and  actually  received  the  same. 
Thirdly,  there  has  been  an  acceptance  of  the  Avhole  ;  for  after  the  six- 
teen hogsheads  were  separated  from  the  bulk,  the  defendant  being 
required  to  take  them  aAvay  said  he  would  as  soon  as  he  could.  This 
is  equivalent  to  an  acceptance  of  the  sixteen  hogsheads. 

Hutchinson^  contra.  By  suffering  judgment  by  default,  the  defend- 
ant admits  generally  the  plaintiffs'  right  to  recover  on  the  contract 
stated  in  the  declaration  to  a  certain  extent,  and  in  this  case  he  admits 
the  right  of  the  plaintiffs  to  recover  the  value  of  the  four  hogsheads  which 
were  actually  delivered.  Secondly,  the  17th  section  of  the  29  Car.  2,  c.  3, 
enacts  [stating  it].  Now  in  this  case  no  specific  twenty  hogsheads  of 
sugar  were  agreed  to  be  sold,  but  the  plaintiffs  were  to  select  from  a 
large  bulk  in  their  Avarehouse  a  sufficient  quantity  of  sugar  to  fill 
twenty  hogsheads.  At  the  time  AA'hen  the  four  hogsheads  were  deliA"- 
ered  to  and  accepted  by  the  defendant,  the  quantity  required  to  fill  tlie 
other  sixteen  hogsheads  had  not  been  separated  from  the  bulk.  The 
four  therefore  did  not  constitute  any  part  of  the  tAventy,  and  conse- 
quently the  acceptance  of  the  four  Avas  not  an  acceptance  of  part  of  the 
goods  sold ;  and  if  that  be  so,  as  there  was  no  sufficient  note  in  Avriting 
of  a  contract  of  sale,  the  property  in  the  sixteen  hogsheads  did  not 
pass  to  the  defendant ;  and  as  the  plaintiffs'  claim  is  founded  on  a  bar- 


140  ROHDE   V.    THWAITES.  [CHAP.    I. 

gain  and  sale,  they  cannot  upon  this  declaration  recover  more  than 
the  value  of  the  four  hogsheads  which  were  sold  to  and  accepted  by 
the  defendant. 

Bayley,  J.  Where  a  man  sells  part  of  a  large  parcel  of  goods,  and 
it  is  at  his  option  to  select  part  for  the  vendee,  he  cannot  maintain  any 
action  for  goods  bargained  and  sold  until  he  has  made  that  selection; 
but  as  soon  as  he  appropriates  part  for  the  benefit  of  the  vendee,  the 
property  in  the  article  sold  passes  to  the  vendee,  although  the  vendor 
is  not  bound  to  part  with  the  possession  until  he  is  paid  the  price. 
Here  there  was  a  bargain  by  which  the  defendant  undertook  to  take 
twenty  hogsheads  of  sugar,  to  be  prepared  or  filled  up  by  the  plaintifis. 
Four  were  delivered ;  as  to  them  there  is  no  question,  but  as  to  the  six- 
teen it  is  said  that,  as  there  was  no  note  or  memorandum  of  a  contract 
in  writing  sufficient  to  satisfy  the  Statute  of  Frauds,  there  was  no  valid 
sale  of  them ;  and  that  the  plaintiffs  in  their  declaration  having  stated 
their  claim  to  arise  by  virtue  of  a  bargain  and  sale,  cannot  recover  for 
more  than  the  four  hogsheads  which  were  actually  delivered  to  and 
accepted  by  the  defendant ;  that  in  order  to  recover  for  the  others  they 
ought  to  have  declared  specially  that,  in  consideration  the  plaintiffs 
would  sell,  the  defendant  promised  to  accept  them.  In  answer  to  this 
it  is  said  that  there  was  an  entire  contract  for  twenty  hogsheads,  and 
that  the  defendant  by  receiving  four  had  accepted  part  of  the  goods 
sold  within  the  meaning  of  the  17th  section  of  the  Statute  of  Frauds. 
In  fact  the  plaintiffs  did  ai^propriate  for  the  benefit  of  the  defendant 
sixteen  hogsheads  of  sugar,  and  they  communicated  to  the  defendant 
that  they  had  so  approj^riated  them,  and  desired  him  to  take  them 
away ;  and  the  latter  adopted  that  act  of  the  plaintiffs,  and  said  he 
would  send  for  them  as  soon  as  he  could.  I  am  of  opinion  that  by 
reason  of  that  approi^riation  made  by  the  plaintiffs,  and  assented  to  by 
the  defendant,  the  property  in  the  sixteen  hogsheads  of  sugar  passed 
to  the  vendee.  That  being  so,  the  plaintiffs  are  entitled  to  recover  the 
full  value  of  the  twenty  hogsheads  of  sugar  under  the  count  for  goods 
bargained  and  sold.  The  rule  for  setting  aside  this  writ  of  inquiry 
must  therefore  be  discharged. 

HoLKOYD,  J.  The  sugars  agreed  to  be  sold  being  part  of  a  larger 
parcel,  the  vendors  were  to  select  twenty  hogsheads  for  the  vendee. 
That  selection  was  made  by  the  plaintiffs,  and  they  notified  it 
to  the  defendant,  and  the  latter  then  promised  to  take  them  away. 
That  is  equivalent  to  an  actual  acceptance  of  the  sixteen  hogsheads  by 
the  defendant.  That  acceptance  made  the  goods  his  own,  subject  to 
the  vendors'  lien  as  to  the  price.  If  the  sugars  had  afterwards  been 
destroyed  by  fire,  the  loss  must  have  fallen  on  the  defendant.  I  am  of 
opinion  that  the  selection  of  the  sixteen  hogsheads  by  the  plaintiffs,  and 
the  adoption  of  that  act  by  the  defendant,  converted  that  which  was 
before  a  mere  agreement  to  sell  into  an  actual  sale,  and  that  the  prop- 


SECT.   IV.]  COLEMAN   V.   GIBSON.  141 

erty  in  the  sugars  thereby  passed  to  tlie  defendant ;  and  consequently 
that  they  were  entitled  to  recover  to  the  value  of  the  whole  under  the 
count  for  goods  bargained  and  sold. 

LiTTLEDALE,  J.,  concurrcd.  Hide  discharged. 


COLEMAN  V.  GIBSON. 

At  Guildhall,  coram  Lord  Tenterden,  February  22,  1832. 

[Reported  in  1  ^ foody  ^'  liohiiison,  168.] 

Assumpsit  for  goods  sold  and  delivered,  work  and  labor,  &c. 

The  action  was  brought  for  £18,  the  price  of  four  vats  ordered  ver- 
bally by  the  defendant  from  the  plaintiff.  An  order  for  five  was  given 
on  the  6th  of  January,  and  one  of  the  vats  was  delivered  according  to 
the  order  at  Messrs.  Seager  and  Evans,  distillers,  on  the  11th,  another 
on  the  19th,  and  two  more  on  the  24th.  On  the  Wednesday  following 
(January  26),  the  defendant  went  to  the  plaintiff  and  refused  to  take 
the  casks,  and  the  fifth  was  accordingly  not  delivered.  The  defendant 
had  seen  them  on  the  19th,  and  expressed  no  dissatisfoction  with  them, 
but  ordered  the  plaintiff  to  proceed.  The  refusal  was  on  the  ground 
of  bad  quality,  and  that  they  leaked.  As  to  this  there  was  contradic- 
tory evidence.  It  appeared  that  it  was  usual  to  send  goods  of  this  kinc 
to  distillers  to  be  seasoned,  as  had  been  done  in  this  instance.  The 
vats  were  never  returned. 

Williams,  for  the  defendant,  contended  that  the  defendant  could  not 
be  charged  with  these  goods,  there  being  only  a  parol  order,  and  no 
acceptance.  The  stat.  9  G.  4,  c.  14,  §  7,  has  extended  the  provisions  of 
the  Statute  of  Frauds  to  such  a  case  as  the  present.  The  plaintiff 
therefore  must  shew  an  acceptance,  and  this  must  not  be  a  taking  them 
merely  for  trial,  Avith  a  right  still  to  object  to  thera  as  not  merchantable. 
Here,  though  they  were  delivered  according  to  the  order  of  the  defend- 
ant, it  was  with  a  view  to  ascertaining  their  quality,  and  he  still  had  a 
right  to  refuse  them :  the  mere  fact  therefore  that  they  were  not 
actually  returned,  but  continued  on  the  premises  of  Messrs.  Seager,  will 
not  convert  this  into  an  acceptance.  In  fact  he  did  complain  of  their 
quality  and  refuse  them.  That  tlie  mere  fact  of  the  receipt  of  the 
goods  by  a  party  named  by  the  buyer  does  not  amount  to  an  accept- 
ance of  them  by  him,  is  clear  from  Howe  v.  Palmer,  3  B.  &  A.  321 ; 
Hanson  v.  Annitage,  5  B.  &  A.  557 ;  and  Astey  v.  Emery,  4  M.  &  S. 
262 :  in  the  former  of  which  it  was  expressly  laid  down  that  there 
could  be  no  actual  acceptance  so  long  as  the  buyer  continued  to  have 
a  right  to  object  either  to  the  quantum  or  quality  of  the  goods. 


142  MABERLEY  V.   SHEPPARD.  [CHAP.   I. 

LoED  Tenterden,  C.  J.  The  defendant  is  bound  to  object  to 
receive  the  casks  within  a  reasonable  time ;  and  it  will  be  a  question  for 
the  jury  whether  he  did  so.  It  appears  that  it  is  usual  for  articles  of 
this  kind  to  be  sent  to  a  distiller's,  as  in  this  case,  to  be  seasoned  before 
they  are  taken  to  the  publican's.  This  would  give  the  defendant  an 
opportunity  of  ascertaining  the  quality  of  the  goods,  and  he  would  be 
entitled  to  time  for  this  pui-jDOse.  But  allowing  him  this,  he  must  deter- 
mine in  a  reasonable  time ;  and  if  he  lets  it  elapse  without  objection, 
I  think  he  must  be  considered  as  having  accepted.  The  refusal  in  this 
case  was  certainly  made  soon  after  the  deUvery  of  the  last  two  casks, 
and  the  question  may  perhaps  be  different  as  to  them  and  as  to  those 
that  were  delivered  before :  they  are  to  be  treated  in  this  respect  as 
separate  items.  The  jury  will  have  to  consider  whether  the  defendant 
signified  his  objection  to  all  or  any  of  the  casks  in  a  reasonable  time ; 
for  all  which  were  not  so  objected  to  the  plaintiff  will  be  entitled  to  a 
verdict,  unless  the  jury  should  be  of  opinion  that  the  casks  were  really 
unfit  for  use.     If  they  were,  they  are  no  compliance  with  the  order. 

Verdict  for  the  plaintiff  for  the  whole  amount. 


MABERLEY  v.   SHEPPARD. 

In  THE  Common  Pleas,  June  11,  1833. 

[Reported  in  10  Bingham,  99.] 

This  was  an  action  for  the  price  of  a  wagon  alleged  to  have  been 
sold  and  delivered  by  the  plaintiff  to  the  defendant. 

At  the  trial  it  appeared  that  the  iron  work  used  for  the  wagon  was 
purchased  by  the  defendant  of  another  person  who  assisted  the  plain- 
tiff's men  in  putting  it  on,  and  charged  the  defendant  for  his  time. 
The  defendant  also  purchased  a  tilt  from  another  person,  which  was 
afterwards  carried  to  the  plaintiff's  yard  and  fixed  by  his  men  on  the 
wagon.  These  things  having  been  done  before  the  wagon  was  finished, 
and  there  being  no  proof  of  actual  delivery,  the  plaintiff  was  nonsuited. 

Wilde,  Seijt.,  in  Easter  term  obtained  a  rule  nisi  to  set  aside  this 
nonsiiit,  on  the  ground  that  the  defendant  exercised  acts  of  ownership 
over  the  wascon,  and  that  the  exercise  of  such  acts  was  tantamount  to 
a  delivery.     Chaj)lin  v.  Rogers.^ 

Jones,  Serjt.,  showed  cause.  In  Chaplin  v.  Rogers  a  part  of  certain 
hay,  the  price  of  which  the  plaintiff  sought  to  recover,  was  sold  by  the 
1  1  East,  192  ;_Bac.  Abr.,  Agreement  (C). 


SECT.    IV,]  MABERLEY   V.    SHEPPARD.  143 

defendant  to  a  third  person  avIio  actually  carried  it  away.  Hero 
the  defendant  only  assisted  in  the  construction  of  the  wagon,  but 
never  received  it  after  it  Avas  finished.  There  has  therefore  been  no 
acceptance  pursuant  to  the  Statute  of  Frauds,  §  17. 

Wilde  was  heard  in  support  of  the  rule.  Cur.  adv.  vult. 

TiNDAL,  C.  J.  The  question  in  this  case  arises  upon  the  17th  section 
of  the  Statute  of  Frauds,  the  provisions  of  which  have  been  extended 
by  the  late  act  9  G.  4,  c.  14,  to  contracts  for  the  sale  of  goods,  "  not- 
withstanding the  goods  may  not  at  the  time  of  the  contract  be  actually 
made."  And  the  question  is,  whether  there  has  been  such  an  accept- 
ance of  the  wagon  hy  the  defendant  as  to  satisfy  the  Statute  of  Frauds?. 
The  words  of  the  section  above  referred  to  are  very  precise :  that  the 
contract  shall  not  be  allowed  to  be  good  "  unless  the  buyer  shall  accept 
part  of  the  goods  so  sold  and  actually  receive  the  same."  The  class 
of  cases  on  which  the  plaintiff  relies  is  that  in  which  the  buyer  has 
exercised  some  decisive  act  of  ownership  over  the  commodity  sold,  as 
in  the  case  of  Chaplin  v.  Rogers  by  selling  part  of  it  to  another  per- 
son ;  and  it  is  contended  that  the  fact  of  the  iron  work  used  for  the 
wagon  having  been  purchased  by  the  defendant  of  another  person  who 
assisted  the  plaintiff's  men  in  putting  it  up,  and  charged  the  defendant 
for  his  time,  is  such  an  act  of  ownership  exercised  upon  the  wagon  by 
an  agent  of  the  defendant  as  brings  this  case  within  the  i)rinciple 
above  referred  to.  It  must  be  observed,  however,  that  this  was  not 
any  act  done  after  the  wagon  was  finished  and  capable  of  being  deliv- 
ered, but  merely  whilst  it  was  in  progress ;  and  that  after  such  assist- 
ance had  been  rendered,  and  the  iron  work  fixed,  the  wagon  was  left 
in  the  plaintiff's  yard  to  be  finished  by  him.  If  the  w^agon  had  been 
completed  and  ready  for  delivery,  and  the  defendant  had  then  sent  a 
workman  of  his  own  to  perform  any  additional  work  upon  it,  such 
conduct  on  the  part  of  the  defendant  might  have  amounted  to  an 
acceptance.  We  think  the  act  proved  at  the  trial  is  by  no  means  so 
strong  and  unequivocal  as  that  which  took  place  in  Chaj^lin  v.  Rogers, 
where  the  purchaser  sold  part  of  the  hay  to  a  stranger  who  actually 
took  it  away.  Another  act  which  occurred  in  this  case  is  of  a  still  more 
doubtful  character;  namely,  the  defendant's  purchasing  a  tilt  from 
another  person  which  was  afterwards  carried  to  the  plaintiff's  and 
fixed  by  his  men  on  the  wagon.  This  would  seem  to  amount  to  no 
more  than  if  the  defendant  had  sent  a  portion  of  his  own  materials  to 
be  worked  up  by  the^plaintiff.  And  indeed  in  the  case  referred  to  the 
court  relied  much  upon  the  finding  of  the  jury  that  there  had  been  a 
delivery  of  the  couimodity  to  the  purchaser;  which  finding,  they 
observed,  they  were  not  satisfied  was  wrong.  Now  there  has  been  no 
Buch  finding  of  the  jury  in  this  case. 

On  the  other  hand  there  are  decisions  which  go  the  length  of  hold- 


144  BAINES  V.   JEVONS.  [CHAP.   I. 

ing  that,  as  long  as  the  vendor  retains  his  right  of  lien  over  the  whole 
of  the  commodity  sold,  there  has  been  no  such  delivery  and  acceptance 
as  the  statute  intended.     And  again  that  unless  there  has  been   a 
delivery  of  the  goods  by  the  vendor  with  an  intention  of  vesting  the 
right  of  possession  in  the  vendee,  and   an  actual  acceptance  of  the 
latter  with  an  intention  of  taking  possession  as  owner,  the  statute  is 
not  satisfied  (see  Baldey  v.  Parker  ^  and  Phillips  v.  Bistolli  ^) ;  and 
undoubtedly  the  present  case  cannot  be  held  to  fall  Avithin  the  compass 
of  either  of  those  decisions.     For  the  plaintiff  retained  his  lien  upon  the 
wagon,  and  there  was  nothing  in  the  facts  that  denoted  any  intention 
either  to  deliver  or  to  accept.     The  circumstances  of  this  case  certainly 
leaA-e  it  open  to  doubt  whether  the  statute  has  been  complied  with  or 
not ;  but  we  think  it  is  the  duty  of  the  plaintiff  ta  free  the  case  from  all 
doubt,  and  where  any  remains  that  it  is  safer  to  adhere  to  the  plain 
intelligible  words  of  the  statute,  which  point  as  clearly  as  words  can 
to  an  actual  deUvery  and  an  actual  receiving  of  part  or  the  whole  of 
the  goods  sold.    Upon  this  ground  we  hold  that  in  the  present  case 
the  requisites  of  the  statute  have  not  been  complied  with,  and  that  the 
rule  for  setting  aside  the  nonsuit  and  entering   a  verdict  for  plaintiff 
must  be  Discharged. 


BAINES    y.  JEVONS. 

At  Nisi  Prius,  coram  Alderson,  B.,  March  12, 1836. 

{Reported  in  7  Camngton  ^  Payne,  288.] 

Debt  for  goods  sold  and  delivered,  with  a  count  upon  an  account 
stated.  Pleas,  first,  to  the  whole  declaration,  mmqiimn  indebitatus ; 
second,  as  to  the  goods  sold  and  delivered,  that  the  goods  were  sold 
at  one  time,  and  that  the  price  exceeded  £10,  and  that  the  defendant 
did  not  accept  the  goods  or  any  part,  or  give  any  thing  in  earnest  or 
part  payment,  nor  was  there  any  note  in  writing.  Replication,  that 
the  defendant  accepted  the  goods. 

It  appeared  that  the  defendant  had  bought  of  the  plaintiff  a  fire- 
engine  at  the  price  of  £25 ;  and  to  prove  the  acceptance  of  it  by  the 
defendant,  a  witness  was  called  who  stated  that  the  defendant  took 
him  into  a  yard  where  the  fire-engine  stood  to  show  it  to  him ;  and 
that  on  his  asking  the  defendant  Avhat  he  meant  to  do  with  it,  as  no 
one  would  want  it,  the  defendant  replied  that  the  parish  of  Dudley 
would  want  an  engine,  as  well  as  two  other  persons  whom  he  named. 
It  was  also  proved  that,  on  another  person  asking  the  defendant  what 

1  2  B.  &  C.  44.  2  2  B.  &  C.  511. 


SECT.    IV.]  ELLIOTT   V.   THOMAS.  145 

he  mount  to  do  with  it,  ho  ropHocl,  "  I  know  what  I  am  goin^j  to  do 
with  it;"  and  it  furthor  apjjoared  that,  on  Mr.  Neal  asking  if  the  plain- 
tiff wouhl  sell  the  engine,  the  defendant  said,  "  Never  mind  that ;  I 
have  a  concern  in  tliat  enscino." 

Aldkuson",  B.,  (in  summing  up).  Tlic  question  hero  is,  Whctlier  the 
defendant  has  accepted  this  lire-engine  V  We  find  that  the  defendant 
takes  a  person  to  look  at  it,  and  says  who  is  likely  to  want  it.  You 
will  say  whether  that  is  not  a  . dealing  with  it  as  his  own;  and  when 
another  witness  asks  him  what  he  is  going  to  do  with  it,  the  defendant 
does  not  say  that  it  is  not  his ;  but  he  replies,  "  I  know  Avhat  I  am 
going  to  do  with  it."  And  in  his  observations  to  Mr.  Neal,  ho  speaks 
as  if  it  were  his  own.  You  will  consider  whether  this  convinces  you 
that  the  defendant  treated  this  fire-engine  as  his  own,  and  dealt  with  it 
as  such ;  for  if  so,  the  plaintiff  is  entitled  to  a  verdict. 

YercUct  for  the  plaintiff. 


ELLIOTT   V.   THOMAS   and   Another. 
In  THE  Exchequer,  Hilary  Term,  1838. 

[lieTported  in  3  Meeson  ^-  Welshy,  170.] 

Assumpsit  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Plea,  the  general  issue.  At  the  trial  before  Parke,  B.,  at  the  summer 
assizes  for  Yorkshire,  the  following  appeared  to  be  the  facts  of  the  case  : 
On  the  16th  of  November,  1835,  the  traveller  of  the  plaintiff,  who  is 
a  steel  manufacturer  at  Sheffield,  took  from  the  defendants,  who  were 
in  partnership  as  edge-tool  makers  in  Birmingham,  a  verbal  order  for 
thirty-five  bundles  of  common  steel  at  34,s.,  and  five  bundles  of  cast 
steel  at  48s.,  of  a  specified  thickness.  The  traveller  wrote  down  the 
order  at  the  time  in  his  own  book,  but  no  memorandum  was  made  of 
it  such  as  to  satisfy  the  Statute  of  Frauds.  On  the  19th  of  December 
the  defendants  wrote  by  post  to  the  plaintiff  for  three  hundred  weight 
more  of  cast  steel.  The  steel  ordered  on  the  first  occasion  was  for- 
warded by  canal  to  the  defendants  at  various  times  in  the  months  of 
December  and  January.  On  the  10th  of  February  the  defendants 
wrote  to  the  plaintiff  the  following  letter :  — 

Bikjiingiia:*!,  February  10,  1836. 
Sir,  — We  arc  in  want  of  the  remainder  of  cast  steel  ordered,  which  we  trust 
will  be  forwarded  immediately.  In  your  invoice  of  the  11th  and  16th  of  Janu- 
ary, you  charge  thirty-seven  bundles  of  cast  steel ;  we  have  only  received  tliirty- 
four  bundles  from  Pickford's,  consequently  three  bundles  short.  We  must  again 
request  you  will  be  careful  to  send  it  the  right  thickness ;  part  of  the  last  was 
wrong.     Your  attention  will  oblige 

Yours  respectfully,  R.  &  G.  Thomas. 

VOL.   1.  10 


146  ELLIOTT  V.    THOMAS.  [CHAP.   I. 

On  the  17th  of  February  the  plaintiiF's  traveller  called  again  on  the 
defendants.  They  told  him  they  were  afraid  the  steel  was  not  of  a 
proper  temper,  but  too  hard,  and  begged  that  he  would  state  that  to 
the  plaintiif.  The  defendants  then  j^aid  the  traveller  £128  12s.  in  part 
of  the  price,  leaving  a  balance  (according  to  the  invoice)  of  £112  3s, 
9c?.,  for  which  balance  the  defendants  proposed  to  give  their  bill  at 
twelve  months,  on  receiving  some  allowance  for  the  wrong  temper  in 
the  steel ;  but  which  the  traveller  did  .not  assent  to.  On  the  19th  of 
March,  the  defendants  wrote  to  the  plaintiff  as  follows :  — 

BiKMiNGHAM,  March  19,  1836. 
Sir,  —  There  appears  to  be  some  common  steel  ordered  not  yet  sent,  but 
which  is  much  wanted  ;  pray  attend  to  this  immediately,  and  oblige 

Yours  respectfully,  R.  &  G.  Thomas. 

On  the  7th  June  the  plaintiff's  traveller  again  applied  to  the  defend- 
ants for  payment  of  the  balance.  They  stated  that  the  steel  was  of 
the  wrong  size,  but  they  had  used  part  of  it,  and  requested  him  to 
change  the  remainder.  He  answered  that  he  woidd  represent  what 
they  said  to  the  plaintiff,  which  he  did.  On  the  25th  August  the  trav- 
eller again  saw  one  of  the  defendants,  and  pressed  for  a  settlement  of 
the  account,  when  the  defendant  said  they  would  never  pay  for  the 
Bteel,  for  it  was  a  wrong  size. 

On  the  part  of  the  defendants  it  was  contended  that  there  had  been 
no  acceptance  of  the  cast  steel  sufficient  to  bind  the  defendants  within 
the  17th  section  of  the  Statute  of  Frauds.  The  plaintiff's  counsel  had 
objected  that  such  defence  could  not  be  raised  under  the  general  issue, 
but  the  objection  was  overi'uled;  and  evidence  was  then  adduced  to 
shew  that  the  cast  steel  furnished  was  of  too  hard  a  temper  to  be 
wrought  into  the  tools  for  which  the  defendants  had  required  it,  and 
(as  to  the  steel  ordered  on  the  19th  of  December)  that  it  was  not  of 
the  thickness  sjjecified  in  the  order ;  and  that  the  defendants  had  used 
thirteen  pounds  only  of  the  cast  steel  in  experiments  on  its  quaUty. 
The  value  of  the  cast  steel  included  in  the  written  order  of  the  19th 
of  December  was  proved  to  be  £24.  It  appeared  that  the  prices  of 
cast  steel  varied  very  much  according  to  its  quality,  being  sometimes 
as  high  as  70s.  and  80s.  per  bundle. 

The  learned  judge,  having  stated  to  the  jury  that  the  question  in 
the  cause  was  whether  there  had  been  an  acceptance  of  the  cast  steel 
included  in  the  verbal  order  of  the  16th  of  November,  so  as  to  bind 
the  defendants,  left  it  to  them  to  say,  first,  whether  the  steel  supjDlied  was 
fit  for  the  edge-tool  trade ;  secondly,  whether,  if  it  was  not,  the  defend- 
ants had  agreed  nevertheless  to  take  it,  and  whether  their  letter  of  the 
10th  of  February  was  not  at  all  events  a  waiver  of  the  objection  as 
to  its  thickness  ;  and,  thirdly,  whether  more  of  it  Avas  used  than  was 
necessary  to  make  an  experiment  on  its  quahty.     The  jury  found  that 


SECT.   IV.]  ELLIOTT  V.   THOMAS.  147 

the  steel  was  according  to  order,  and  that  the  defendants  had  used 
more  of  it  than  was  necessary;  and  gave  a  verdict  for  the  phiintifi', 
damages  £112  3s.  9d. 

In  Michaehiias  term  Cresswell  obtained  a  rule  7iisi  to  reduce  the 
damages  to  £24,  or  for  a  new  trial,  on  the  grounds  that  there  was  no 
acceptance  of  the  cast  steel  included  in  the  verbal  order  within  the 
meaning  of  the  Statute  of  Frauds;  and  also  that  the  verdict  was 
against  the  evidence. 

Alexander  and  Wightman  now  shewed  cause.^  The  objection  aris- 
ing on  the  statute  was  avoided  by  shewing  that  the  cast  steel  and  the 
common  steel  were  the  subject  of  one  entire  order,  and  that  part  of 
the  goods  ordered,  the  common  steel,  was  accepted  without  objection. 
All  that  the  statute  requires  is  that  "  the  buyer  shall  accept  part  of 
the  goods  so  sold  and  actually  receive  the  same,"  But  there  was  also 
sufficient  evidence  of  the  acceptance  of  the  cast  steel.  The  letter  of 
the  10th  of  February  was  clearly  a  waiver  of  the  objection  as  to  the 
thickness.  Then  as  to  the  other  objection,  as  to  the  temjier,  that  was 
never  started  until  some  weeks  after  the  delivery  of  the  steel ;  and 
after  having  kept  it  so  long,  with  an  opportunity  of  making  the  neces- 
sary experiments,  the  defendants  had  no  right  to  repudiate  it.  The 
right  of  return  mi;st  be  exercised  within  a  reasonable  time ;  here  the 
goods  were  not  finally  rei^udiated  for  several  months.  Assuming  the 
goods  to  be  according  to  the  order,  as  the  jury  have  found,  what  can 
amount  to  an  acceptance  of  them  but  the  receiving  and  keeping  them 
and  using  a  part  ?  If  that  be  not  an  acceptance,  nothing  but  the  using 
the  whole,  or  reselling  the  goods,  would  be  sufficient  to  bind  the  buyer. 
In  Percival  v.  Blake,-  where  the  defendant  had  bought  an  article,  and 
suffered  it  to  remain  on  his  premises  for  two  months  without  examina- 
tion, and  then  found  that  it  Avas  unfit  for  use,  it  was  held  that  after 
that  length  of  time  he  could  not  avail  himself  of  the  objection  in 
answer  to  an  action  for  the  price  unless  it  appeared  that  some  deceit 
had  been  practised  on  him  as  to  the  quality  of  the  article.  But  it  may 
also  be  contended  that  if,  as  the  jury  have  found,  the  defendants  have 
used  more  of  the  steel  than  was  necessary  for  experiments,  they  thereby 
assumed  such  a  dominion  over  it  as  amounted  to  an  acceptance.  Okell 
V.  Smith,^  Street  v.  Blay.^  [Aldersox,  B.  It  is  a  startling  pro])osi- 
tion  that,  if  the  jury  think  the  party  has  used  too  much  for  experi- 
ments, he  must  take  and  pay  for  all.  If  so,  then  if  a  buyer  draws  too 
large  a  sample,  the  jury  thinking  so,  he  is  fixed  with  the  pro}Kn-ty  in 
the  whole  bulk.]  In  Street  v.  Blay  Lord  Tenterden  says,  in  delivering 
the  judgment  of  the  court:  ^  "  Wliatcver  may  be  the  right  of  the  pur- 

1  Tliey  gave  up  the  objection  that  the  defence  was  not  admissible  under  the  gen- 
eral issue. 

2  2  Car.  &  P.  514.  3  i  stark.  N.  P.  C.  107. 
*  2  B.  &  Adol.  456.  5  2  B.  &  Add.  463. 


148  /  ELLIOTT   V.    THOMAS.  [CHAP.    I. 

chaser  to  return  a  warranted  article  in  an  ordinary  ease,  there  is  no 
authority  to  shew  that  he  may  return  it  where  the  purchaser  has  done 
more  than  was  consistent  with  the  purpose  of  trial."  [Aldeesoin^,  B, 
There  the  purchaser  had  resold  the  horse ;  but  suppose  he  had  only 
ridden  him,  in  the  opinion  of  the  jury,  further  than  was  necessary  for 
trial,  wovild  that  fix  him  Avith  the  j^rice  ?  PaPvIvE,  B.  I  do  not  think 
this  part  of  the  case  will  serve  you.]  At  all  events,  there  was  suffi- 
'cient  proof  of  accejitance,  independent  of  the  finding  of  the  jury  on 
this  point.  Indeed,  unless  the  statement  of  the  price  of  the  goods  be 
held  a  necessary  ingredient,^  the  letter  of  the  10th  February  was  a  suf- 
ficient memorandum  in  writing  of  the  contract. 

Cressicell,  contra.  Even  suj^posing  goods  ordered  by  parol  to  be 
furnished  pursuant  to  the  order,  the  buyer  is  not  bound  to  take  them, 
the  contract  being  ^:)er  se  inoj^erative  by  the  Statute  of  Frauds.  On 
the  other  hand,  whether  they  answer  the  order  or  not,  if  the  buyer 
agree  to  take  the  goods  actually  supplied  he  is  precluded  from  saying 
that  there  was  no  acceptance.  The  first  question  therefore  is,  whether 
the  acceptance  of  the  common  steel  operated  as  an  acceptance  of  the 
cast  steel  also.  It  is  submitted  that  the  part  acceptance  meant  by  the 
statute  is  the  part  acceptance  of  one  entire  thing  of  the  same  character, 
60  that  the  taking  to  one  j^art  is  necessarily  a  taking  to  the  rest.  A 
delivery  of  part  never  amounts  to  a  delivery  of  the  whole,  unless  the 
parties  appear  to  have  so  intended  it.  It  cannot  at  all  events  be  said 
that  there  was  an  acceptance  of  the  whole,  so  as  to  preclude  the 
defendants  from  objecting  to  the  quality:  all  that  can  be  contended  is, 
that  there  Avas  a  waiver  of  a  written  contract  as  to  the  cast  steel.  In 
Thompson  v.  Maceroni,^  Avhere  goods  of  considerable  value  were  made 
to  order,  and  remained  in  the  possession  of  the  vendor  at  the  vendee's 
request,  with  the  exception  of  a  small  part  which  the  vendee  took 
away,  it  was  held  that  there  was  no  acceptance  of  the  residue  within 
the  Statute  of  Frauds.  [ Aldeeson,  B.  Price  v.  Lea  ^  is  an  authority 
against  you ;  there  it  seems  to  have  been  admitted  that,  if  there  had 
been  one  entire  contract  for  the  two  articles  sold  (cream  of  tartar  and 
lac  dye),  the  accejitance  of  one  would  have  been  an  acceptance  of 
both.]  That  case  is  not  a  direct  authority,  because  it  became  unnec- 
essary to  decide  the  point.  But  in  Hodgson  v.  Le  Bret  ^  Lord  Ellen- 
borough  ruled  that  the  appropriation  by  the  purchaser  to  his  own  use 
of  one  of  the  several  articles  bought  at  the  same  time  in  a  shop  was 
not  sufiicient  to  take  the  other  articles  out  of  the  statute.  [Paeke, 
B.  That  appears  to  have  been  on  the  ground  that  he  considered  them 
as  separate  contracts ;  but  that  was  overruled  in  Baldey  v.  Parker.^] 

1  But  see  Elmore  v.  Kingscote,  8  D.  &  R.  343,  5  B.  &  Cr.  583;  Hoadly  v.  M'Laine, 
10  Bing.  482,  4  M.  &  Scott,  340. 

2  3  B.  &  Cr.  1,  4  D.  &  R.  619.  ^  j  B.  &  Cr.  156,  2  D.  &  R.  29-5. 
«  1  Campb.  233.  6  3  d.  &  r.  220,  2  B.  &  C.  37. 


SECT.    IV.]  ELLIOTT   V.    THOMAS.  149 

[He  then  proceeded  to  argue  that  the  evidence  did  not  warrant  the 
findino;  of  the;  jury;  and  on  the  suggestion  of  the  court  it  was  agreed 
that  the  damages  should  be  reduced  to  £24,  the  phiintift'  taking  back 
the  cast  steel  included  in  the  first  order.] 

Pakke,  B.  The  first  question  in  this  case  is  one  of  some  importance, 
but  none  of  the  court  entertain  any  doubt  upon  it.  It  is  whether  there 
was  a  sufficient  part  acceptance  of  the  goods  ordered  in  Xovember  to 
take  the  case  out  of  the  Statute  of  Frauds.  That  Avas  a  joint  order 
for  common  steel  and  cast  steel :  the  effiict  of  such  joint  order,  unless 
explained,  would  be  to  make  it  one  entire  contract,  since  we  must 
assume  that  one  article  would  not  have  been  furnished  at  one  stipu- 
lated price  unless  the  other  had  been  agreed  to  be  paid  for  at  the  other 
price.  There  was  no  explanation  in  this  case,  and  therefore  it  must  be 
taken  to  be  a  joint  contract.  Then  one  of  the  articles,  the  common 
steel,  was  certainly  accepted;  and  the  question  is,  whether  that 
acceptance  is  sufficient  to  take  the  case  out  of  the  statute  as  to  the 
cast  steel  also,  and  I  am  clearly  of  opinion  that  it  is.  In  order  to 
determine  the  question  the  best  course  is  to  look  at  the  words  of  the 
statute  itself  Those  words  are  [sttiting  them].  The  object  of  the 
statute  was  to  prevent  perjury  in  proving  by  parol  a  contract  which 
was  never  made  in  fact :  but  none  of  its  provisions  effi:;ctually  exclude 
peijury ;  they  only  intend  to  diminish  the  probability  of  its  being 
committed.  There  may  be  perjury  in  swearing  to  the  handwriting  of 
the  party  charged,  or  in  proving  the  agency  of  the  party  signing  on 
his  behalf;  neither  does  the  acceptance  of  the  goods,  or  the  giving  of 
earnest,  operate  as  a  certain  prevention  of  peijury.  The  same  obser- 
vation applies  to  Lord  Teuterden's  Act,  9  Geo.  4,  c.  14,  under  which 
part  payment  of  principal  or  interest  is  sufficient  to  take  a  case  out  of 
its  operation.  Looking  then  at  the  words  of  the  statute,  and  assuming 
that  there  is  but  one  contract,  I  am  of  opinion  that  there  was  an 
acceptance  of  part  of  the  goods  sold  within  the  words  and  also  within 
the  principle  of  the  statute.  I  should  have  been  of  this  opinion  sup- 
posing that  there  were  no  decided  case  on  the  subject.  Several  cases 
have,  however,  been  referred  to  on  the  part  of  the  defendants  for  the 
purpose  of  j)roving  that  this  was  not  a  sufficient  part  acceptance.  In 
Thompson  v.  Maceroni  the  court  held  that  the  acceptance  of  a  small 
part  of  goods  to  the  value  of  £144  made  to  order  Avas  not  sufficient 
to  enable  the  seller  to  recover  against  the  buyer  for  the  price  of  the 
whole  as  for  goods  sold  and  delivered.  The  court  there  say  in  effi^ct 
that  there  was  no  proof  of  actual  deliAcry,  nor  such  proof  of  actual 
acceptance  as  to  take  the  case  out  of  the  Statute  of  Frauds ;  ?'.  e.,  the 
defendant  had  not  accepted  the  whole  so  as  that  a  count  for  goods 
sold  and  delivered  could  be  maintained  for  the  whole.  That  case 
seems  to  me  to  have  turned  entirely  on  the  form  of  the  action.  The 
plaintiff  could  not  succeed  unless  there  was  a  delivery  of  the  whole,  or 


150  ELLIOTT   V.    THOMAS.  [CHAP.    I. 

at  least  an  actual  acceptance  and  receipt  of  the  whole,  so  as  to  be 
equivalent  to  a  delivery.  In  Hodgson  v.  Le  Bret  Lord  Ellenborough 
formed  his  opinion  apparently  on  the  ground  of  there  having  been 
separate  contracts ;  but  that  case  is  greatly  shaken  by  Baldey  v. 
Parker,  which  shews  that  the  contract  in  Hodgson  v.  Le  Bret  ought 
to  have  been  considered  as  a  joint  one,  and  that  the  act  of  the  pv;r- 
chaser's  writing  her  name  on  the  goods  was  no  acceptance.  Hodgson 
V.  Le  Bret  therefore  is  no  binding  authority.  No  other  case  was  cited 
in  argument  which  bears  upon  the  point ;  and  that  of  Price  v.  Lea, 
referred  to  by  my  brother  Alderson,  is  rather  an  authority  the  other 
way.  Holroyd,  J.,  there  says :  "  There  was  not  then  one  entire  contract 
for  both  the  articles,  so  as  to  make  the  acceptance  of  the  one  the 
acceptance  of  the  whole."  The  inference  therefore  is  (I  do  not  say 
it  is  conclusive)  that,  if  the  contract  had  been  entire,  the  accej^tance 
of  part  would  have  been  deemed  sufficient  to  take  the  case  out  of  the 
statute  as  to  the  whole.  I  am  of  opinion  therefore  that  there  was  in 
this  case  a  sufficient  acceptance  of  i^art  to  bring  the  case  within  the 
exception  of  this  section  of  the  Statute  of  Frauds ;  and  that  the 
defendants  may  be  made  responsible  uj^on  this  joint  contract  for  two 
articles  by  the  receipt  of  one,  jjrovided  both  the  articles  were  furnished 
according  to  that  contract,  and  were  such  as  ought  to  have  been 
delivered  pursuant  to  it.  That  was  to  be  proved  by  the  plaintiff,  and 
he  did  give  evidence  of  it  for  the  consideration  of  the  jury ;  but,  as 
we  are  not  altogether  satisfied  with  the  propriety  of  the  verdict  in 
that  respect,  it  will  be  better  for  the  parties  to  enter  into  some  com- 
promise to  avoid  the  necessity  of  a  new  trial,  which  we  otherwise 
might  be  disposed  to  grant. 

BoLLAND,  B.  I  am  of  the  same  opinion,  —  that  there  was  a  sufficient 
part  acceptance.  The  case  of  Hodgson  v.  Le  Bret  is  not  reconcilable 
with  Baldey  v.  Parker,  and  must  be  considered  as  of  doubtful 
authority. 

Aldekson",  B.  I  am  of  the  same  opinion.  The  words  of  the 
statute  appear  to  me  quite  decisive  of  the  question.  What  are  "  the 
goods  so  sold  ?  "  —  the  goods  sold  by  that  contract.  If  the  contract 
be  for  two  classes  of  goods,  does  not  he  accept  part  who  accepts  one 
class  ? 

GuRNEY,  B.  I  am  of  the  same  opinion.  Part  of  the  goods 
included  in  the  contract  was  accepted ;  that  was  a  sufficient  accept- 
ance of  the  rest ;  and  the  only  question  remaining  was,  whether  they 
were  according  to  order. 

Hide    absolute   by  conse^it    to  reduce   the   damages   to  £24,  the 
defendants  undertaking  to  return  all  the  steel  complained  of. 


SECT.    IV.]  WILLIAMS   V.    BURGESS.  151 

WILLIAMS   V.  BURGESS. 

In  the  Queen's  Bench,  June  7,  1839. 

[Reported  in  10  Adolphus  .j-  Ellis,  499.] 

Assumpsit.  Declaration  stated  that,  in  consideration  plaintiff  would 
sell  and  deliver  to  defendant  a  mare,  wliieli  i)laintifF  supposed  to  l^e  in 
foal,  for  £-20,  subject  to  the  condition  that  if  the  mare  should  prove  to 
be  in  foal  defendant  should,  on  receiving  £12  from  i)laintiflf,  return  it 
to  plaintiff  on  request,  defendant  promised,  if  it  proved  to  be  in  foal,, 
and  plaintiff  paid  £12,  to  return  it.  Averment  of  sale  and  delivery  of 
the  mare  for  £20,  subject  to  the  above  condition ;  that  it  proved  to  be 
in  foal;  that  plaintiff  then  tendered  to  defendant  £12,  and  requested 
him  to  return  the  mare ;  but  defendant  refused  so  to  do.  Plea,  non 
assumpsit. 

On  the  trial  at  the  York  summer  assizes,  1837,  before  Parke,  B.,  the 
plaintiff  proved  a  verbal  agreement  as  stated  above,  and  the  accept- 
ance of  the  mare  and  payment  of  the  money  by  the  defendant.  It 
was  objected  on  the  part  of  the  defendant  that  the  agreement  on 
which  the  action  was  brought  was  a  distinct  agreement  for  a  re-sale  of 
the  mare  within  §  17  of  the  Statute  of  Frauds,  29  C.  2,  c.  3,  and  ought 
to  have  been  in  writing.  But  the  learned  judge,  considering  it  to  be 
merely  a  qualification  of  the  original  contract  of  sale  which  was  exe- 
cuted, overruled  the  objection,  reserving  leave  for  the  defendant  to 
move  to  enter  a  nonsuit,  and  for  the  plaintifi'to  object  that  this  defence 
could  not  be  shewn  upon  the  plea  of  non  assumpsit.  There  was  a 
verdict  for  the  plaintifi'. 

In  Michaelmas  term,  1837,  Knowles  obtained  a  rule  nisi  to  set  aside 
the  verdict  on  the  points  reserved,  and  enter  a  nonsuit. 

Alexander  now  shewed  cause.  The  objection  is  not  open  upon  the 
general  issue.  [Upon  this  point  Elliott  v.  Thomas^  on  §  17  of  the 
Statute  of  Frauds,  and  Buttemere  v.  Hayes-  on  the  4th  section,  were 
cited ;  but,  as  the  court  pronounced  no  opinion  upon  it,  the  argument 
is  here  omitted.]  The  contract  for  re-sale  is  not  a  distinct  and  inde- 
pendent one,  but  part  of  the  original  one,  which  Avas  made  good  by 
acceptance  of  the  mare  and  payment  of  the  price.  That  the  delivery 
was  sufficient  to  take  the  case  out  of  the  statute  is  shewn  by  many 
authorities.  \_Knoicles,  for  the  defendant,  stated  that  he  did  not  dis- 
pute those  authorities,  and  admitted  that  the  original  agreement  was 
made  good  by  delivery.]  Then  the  condition  to  redeliver  cannot  make 
it  void.     A  state  of  things,  contemplated  by  the  original  contract  and 

1  3  M.  &  W.  170.  '^  5  M.  &  W.  456. 


152  WILLIAMS   V.    BURGESS.  [CHAP.   I. 

parcel  of  it,  has  arisen,  which  now  entitles  the  plaintiff  to  sue  Avithout 
any  fresh  payment  or  writing. 

ITnoicles,  contra.  There  are  two  distinct  contracts  ;  one  is  executed ; 
the  other  executory.  Both  are  within  the  statute,  and  the  latter  can- 
not be  enforced  for  Avant  of  the  proper  formalities.  [Lord  Denman, 
C.  J.  Suppose  the  whole  had  been  in  writing  at  first,  would  it  require 
two  stamps  ?]  Perhaps  not ;  but  that  is  not  a  proper  test.  It  is  certain 
that  an  agreement  may  contain  two  distinct  stipulations  capable  of 
being  treated  as  distinct  contracts,  of  Avhich  one  may  be  void  and  the 
other  good.  Wood  v.  Benson.^  [Patteson-,  J.  I  think  that,  when 
th:it  ease  has  been  cited,  the  courts  have  not  been  disposed  to  extend 
it.]  There  are  two  agreements  entered  into  at  the  same  time.  Sup- 
pose the  agreement  had  stipulated  that  in  a  certain  event  the  defend- 
ant should  sell  and  deliver  to  the  plaintiff  another  horse,  or  the  foal 
itself:  a  writing  would  then  have  been  necessary ;  for  there  would  be 
no  acceptance  of  any  thing  by  the  buyer,  but  only  by  the  defendant,  the 
seller;  yet  it  cannot  in  principle  make  any  difference  that  the  horse  to 
be  sold  happens  to  be  the  same.  Watts  v.  Friend  ^  is  nearly  in  point. 
There  the  agreement  was  that  the  plaintiff  should  furnish  the  defend- 
ant with  seed ;  that  the  defendant  should  sow  it  on  his  own  land,  and 
should  sell  and  deliver  to  the  plaintiff  the  whole  crop  of  seed  produced 
therefrom.  The  plaintiff  supplied  the  seed;  and  the  defendant  accepted 
and  sowed  it,  but  refused  to  sell  the  crop  according  to  the  agreement. 
It  was  held  that,  as  the  agreement  was  not  in  writing,  the  Statute  ofy 
Frauds  was  a  defence.  Yet  it  might  have  been  urged  that  the  con- 
tract required  no  writing,  because  there  was  a  delivery  of  seed  to  the 
defendant. 

Lord  Denman,  C.  J.  This  is  a  sale  by  the  plaintiff  to  the  defendant 
on  particular  terms,  one  of  which  is  a  return  of  the  article  sold  in  a 
certain  event ;  the  acceptance  of  the  thing  sold  takes  the  Avdiole  con- 
tract out  of  the  statute.  The  case  differs  from  Watts  v.  Friend,^  where 
the  re-sale  was  of  a  different  thing. 

LiTTLEDALE,  J.  The  plaintiff  is  willing  to  part  with  his  property  on 
certain  conditions  which  are  part  of  the  agreement.  It  is  not  an  inde- 
pendent contract  of  sale  on  which  he  sues,  but  the  original  contract, 
which  was  a  qualified  sale.  It  is  like  the  case  of  the  delivery  of  a  horse 
on  trial ;  Avhen  the  buyer  returns  it  after  trial,  it  is  not  a  re-salc.  I  have 
not  the  slightest  doubt  on  the  case. 

Pattesoi^,  J.  It  is  one  entire  contract,  and  not  two  distinct  con- 
tracts. It  is  a  sale  on  the  terms  that  the  mare  and  part  of  the  price 
should  be  returned  in  a  certain  event.  If  indeed  the  defendant  had 
agreed  to  sell  to  the  plaintiff  the  foal,  the  case  might  have  been  differ- 
ent.    In  Watts  V.  Friend  *  the  bargain  was  to  sell  to  the  plaintiff  an 

I  2  Cr.  &  J.  94 ;  s.  c.  2  Tyrw.  93.  '•^  10  B.  &  C.  446. 

3  10  B.  &  C.  446.  4  10  B.  &  C.  446. 


SECT.    IV.]  WRIGHT   V.   PERCIVAL.  153 

entirely  diftercnt  thing,  and  not  merely  to  return  to  him  the  same 
article.   Wood  v.  Benson  ^  shews  only  that  there  may  be  two  contracts 
on  one  piece  of  paper,  of  wliich  one  may  be  bad,  the  other  good. 
Williams,  J.,  concurred.  Hule  discharged. 


WRIGHT   AXD   Otiikhs   v.  PERCIVAL. 

In  the  Queen's  Bench,  June  13,  1839. 

{Reported  in  8  Law  Journal  Reports,  New  Series,  Queen's  Bench,  258.] 

Assumpsit  on  a  special  contract  for  not  accepting  a  carriage  made 
by  the  plaintiffs  for  the  defendant ;  with  comits  for  goods  sold,  work 
and  labor,  and  on  an  account  stated.  The  defendant,  amongst  other 
pleas,  pleaded  no/i  assumpsit,  and  th;il  the  plaintiffs  did  not  offer  to 
deliver  the  carriage  to  the  defendant,  nor  request  her  to  accejit  the 
same  and  })ay  the  price  thereof. 

At  the  trial  before  Pattcson,  J.,  at  the  ]Middlcsex  sittings  in  Hilary 
term,  1838,  it  appeared  that  after  the  carriage  had  been  finished  the 
defendant  and  her  two  sisters  called  at  the  manufiictory  of  the  plain- 
tiffs, briii<>:in<>"  with  them  a  cover  for  the  hind  seat  and  a  set  of  traces, 
which  the  carriage  had  been  previously  made  to  fit.  One  of  the  plain- 
tiffs said  the  carriage  was  complete ;  the  defendant  and  her  sisters  got 
into  it,  and  said  it  was  a  vei-y  nice  one.  They  then  desired  the  plain- 
tiffs to  order  a  pair  of  post-horses  to  take  the '  carriage  home,  stating 
that  they  would  call  at  half-past  four;  they  added  that  they  had 
brought  a  cover  to  i)ut  over  the  hind  scat,  and  directed  that  it  should 
be  put  over  twice  doubled.  The  cover  was  pait  over  the  hind  seat  in 
their  presence,  and  agreeably  to  their  directions.  The  afternoon  proved 
wet,  and  at  live  o'clock  the  defendant  and  her  sisters  came  to  the  plain- 
tiffs and  stated  their  intention  not  to  take  the  carriage  home  that 
night,  owing  to  the  ])adness  of  the  weather.  The  defendant  aflerwards 
refused  to  i)ay  the  price  demanded  by  the  plaintiffs,  and  did  not  take 
the  carriage  away.  The  question  at  the  trial  was,  whether  these  facts 
constituted  a  sufficient  acceptance  of  the  carriage  to  satisfy  the  Statute 
of  Frauds.  The  jury  found  a  verdict  for  the  plaintiffs  on  the  common 
count  for  goods  sold,  with  damages  £85,  leave  being  given  to  the 
defendant  to  move  to  enter  a  nonsuit. 

ICelly  having  obtained  a  rule  for  this  inirpose, 

ICaowles  shewed  cause,  and  contended  that  the  facts  of  the  case 
afforded  sufficient  evidence  of  an  acceptance  of  the  carriage  by   the 

1  2  Cr.  &  J.  94  ;   s.  c.  2  Tyrw.  93. 


154  WRIGHT   V.    PERCIVAL.  [CHAP.   I. 

defendant.  In  the  earlier  cases  very  little  evidence  was  held  sufficient 
to  warrant  the  jury  in  finding  an  acceptance.  Elmore  v.  Stone,^  Blenk- 
insop  V.  Clayton.2  In  Smith  v.  Chance  ^  Holroyd,  J.,  says :  "  A  party 
cannot  maintain  an  action  for  the  price  of  goods  sold  and  delivered 
until  he  has  either  delivered  them  or  done  something  equivalent  to 
delivery ;  as,  for  instance,  if  he  has  put  it  in  the  vendee's  power  to 
take  away  the  goods  himself"  In  Tempest  v.  Fitzgerald,"  which  will 
be  cited  on  the  other  side,  the  plaintiiFhad  not  parted  with  the  posses- 
sion or  control  of  the  horse.  Chaplin  v.  Rogers  ^  is  in  point.  In  the 
present  case  there  has  been  a  specific  appropriation  of  the  carriage  by 
the  defendant,  and  the  property  in  it  passed  to  her.  He  cited  Baines 
V.  Jevons,*'  Bloxam  v.  Sanders,"^  Tarhng  v.  Baxter.^ 

Hayward^  contra.  There  has  been  no  acceptance  in  this  case  suffi- 
cient to  satisfy  the  Statute  of  Frauds.  It  was  correctly  laid  down  by 
the  learned  judge  at  the  trial  that  the  test  of  the  acceptance  was 
whether  the  seller  had  parted  with  his  lien.  In  this  case  he  clearly  had 
not.    Smith  v.  Sui-man.° 

[Patteson,  J.  I  have  no  recollection  of  having  laid  down  the  law 
in  that  manner.  I  think  I  said  that,  if  the  jury  believed  the  transac- 
tion respecting  the  putting  on  of  the  cover,  there  was  a  sufficient 
acceptance.  I  may  perhaps  have  asked  them  to  consider  whether 
the  defendant  had  made  the  carriage  her  own  and  whether  the  lien 
was  gone.] 

There  had  been  no  change  of  possession  here.  In  Elmore  v.  Stone 
there  was  a  change  of  possession,  and  that  circumstance  is  relied  on  in 
the  judgment  of  the  court.  In  Tempest  v.  Fitzgerald  the  plaintiff 
had  parted  with  the  possession  of  the  horse.  Acts  of  ownership  are 
not  decisive  proofs  of  acceptance.  Baldey  v.  Parker,^''  Maberley  v. 
Sheppard,"  Smith  v.  Surman.  In  this  case  there  has  been  no  delivery. 
It  was  held  in  Boulter  v.  Arnott  ^'-  that  more  is  necessary  to  constitute 
a  delivery  than  to  make  an  acceptance  under  the  Statute  of  Frauds. 
The  plaintiffs  are  not  entitled  to  retain  the  verdict. 

Lord  Denman,  C.  J.  The  verdict  was  right  on  the  question, 
whether  an  action  for  goods  sold  and  delivered  could  be  maintained, 
for  there  Avas  a  complete  delivery  and  acceptance.  Where  a  buyer  has 
the  full  control  over  the  goods  in  question,  and  the  power  of  taking 
them  away,  the  jury  are  fully  justified  in  finding  a  complete  delivery. 
My  brother  Patteson  is  supposed  to  have  said  that  there  could  not  be 
an  acceptance  in  this  case,  because  the  vendor's  lien  for  the  price  still 

I  1  Taunt.  458.  ^  7  Taunt.  597.  3  2  B.  &  Aid.  753. 

4  3  B.  &  Aid.  680.  5  1  East,  192.  <*  7  Car.  &  Pay.  288. 

7  4  B.  &  C.  941.  8  6  B.  &  C.  360 ;  s.  c.  5  Law  J.  Rep.  K.  B.  164. 

9  9  B.  &  C.  561 ;  s.  c.  7  Law  J.  Rep.  K.  B.  296. 
10  2  B.  &  C.  37  ;  s.  c.  1  Law  J.  Rep.  K.  B.  229. 

II  10  Bing.  99  ;  s.  c.  2  Law  J.  Rep.  (n.  s.)  C.  P.  181. 

12  3  Tyr.  267 ;  s.  c.  1  Cr.  &  M.  333,  2  Law  J.  Rep.  (n.  s.)  Exch.  97. 


SECT.    IV.]  DODSLEY    V.  VARLET.  155 

continued ;  but  it  is  clear  that  this  is  not  the  test  of  the  acceptance, 
and  he  could  not  have  used  such  language.  His  observations  may  have 
been  founded  on  the  words  of  Parke,  J.,  in  Smith  v.  Surman ;  but  in 
that  case  the  learned  judge  considers  the  lien  not  as  a  test,  but  merely 
as  a  circumstance  to  be  considered.  And  it  cannot  be  a  test,  because 
it  does  not  go  to  the  question  of  delivery.  My  brother  Patteson  must 
have  said  tliat,  if  th(>  jury  thought  the  delivery  complete,  then  the 
goods  would  be  sold  and  delivered.  The  other  questions  in  this  case 
are  not  necessary  to  be  decided.     The  rule  must  be  discharged. 

LiTTLEDALE,  J.  The  qucstion  in  this  case  is,  whether  a  delivery 
was  actually  made.  I  think  it  was,  and  that  the  defendant  accepted 
the  carriage  by  putting  on  the  cover.  Her  intention  moreover  was  to 
take  it  away,  and  she  was  prevented  from  doing  so  only  by  the  unfav- 
orable state  of  the  weather.  She  exercised  an  act  of  ownership,  and 
it  was  for  the  jury  to  say  whether  there  was  a  delivery  or  not.  It  is 
not  necessary  to  consider  the  other  questions. 

Patteson,  J.  I  cannot  exactly  recollect  what  I  said  at  the  trial. 
But  if  I  put  it  to  the  jury  that  there  could  have  been  no  delivery 
because  the  plaintifts  had  not  parted  Avith  their  hen,  I  was  wrong,  and 
the  jury  found  a  right  verdict  in  spite  of  my  misdirection. 

Williams,  J.  Cases  of  this  kind  depend  on  their  own  peculiar  cir- 
cumstances. Here  the  facts  of  the  case  shew  that  the  plaintiffs  gave 
and  the  defendant  received  possession  of  the  carriage,  although  on 
account  of  the  unfavorable  weather  the  latter  did  not  take  it  away  at 
the  time.  The  fact  of  a  lien  being  reserved  is  not  a  complete  criterion 
of  acceptance ;  it  is  a  cii-cumstance,  but  it  is  not  the  governing  feature 
of  the  case.  In  Elmore  v.  Stone  the  delivery  was  complete ;  the  case 
was  the  same  as  if  the  horses  had  been  put  into  the  defendant's  own 
stables.  But  was  Elmore  compellable  to  part  with  the  horses  until  he 
had  got  the  price  of  them?  Clearly  not.  Well,  then,  that  shews  that 
the  lien  is  not  a  perfect  test  because  the  lien  was  not  parted  with, 
although  there  was  a  full  dehvery.  In  the  present  case  also  there 
was  a  complete  delivery.     The  rule  must  be  discharged. 

Hide  discharged. 


DODSLEY   V.  VARLEY. 

In  the  Queen's  Bench,  November  5  &  24,  1840. 

[Reported  in  12  Adolphus  cj-  Ellis,  632.] 

Assumpsit  for  goods  bargained  and  sold.     Plea,  ?ion  assumpsit.     On 
the  trial  before  Littledale,  J.,  at  the  last  Nottingham  assizes,  it  appeared 


156  DODSLEY    V.    VARLEY.  [CHAP.   I. 

that  the  action  was  brou,o;ht  for  the  price  of  wool  bought  of  plaintiff 
by  defendant  through  his  agent.  After  the  purchase  the  wool  was 
deposited  on  the  premises  of  a  person  named  Townrow,  under  circum- 
stances which  will  appear  by  the  judgment  of  the  court ;  and  it  had 
not  been  removed  thence  or  paid  for  when  the  action  was  brought. 
The  defendant's  counsel  urged,  among  other  objections,  that  the  evi- 
dence did  not  show  a  delivery  and  acceptance  within  stat.  29  Car.  2, 
c.  3,  §  17.     Verdict  for  the  plaintiff. 

inil  now  moved,  according  to  leave  reserved,  for  a  rule  to  show 
cause  why  a  nonsuit  should  not  be  entered  on  the  points  taken  at  the 
trial.  As  to  the  delivery,  he  contended  that  none  had  taken  place, 
because  the  vendor  had  never  lost  his  lien ;  and  he  cited  Baldey  v. 
Parker,^  Smith  v.  Sunnan,-  and  Maberley  v.  Sheppard.''  [The  judgment 
of  the  court  renders  any  further  statement  unnecessary.] 

Cur.  adv.  vult. 

Lord  Denman,  C.  J.,  in  the  same  term  (November  24th)  delivered 
judgment. 

In  this  case,  which  was  moved  on  three  grounds  for  a  nonsuit,  we 
have  examined  our  brother  Littledale's  notes,  and  are  of  opinion  there 
should  be  no  rule.     The  first  and  second  grounds  were  that  there  was 
no  proof  of  agency  in  Bamford,  by  whom  the  wools,  the  sxibject-matter 
of  the  action,  were  bought ;  or,  if  there  were,  that  such  agency  had 
been  countermanded  before  the  contract  was  completed  so  as  to  satisfy 
the  Statute  of  Frauds.     (It  is  unnecessary  to  report  the  judgment  on 
these  points,  which  turned  merely  on  the  facts,  and  was  in  favor  of  the 
plaintiff.)     It  was  contended,  thirdly,  that  there  was  no  contract  com- 
pleted by  delivery  and  acceptance  so  as  to  satisfy  the  Statute  of  Frauds. 
The  facts  were,  that  the  wool  was  bought  while  at  the  plaintiff's  ;  the 
price  was  agreed  on,  but  it  would  liave  to  be  weighed :  it  was  then 
removed  to  the  warehouse  of  a  third  person,  where  Bamford  collected 
the  wools  which  he  purchased  for  defendant  from  various  persons,  and 
to  which  place  the  defendant  sent  sheeting  for  the  packing  up  of  such 
wools.      There   it  was  weighed  together  with  the  other  wools,  and 
packed,  but  it  was  not  paid  for.     It  Avas  the  usual  course  for  the  wool 
to  remain  at  this  place  till  paid  for.     No  wish  was  expressed  to  take 
the  opinion  of  the  jury  on  the  fact  of  agency,  the  defendant's  counsel 
acquiescing  in  that  of  the  judge,  provided  the  circumstances  would 
amount  to  it  in  point  of  law.     We  agree  that  they  might ;   therefore 
all  these  must  be  taken  to  be  the  acts  of  the  defendant.     Then  he  has 
removed  the  plaintiff's  wool  to  a  place  of  deposit  for  his  own  wools  ; 
he  has  weighed  it  with  his  other  purchases  of  wool ;  he  has  packed  it 
in  his  own  sheeting :  every  thing  is  complete  but  the  payment  of  the 
price.     It  was  argued  that,  because  by  the  course  of  dealing  he  was 
1  2  B.  &  C.  37.  2  9  B.  &  C.  561.  3  iq  Bing.  99. 


SECT.  IV.]  EDAN   V.    DUDFIELD.  157 

not  to  remove  the  wool  to  a  distance  before  payment  of  the  price,^  the 
property  had  not  passed  to  Mm,  or  that  tlie  ])hiiiitiff  retained  such  a 
lien  on  it  as  was  inconsistent  with  the  notion  of  an  actual  delivery. 
We  think  that,  upon  this  evidence,  the  place  to  which  the  avooIs  were 
removed  must  be  considered  as  the  defendant's  warehouse,  and  that  he 
was  in  actual  possession  of  it  there  as  soon  as  it  Avas  weighed  and 
packed  ;  that  it  was  thenceforward  at  his  risk,  and  if  burnt  must  have 
been  paid  for  by  him.  Consistently  Avith  this,  however,  the  plaintiff 
had  not  what  is  commonly  called  a  lien,  detenninable  on  the  loss  of 
possession,  but  a  special  interest,  sometimes,  but  improperly,  called  a 
lien,  growing  out  of  his  original  ownershii?,  independent  of  the  actual 
possession,  and  consistent  Avith  the  property  being  in  the  defendant. 
This  he  retained  in  respect  of  the  term  agreed  on,  that  the  goods  should 
not  be  removed  to  their  ultimate  place  of  destination  before  payment. 
But  this  lien  is  consistent,  as  we  have  stated,  Avith  the  possession 
having  passed  to  the  buyer,  so  that  there  may  have  been  a  delivery  to 
and  actual  receipt  by  him.  This,  Ave  think,  is  the  proper  conclusion 
upon  the  present  evidence ;  and  there  will  be  no  rule. 

Hide  refused'} 


EDAN  V.  DUDFIELD. 

In  the  Queen's  Bench,  January  12,  1841. 

[Reported  in  1  Queen's  Bench  Reports,  302.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Pleas.    1.  As  to  all  but  £1  9s.  2c?.,  parcel  &c.,  nunqxiam  indebitatus. 
Issue  thereon. 

2.  As  to  the  same,  a  set-off.  Replication,  denying  the  debt  set  off. 
Issue  thereon. 

3.  As  to  the  £1  9s.  2f?.,  tender  of  the  same ;  Avhich  the  plaintiff  took 
out  of  court,  and  acknoAvledged  satisfaction  pro  tanto. 

On  the  trial  before  Lord  Dcnman,  C.  J.,  at  the  Middlesex  sittings 
after  Hilary  term,  1839,  it  appeared  that  the  defendant  Avas  employed 
by  the  plaintiff  to  clear  goods  for  him  at  the  custom-house,  and  was 
accustomed  to  enter  goods  of  the  plaintiff,  and  did  actually  enter  the 
goods  noAV  in  question  (German  toys),  then  belonging  to  the  plaintiff, 
in  his  OAvn  name.  In  the  beginning  of  April,  1838,  plaintiff  Avas  in 
defendant's  debt  to  the  amount  of  about  £50,  and  defendant  pro])osed 

1  TJie  evidence  of  Bamford  the  agent  was  (after  stating  tlie  deposit  at  Town- 
row's)  :  It  is  a  regular  thing  for  the  wool,  wlicu  bought,  to  remain  wliere  it  is  kept 
until  it  is  paid  for. 

2  See  Blackburn  on  Sale,  pp.  38-41.  —Ed. 


158  EDAN   V.    DUDFIELD.  [CHAP.   I. 

to  plaintiff  that  the  goods  should  be  sold,  and  that  defendant  should 
retain  his  debt  out  of  the  proceeds ;  the  plaintiff  assented  to  this,  and 
gave  defendant  a  written  authority  to  sell  them.  Afterwards  and 
before  any  sale,  defendant,  in  conversation  with  an  agent  of  plaintiff, 
said  that  he  would  keejD  the  goods  himself  at  the  invoice  price,  less  a 
discount  of  15  per  cent.:  this  was  communicated  to  plaintiff.  The 
goods  were  subsequently  sold  by  defendant  about  the  end  of  April. 
Afterwards  the  defendant  delivered  an  account  cuiTent  to  the  plaintiff, 
in  which  was  an  item,  under  date  of  April,  1838,  "Two  cases  of  toys, 
&c.,  sold  for  £120."  The  counsel  for  the  defendant  objected  that  there 
was  no  acceptance  to  satisfy  §  17  of  the  Statute  of  Fi-auds ;  but  the 
Lord  Chief  Justice  held  that  there  was  a  case  for  the  jury,  reserving 
leave  to  move  for  a  nonsuit.  Ve7'dict  for  lylaintiff. 

Kelly,  in  Easter  term,  1839,  obtained  a  rule  nisi  for  a  nonsuit,  and 
also  for  a  new  trial,  on  affidavit,  and  on  the  ground  that  the  verdict 
was  against  the  evidence.-^     In  the  last  term  ^ 

Thomas  shewed  cause.  There  was  a  sufficient  acceptance  to  satisfy 
§  17  of  the  Statute  of  Frauds,  29  C.  2,  c.  3.  The  goods  being  in  the 
hands  of  the  defendant,  he  could  do  no  more  towards  an  acceptance 
than  acknowledge  the  character  in  which  he  held  them.  That  he  did 
by  agreeing  to  become  the  purchaser.  No  further  act  of  ownership 
was  necessary.  Besides,  the  defendant  has  pleaded  a  set-off  and 
tender,  and  can  no  longer  dispute  the  contract.  One  contract  only 
was  suggested ;  and  therefore  the  tender  of  £1  9s.  'Id.  is  referable  to 
that,  and  constitutes  an  admission,  like  payment  into  court,  the  effect 
of  which  is  shewn  by  cases  collected  in  the  note  to  Rucker  ^.  Palsgrave.^ 
[Lord  Denmax,  C.  J.  The  rule  now  is,  that  payment  and  tender 
operate  only  as  an  admission  of  some  contract  to  the  amount  paid  or 
tendered.*] 

Kelly,  contra.  The  goods  were  in  the  hands  of  the  defendant  as 
agent  for  the  plaintiff:  at  that  time  there  was  no  acceptance.  Then 
all  that  passed  afterwards  was  a  verbal  contract.  To  construe  this 
as  a  compliance  with  §  17  of  the  Statute  of  Frauds  would  be  to 
introduce  the  very  mischief  against  which  that  enactment  was 
directed.  The  buyer  must  "  accept  part  of  the  goods  so  sold  and 
actually  receive  the  same."  There  has  been  no  actual  receipt:  the 
attempt  is  to  imply  a  virtual  receipt  from  a  verbal  contract.  Some- 
thing must  take  place  in  fact,  not  in  words  merely,  inconsistent  with 
the  previous  holding.  [Lord  Denman,  C.  J.  Suppose  a  party 
intrusted  with  goods  for  sale  were  to  sell  them,  accompanying  the 

1  The  argument  for  the  new  trial  is  omitted. 

2  Novemher  17,  1840.  Before  Lord  Denman,  C.  J.,  Littledale,  Williams,  and  Cole- 
ridge, JJ. 

3  1  Campb.  557.  *  See  note  (a)  to  Jones  r.  Flint,  10  A.  &  E.  757. 


SECT.    IV.]  EDAN   V.    DUDFIELD.  159 

Bale  witli  .1  declaration  that  the  sale  was  on  his  own  account:  as 
against  him,  would  not  that  be  evidence  that  he  had  previously 
accepted  ?  Does  not  your  argument  tend  to  shew  that  the  Statute  of 
Frauds  ought  to  have  gone  flirther  than  it  does,  and  have  required 
written  evidence  of  the  acceptance?]  This  is  a  case  in  which  an 
actual  acceptance  was  impossible  ;  and  therefore  the  only  method  of 
satisfying  the  statute  was  by  a  written  contract.  In  NichoUe  v.  Plume  ^ 
it  was  held  that  a  constructive  acceptance  was  insufficient,  on  the 
authority  of  Hanson  v.  Annitage.^  In  Phillips  v.  Bistolli  ^  it  is  laid 
down  that  the  jury  must  be  satisfied  of  a  delivery  and  an  actual 
acceptance.  Cur.  adv.  vult. 

Lord  DE^-i^rAK,  C.  J.,  in  this  term  (January  12th)  delivered  the 
judgment  of  the  court.  After  stating  the  ground  of  motion  to  be 
that  there  was  no  memorandum  in  writing,  nor  as  the  defendant 
alleged  any  acceptance,  his  Lordship  proceeded  as  follows : — 

The  facts  were  that  the  defendant  had  acted  as  agent  for  the  jilain- 
tiff  on  several  occasions  in  relation  to  certain  merchandises  imported 
from  France,  and  that  the  goods  in  question  were  lying  at  the  custom- 
house in  the  defendant's  name,  to  be  sold  by  him  for  the  i^laintiff.  The 
plaintiff  was  considerably  indebted  to  the  defendant,  who  was  pressing 
that  a  sale  should  be  made  that  he  might  pay  himself  out  of  the  jn-o- 
ceeds,  and  an  authority  to  sell  dated  Gth  April  was  given  by  the 
plaintiff  to  the  defendant,  and  produced  in  the  course  of  the  plaintiff's 
evidence.  But  a  ^dtness  stated  that  at  the  end  of  the  same  month 
he  had  called  on  the  defendant  on  behalf  of  the  plaintiff,  and  that  in 
that  conversation  the  defendant  finally  agreed  to  buy  these  goods 
himself  15  per  cent,  under  the  cost  price.  The  defendant  subse- 
quently sold  the  goods  and  rendered  a  debtor  and  creditor  account  to 
the  plaintiff  in  which  credit  was  given  to  the  plaintiff  for  the  goods 
by  an  item  in  these  words,  "  Goods  (describing  them)  sold  for  £120." 
The  action  was  brought  in  effect  for  that  sum,  and  the  verdict  passed 
accordingly. 

The  plaintiff  argued  that  this  parol  contract  of  sale  was  binding 
within  the  statute,  because  the  defendant  had  accepted  the  goods  in 
selling  them  and  keeping  the  money.  This  was  denied ;  and  it  was 
said  that  the  statute,  requiring  acceptance  and  actual  receipt  of  the 
whole  or  part  where  there  was  no  written  memorandum,  could  not  be 
satisfied  in  the  case  of  one  at  the  time  of  the  bargain  possessed  of  the 
goods,  inasmuch  as  that  circumstance  prevents  them  from  being 
delivered  to  him  or  actually  received  by  him  in  virtue  of  the  sale.  At 
all  events  it  was  contended  that  no  act  could  be  relied  on  to  prove 
acceptance  and  receipt  but  what  was  inconsistent  with  the  pui-pose  of 

1  1  C.  &  P.  272.  2  5  B.  &  Aid.  557  ;  s.  c.  1  D.  &  R.  128. 

3  2B.  &C.  511. 


160  EDAN   V.    DUDFIELD.  .  [CHAP.    I. 

the  prior  possession ;  whereas  in  this  case  all  that  was  done,  the  sale 
and  the  acconnt  rendered,  were  perfectly  consistent  Avith  the  authority 
previously  given  and  the  defendant's  character  of  agent.  We  have 
no  doubt  that  one  person  in  possession  of  another's  goods  may  become 
the  purchaser  of  them  by  parol,  and  may  do  subsequent  acts  without 
any  writing  between  the  parties  which  amount  to  acceptance  [re- 
ceipt?^] ;  and  the  effect  of  such  acts,  necessarily  to  be  proved  by  parol 
evidence,  must  be  submitted  to  the  jury.  We  entertain  this  opinion 
after  fully  considering  all  the  cases  cited,  especially  Elmore  v.  Stone," 
Nicholle  v.  Plume,^  Maberley  v.  Sheppard ;  ^  agreeing  that  such  evidence 
must  be  unequivocal,  but  thinking  the  question,  whether  it  is  so  or  not  under 
all  the  circumstances,  fact  for  the  jury,  not  matter  of  law  for  the  court. 

It  was  indeed  contended  that  parol  evidence  was  inadmissible  to 
explain  the  character  of  the  acts  relied  on  to  prove  acceptance ;  for 
that  to  admit  it  would  let  in  all  the  inconvenience  which  the  statute 
was  intended  to  prevent.  No  case,  however,  warrants  the  holding  the 
rule  so  strict :  nor  does  convenience  require  it ;  for  where  there  is  the 
foundation  of  an  act  done  to  build  upon,  the  admission  of  declarations 
to  explain  that  act  lets  in  only  that  unavoidable  degree  of  uncertainty 
to  which  all  transactions  to  be  proved  by  ordinary  parol  evidence  are 
liable.  Upon  this  principle  stat.  9  G.  4,  c.  14,  §  1,  on  a  very  anal- 
ogous matter,  has  been  construed  in  the  Court  of  Exchequer.  For, 
whilst  in  Willis  v.  Newham  ^  it  was  held  that  part  payment,  to  take  a 
case  out  of  the  Statute  of  Limitations,  could  not  be  proved  by  a  verbal 
acknowledgment  only,  it  was  held  in  Waters  v.  Tompkins  ®  that,  Avhere 
a  sum  had  been  paid  without  any  statement  on  what  account,  declara- 
tions were  admissible  to  explain  on  what  account.  Therefore  a  non- 
suit cannot  be  entered. 

The  motion  for  a  new  trial,  on  the  ground  that  the  verdict  was 
against  the  evidence,  was  supported  by  some  very  strong  observations 
on  the  probabilities  of  the  case,  which  were  not  however  exclusively  in 
favor  of  the  defendant.  It  was  moved  for  also  on  defendant's  affi- 
davit, which  we  have  thought  it  right  to  examine  carefully  with  those 
on  the  other  side.  The  answer  which  these  give  is  complete  :  no  sub- 
sequent information  has  been  or  can  be  obtained ;  and  the  defendant's 
case  is  narrowed  to  the  improbabiUty  that  that  of  his  adversary  can  be 
true.  But  this  has  been  already  considered  by  the  jury,  who  were 
satisfied  with  the  proof  of  it  by  a  witness  whose  character  stands  unim- 
peached.  Jiule  discharged. 

1  See  Benj.  on  Sale,  127.  —Ed.  2  i  Taunt.  458.  3  1  C.  &  P.  272. 

*  10  Bins?.  99.     And  see  Dodsley  v.  Varley,  12  A.  &  E.  632. 

5  3  Y.  &  J.  518.  «  2  C.  M.  &  R.  723  ;  s.  c.  Tyrwh.  &  Gr.  137. 


BECT.    IV.]  BILL    V.    BAMENT.  161 

BILL  V.  BAMENT. 

In  the  Exchequer,  November  11,  1841. 

[Reported  in  9  Meeson  Sf  Welsby,  36.] 

AssmrpsiT  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Plea,  non  assumpsit.  At  the  trial  before  Lord  Abinger,  C.  B.,  at  the 
London  sittings  after  Trinity  tenn,  tlie  folloAN-ing  facts  appeared  :  — 

The  defendant  ordered  of  one  Harvey,  who  was  an  agent  of  the 
plaintiff  under  a  del  credere  commission,  a  quantity  of  goods,  includinor 
twenty  dozen  hair-brushes  and  twelve  dozen  clothes-brushes,  to  be 
j)aid  for  on  delivery  at  a  stipulated  price,  but  no  memorandum  in  writ- 
ing of  the  bargain  was  made  at  the  time.  On  receiving  notice  from 
Harvey  that  the  brushes  had  arrived  at  his  warehouse,  the  defendant 
on  the  22d  of  March  last  went  there,  and  directed  a  boy  whom  he  saw 
there  to  alter  the  mark  "  No.  1"  upon  one  of  the  packages  to  "  No. 
12,"  and  to  send  the  whole  of  the  goods  to  tlie  St.  Catharine's  Docks. 
The  next  day  an  im'oice  was  delivered  to  the  defendant,  charging  the 
brushes  respectively  at  the  rate  of  8s.  and  12s.  each.  The  defendant 
objected  to  the  price,  alleging  that  by  the  contract,  as  he  had  understood 
it,  the  above  were  to  be  the  prices  of  the  brushes  per  dozen,  and  refused 
to  pay  for  them.  On  the  24th  of  March  the  plaintiff  commenced  the 
present  action  for  the  25 rice.  On  the  27th  the  defendant  at  Harvey's 
request  wrote  in  Harvey's  ledger,  at  the  bottom  of  the  page  which 
contained  the  statement  of  the  articles  ordered  by  the  defendant,  and 
which  page  was  headed  "  Bill  &>  Co.,"  the  following  words  :  "  Received 
the  above,  John  Bament."  The  rest  of  the  goods  were  sent  to  and 
received  by  the  defendant.  It  was  objected  for  the  defendant  that 
there  was  no  evidence  of  any  contract  in  writing,  or  of  any  accejjtance 
of  the  brushes,  sufficient  to  satisfy  the  17th  section  of  the  Statute  of 
Frauds.  The  Lord  Chief  Baron  reserved  the  point,  and  the  plaintifl" 
had  a  verdict  for  the  amount  claimed,  leave  being  reserved  to  the 
defendant  to  move  to  enter  a  nonsuit. 

Erie  having  obtained  a  rule  7iisi  accordingly,  Thesiger  and  Martin 
now  shewed  cause.  First,  the  defendant's  receipt  in  the  ledger, 
although  written  after  the  commencement  of  the  action,  amounts  to  a 
memorandum  in  writing  sufficient  to  satisfy  the  statute,  or  at  all 
events  is  evidence  of  a  previous  acceptance  of  the  goods  within  the 
17th  section.  That  section  requires  that  one  of  three  matters,  —  part 
acceptance  of  the  goods,  earnest  or  part  pajTiient,  or  a  memorandum 
in  ^vl•iting  of  the  bargain  —  shall  occur,  in  order  to  shew  :i  reality  in  the 
contract  beyond  that  which  parol  evidence  would  establish ;  but  there 
is  nothing  in  the  statute  to  shew  that  these  must  all  liave  existed 

VOL.   I.  11 


162  BILL  V.    BAMENT.      .  [CHAP.    I, 

belore  action  brought.  The  statute  does  not  make  the  contract  in 
itself  illegal  and  void,  but  only  says  that  no  contract  shall  be  allowed 
(that  is,  by  the  court  on  the  trial)  to  be  good,  except  one  of  these 
three  things  shall  appear.  It  has  been  decided  that  the  memorandum 
need  not  be  signed  with  the  intent  of  attesting  the  bargain.  Coles  v. 
Trecothick.^  But  at  all  events  the  acknowledgment,  "Received  the 
above,"  was  evidence  to  go  to  the  jury  of  a  previous  acceptance. 
There  is  nothing  in  it  to  confine  its  operation  to  the  particular  moment 
at  which  it  was  signed.  All  that  is  prohibited  by  the  statute  is,  that 
such  a  contract  as  is  mentioned  therein  shall  not  be  imposed  on  a  party 
without  a  particular  species  of  proof;  but  if  the  plaintiff  produces  in 
evidence  a  document  which  goes  to  prove  a  good  contract  anterior  to 
the  commencement  of  the  action,  that  is  sufficient.  Secondly,  there 
was  besides  independent  evidence  of  acceptance.  The  defendant  was 
allowed  to  deal  with  the  goods  as  his  own  and  had  possession  of  them, 
although  HarA^ey  might  still  retain  a  lien  on  them  for  the  price.  The 
present  case  is  distinguishable  fi-om  all  those  which  will  be  relied  upon 
for  the  defendant.  In  Tempest  v.  Fitzgerald  -  the  horse,  although  rid- 
den by  the  vendee  for  the  pui-j^ose  of  trial,  remained  throughout  in  the 
possession  of  the  vendor  as  the  owner.  So  in  Carter  v.  Toussaint  ^ 
the  horse  Avas  sent  to  grass  in  the  vendor's  name  by  the  A'endee's  direc- 
tion. So  also  in  Maberley  v.  Sheppard  *  the  wagon  remained  unfinished 
in  the  possession  of  the  maker.  Baldey  v.  Parker  ^  only  decides  that 
the  mere  marking  of  goods  by  the  vendee  in  the  A^endor's  shop  does 
not  constitute  an  acceptance ;  but  here  more  was  done.  The  order  for 
the  marking  may  be  coupled  with  the  subsequent  acknowledgment  by 
the  receipt  in  the  ledger. 

£Jrle  (with  whom  was  Whateley),  contra.  It  is  now  said  that  there 
was  evidence  for  the  jury  of  an  acceptance ;  but  at  the  trial  the  point 
Avas  left  for  the  court  to  detemiine,  whether  the  undisputed  facts 
amounted  in  law  to  an  acceirtance ;  and  such  has  been  the  course  in 
all  the  cases  on  this  subject.  There  is  nothing  in  the  terms  of  the 
receipt  to  shew  that  it  was  meant  to  be  an  acknowledgment  of  a  pre- 
vious actual  acceiDtance  ;  nor  could  an  act  done  after  the  repudiation 
of  the  contract,  and  after  action  brought  to  enforce  it,  operate  as  such. 
Neither  Avas  there  any  acceptance  before  action  brought.  This  was  a 
ready-money  bargain ;  so  that  the  deliA^ery  of  the  goods  and  the  pay- 
ment of  the  price  were  to  be  concurrent  acts.  The  goods  remained  in 
the  corporal  possession  of  HarA-ey  as  the  plaintiff's  agent ;  and  no  act 
was  done  by  the  defendant,  but  merely  a  verbal  direction  given  by  him 
as  to  the  marking.  It  is  clear  that  the  vendor  retained  his  Hen  for  the 
price ;  and  that,  according  to  Carter  v.  Toussaint  and  Tempest  v.  Fitz- 
gerald, is  the  test  whereby  to  detei-mine  whether  there  has  been  an 

1  9  Ves.  250.  2  3  B.  &  Aid.  680.  3  5  B.  &  Aid.  855,  1  D.  &  R.  515. 

*  10  Bing.  99,  3  Moo.  &  Sc.  436.  5  2  B.  &  Cr.  37.  3  D.  &  R.  220. 


SECT.    IV.]  BILL   V.    BAMENT.  163 

acceptance  within  the  statute.  Tempest  v.  Fitzgerald  M'as  a  stronger 
case  than  the  present,  for  there  the  horse  was  dealt  with  between  the 
parties  as  if  the  bargain  was  complete.  In  Maberley  v.  Sheppanl  the 
wagon  was  completed  before  action  brought,  and  what  the  defendant 
did  to  it  made  it  complete;  yet,  the  plaintiff  never  having  parted  with 
his  lien  for  the  price,  that  was  held  insufficient  to  amount  to  an  accept- 
ance.    The  same  principle  is  applied  in  Baldey  v.  Parker. 

Secondly,  there  was  not  any  memorandum  in  writing  sufficient  to 
satisfy  the  statute.  The  point  now  taken  for  the  plaintiff,  that  it  may 
be  a  Avriting  subsequent  to  the  commencement  of  the  action,  has  never 
before  been  applied  to  the  Statute  of  Frauds.  The  statute  declares 
that  no  contract  for  the  sale  of  goods  above  the  value  of  £10  shall  be 
allowed  to  be  good,  except  it  be  accompanied  with  certain  requisites. 
That  must  mean  requisites  existing  when  the  contract  comes  in  esse  ; 
or  at  all  events  they  are  necessary  ingredients  in  the  cause  of  action, 
which  must  be  in  existence  so  as  to  make  it  complete  when  the  action 
is  brought.     He  was  then  stojDped  by  the  court. 

Lord  Abinger,  C.  B.  If  the  question  at  the  trial  had  turned  alto- 
gether iipon  the  acceptance,  I  should  then  have  formed  the  same  opin- 
ion as  I  do  now.  In  order  to  make  it  such  an  acceptance  as  to  satisfy 
the  statute,  it  should  appear  that  there  was  a  delivery.  Here  Harvey 
was  the  plaintiff's  agent,  and  sold  for  ready  money ;  and  he  was  not 
bound  to  deliver  the  goods  until  payment  of  the  jirice.  Now  all  that 
takes  place  is  a  direction  by  the  defendant  to  alter  the  mark  on  the 
goods,  and  to  send  them  to  the  docks  ;  but  the  question  is,  whether 
this  was  done  under  such  circumstances,  and  Harvey  stood  in  such  a 
situation,  as  that  he  was  bound  to  send  them  to  the  docks.  The 
acceptance,  to  be  effectual  under  the  statute,  should  be  such  as  to 
devest  the  property  in  the  goods  o\\%  of  the  seller.  Here  the  defend- 
ant probably  meant  to  accept  them,  and  to  make  Harvey  his  agent  for 
shipping  them.  But  can  it  be  said  that  he  was  his  agent  to  deliver  at 
all  events  ?  I  think  clearly  not.  He  was  at  liberty  to  say  that  he 
would  not  deliver  to  or  ship  for  the  defendant  until  the  goods  were 
paid  for.  There  is  nothing  to  shew  that  he  contracted  to  hold  them 
as  the  defendant's  agent,  or  by  implication  to  make  him  his  agent. 
Therefore,  for  want  of  a  delivery,  there  was  no  sufficient  acceptance  of 
these  goods.  The  rule  w^ill  be  absolute,  but  not  for  a  nonsuit,  as  it 
ap])ears  that  some  goods  were  received  by  the  defendant,  but  for  a  noA\- 
trial  on  payment  of  costs  by  the  plaintiff. 

Pakke,  B.  I  concur  in  thinking  that  there  was  no  evidence  to  go 
to  the  jury  to  satisfy  the  Statute  of  Frauds.  With  regard  to  the  point 
which  has  been  made  by  Mr.  Martin,  that  a  memorandum  in  writing 
after  action  brought  is  sufficient,  it  is  certainly  quite  a  new  ])oint ;  but  I 
am  clearly  of  opinion  that  it  is  untenable.  There  must,  in  order  to 
sustain  the  action,  be  a  good  contract  in  existence  at  the  time  of  action 


164  SCOTT   V.    EASTERN   COUNTIES   RAILWAY   CO.  [CHAP.    I. 

brought ;  and  to  make  it  a  good  contract  under  the  statute  there  must 
be  one  of  the  three  requisites  therein  mentioned.  I  think  therefore 
that  a  written  memorandum,  or  part  payment  after  action  broiight,  is 
not  sufficient  to  satisfy  the  statute.  Then,  to  take  the  case  out  of  the 
17th  section,  there  must  be  both  delivery  and  accei^tance ;  and  the 
question  is,  whether  they  have  been  proved  in  the  present  case.  I 
tliink  they  have  not.  I  agree  there  was  evidence  for  the  jury  of 
acceptance,  or  rather  of  intended  acceptance.  The  direction  to  mark 
the  goods  was  evidence  to  go  to  the  jury  quo  animo  the  defendant 
took  possession  of  them :  so  also  the  receipt  was  some  evidence  of  an 
acceptance.  But  there  must  also  be  a  delivery ;  and  to  constitute  that 
the  possession  must  have  been  parted  with  by  the  owner  so  as  to 
deprive  him  of  the  right  of  lien.  Harvey  might  have  agreed  to  hold 
the  goods  as  the  warehouseman  of  the  defendant,  so  as  to  deprive  him- 
self of  the  right  to  refuse  to  deliver  them  without  payment  of  the 
price;  but  of  that  there  was  no  proof.  There  was  no  evidence  of 
actual  marking  of  the  goods,  or  that  the  order  to  mark  was  assented 
to  by  Harvey.  I  am  of  opinion  therefore  that  there  was  no  sufficient 
proof  of  accei:)tance  to  satisfy  the  statute,  and  that  the  case  falls  within 
the  17th  section. 

GuRNEY,  B.,  and  Rolfe,  B.,  concurred. 

jRule  absolute  accordingly. 


SCOTT   V.    THE    EASTERN    COUNTIES    RAILWAY 

COMPANY. 

In  the  Exchequer,  November  6,  1843. 

[Rejjcyrted  in  12  Meeson  Sj-  Welshj,  33.] 

Assumpsit.  The  declaration  alleged  that  on  the  18th  May,  1841, 
the  defendants,  by  John  Braithwaite  their  agent  in  that  behalf,  ordered 
and  agreed  to  purchase  fi-om  the  plaintiff,  and  the  plaintiff  then  agreed 
with  the  defendants  to  cause  to  be  manufactured  for  and  to  sell  to  them, 
certain  goods  and  chattels  for  the  use  of  the  said  railway,  and  of  cer- 
tain descriptions  then  directed  and  specified  by  the  defendants,  to  wit, 
one  triangular  lamp  for  junction  with  three  twenty-fovtr-inch  lenses, 
two  covered  with  red  stained  glass  outside,  to  be  fastened  at  the 
corners  with  three  bolts  and  nuts,  one  lamj)  for  the  same,  twelve  moaler 
lamps,  four  square  lamps,  two  new  side  lamps,  and  six  common  ti'icolor 
lamps,  at  and  for  certain  reasonable  prices  to  be  paid  by  the  defendants 
to  the  plaintiff  for  the  same ;  and  thereupon,  in  consideration  of  the 
premises  and  that  the  plaintiff  would  cause  the  said  goods  and  chattels 


SECT.    IV.]        SCOTT  V.    EASTERN   COUNTIES   RAILWAY   CO.  165 

to  be  delivered  to  the  defendants,  to  wit,  within  .a  reasonable  time  then 
next  following,  to  wit,  at  a  certain  station  of  the  said  railway,  to  wit, 
at  Shoreditch,  London,  the  defendants  then  promised  the  plaintiff  to 
accept  the  said  goods  and  chattels  of  the  plaintiff,  and  to  pay  him  for 
the  same  the  said  prices,  to  wit,  on  the  delivery  thereof  The  declara- 
tion then  went  on  to  aver  that  the  plaintiff,  confiding  in  the  promise  of 
the  defendants,  did  afterwards,  to  wit,  on,  &c.,  cause  to  be  manufactured 
and  delivered  to  the  defendants,  and  the  defendants  then  accepted  and 
received  from  the  plaintiff,  a  i)art  of  the  said  goods  and  chattels,  to  wit, 
the  said  twelve  nioaler  lamps,  the  said  four  square  lamps,  the  said  two 
new  side  lamps,  and  the  said  six  common  tricolor  lamps,  according  to 
the  said  promise;  and  although  the  plaintiff  afterwards,  in  consequence 
and  in  pursuance  of  the  said  agreement,  and  in  a  reasonable  time  in  that 
behalf,  to  wit,  &c.,  caused  the  manuficture  of  the  said  triangular  lam]> 
to  be  commenced  and  proceeded  with,  and  the  construction  thereof  to 
be  carried  on  and  brought  nearly  to  completion,  and  did  in  so  doing 
necessarily  expend  and  incur,  and  cause  to  be  expended,  divers  large 
sums  of  money,  charges  and  expenses,  to  wit,  £300;  and  although  the 
plaintiff  was  at  all  times,  fi-om  the  making  of  the  said  agreement,  ready 
and  willing  to  perform  the  same  in  all  things  on  his  i)art  to  be  per- 
formed, and  to  cause  the  said  last-mentioned  lamp  to  be  completed  ami 
delivered  to  the  defendants  within  a  reasonable  time  from  the  making 
of  the  said  agreement ;  and  although  the  plaintiff  did  afterwards,  and 
after  the  refusal  of  the  defendants  to  accept  or  receive  the  said  last- 
mentioned  lamp  as  hereinafter  mentioned,  and  long  before  the  com- 
mencement of  this  suit,  offer  to  deliver  the  said  last-mentioned  lamp  to 
the  defendants,  of  which  premises  the  defendants  always  had  notice ; 
yet  the  defendants,  disregarding  their  said  promise,  after  the  making 
thereof,  and  before  a  reasonable  time  for  the  completion  and  delivery 
of  the  said  last-mentioned  lamp,  to  wit,  &c.,  wholly  refused  to  accept 
or  receive  the  said  last-mentioned  lamp,  and  then  wholly  and  Avrong- 
fully  discharged  the  plaintiff  from  further  proceeding  with  the  manu- 
facture thereof,  or  from  at  any  time  delivering  the  same  to  the 
defendants,  and  then  wholly  absolved,  exonerated,  and  discharged 
the  plaintiff  from  any  further  observance  or  performance  of  the  said 
agreement  on  his  part;  and  the  defendants  have  from  thence  continually 
hitherto  Avholly  refused  to  accept  or  receive  the  said  lamp,  although 
the  plaintiff  did  as  aforesaid,  and  before  the  commencement  of  this 
suit,  to  wit,  &c.,  cause  the  said  lamp  to  be  completed,  and  then  offered 
to  deliver  the  same  to  the  defendants,  whereby,  &c. 

Plea,  n07i  assumpserunt. 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  last  assizes  at  War- 
wick, it  appeared  that  in  May,  1841,  Mr,  Braithwaite  the  defendants' 
agent  went  to  the  plaintiff's  manufactory  to  order  the  lamps  men- 
tioned in  the  declaration,  all  of  which  were  of  a  Avcll-known  and  ordi- 


166  SCOTT   V.    EASTERN    COUNTIES   RAILWAY  CO.  [CHAP.    I. 

nary  description,  with  the  exception  of  the  triangular  lamp,  which  was 
very  peculiar.  The  moaler,  the  square,  and  the  new  side  lamps  were 
delivered  with  a  separate  invoice,  and  paid  for  in  May,  1841  ;  but  the 
triangular  lamp  was  not  finished  until  the  month  of  April,  1843,  Avhen 
the  defendants  being  dissatisfied  with  it  refused  to  receive  or  pay  for 
it,  whereupon  the  present  action  was  brought.  Under  these  circum- 
stances, it  was  objected  for  the  defendants  that  the  contracts  for  these 
articles  wei-e  distinct,  and  that  the  delivery  and  acceptance  of  the 
common  lamjjs  did  not  constitute  a  part  acceptance  within  the  Statute 
of  Frauds,  so  as  to  bind  the  defendants  to  receive  and  pay  for  the 
triangular  lamp  which  was  afterwards  manufactured.  The  learned 
judge,  reserving  leave  to  the  defendants  to  move  to  enter  a  nonsuit, 
left  the  case  to  the  juyy,  who  found  for  the  plaintiff  for  £248,  the  amoimt 
claimed  by  him. 

Erie  now  moved  accordingly  either  for  a  nonsuit  or  a  new  trial. 
The  question  in  this  case  is,  whether  the  acceptance  of  the  smaller 
lamps  constituted  apart  delivery  and  acceptance  within  the  17th  section 
of  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  and  Lord  Tenterden's  Act,  9 
Geo.  4,  c.  14,  §  7,  so  as  to  bind  the  defendants  to  pay  for  the  triangular 
lamp,  which  was  not  in  existence  at  the  time  of  the  contract  being 
entered  into.  The  17th  section  of  the  Statute  of  Frauds  enacts  [stating 
it].  The  statute  9  Geo.  4,  c.  14,  §  17,  extends  the  provisions  of  that 
section ;  and,  after  reciting  it,  enacts  [stating  it  ^].  In  this  case  the 
acceptance  of  the  smaller  lamps  could  not  be  considered  as  a  part 
acceptance  of  the  triangular  lamp,  inasmuch  as  that  was  not  in  exist- 
ence at  the  time ;  and  althou^gh  it  Avas  ordered  at  the  same  time  as  the 
common  lamps,  which  were  immediately  afterwards  dehvered  and  paid 
for,  it  must  be  considered  as  within  a  separate  contract.  [Alderson^, 
B.  Is  it  not  like  the  case  of  a  person  going  into  a  shop  and  choosing 
different  articles,  all  of  which  form  one  contract  ?]  There  the  articles 
are  in  existence  at  the  time ;  and  where  a  contract  is  made  for  several 
articles,  all  of  which  are  in  existence  at  the  time,  the  acceptance  of  one 
is  the  acceptance  of  all,  and  the  property  in  all  passes.  Baldey  v. 
Parker.^  But  here  the  thing  was  not  made,  and  there  can  be  no  part 
delivery  of  goods  which  are  not  in  existence.  [Lord  Abi:n^ger,  C.  B. 
The  9th  Geo.  4,  c.  14,  §  7,  extends  the  provisions  of  the  former  act  to 
goods  not  made.  Here  there  was  an  order  for  lamps,  some  already  made, 
and  another  to  be  made.  Then  there  is  an  accej)tance  of  the  fonner.  Are 
not  the  parties  bound  by  that  ?  Alderson,  B.  If  I  make  a  contract 
for  goods  already  made  and  goods  to  be  made,  and  I  accept  the  goods 
made,  it  shews  that  I  made  the  contract;  which  is  what  the  act  means.] 
It  is  submitted  that,  when  the  goods  are  not  made  at  the  time,  there 
should  be  a  part  payment  or  earnest  given,  or  a  written  memorandum 
to  satisfy  the  statute.  When  some  of  the  goods  are  made,  and  are  to 
1  See  supra,  p.  15,  note  1.  —  Ed.  2  2  B.  &  C.  37. 


SECT.    IV.]         SCOTT   V.    EASTERN   COUNTIES   RAILWAY  CO.  167 

be  delivered  immediately,  and  the  others  are  not,  but  arc  to  be  made 
and  delivered  subsequently,  they  cannot  be  said  to  be  included  in  one 
and  the  same  contract  of  sale.  Towers  v.  Osborne.^  In  Garbutt  v. 
Watson,^  wliere  there  was  a  verbal  contract  by  the  plaintiffs,  who 
were  millers,  for  the  sale  of  a  quantity  of  flour  which  was  not  prepared 
and  in  a  state  cajxable  of  being  immediately  delivered,  it  was  held  to 
be  a  contract  within  the  statute ;  and,  there  being  uo  memorandum  in 
writing,  the  plaintiffs  were  nonsuited.  In  Price  v.  Lea,^  which  was 
recognized  in  Elliott  v.  Thomas,^  the  defendant  gave  an  order  for  a 
quantity  of  cream  of  tartar,  and  at  the  same  time  offered  to  take  a 
quantity  of  lac  dye  at  a  certain  price.  Both  the  articles  were  sent.  It 
was  held  that  Avhat  passed  between  the  parties  could  not  be  considered 
as  an  entire  contract  for  both  the  articles.  And  in  Roots  v.  Doi*mer  * 
it  was  held  that,  when  lots  are  knocked  down  to  a  purchaser  at  an 
auction,  a  distinct  contract  arises  in  respect  of  each  lot. 

LoKD  Abinger,  C.  B.  I  am  of  opinion  that  there  ought  to  be  no 
rule.  I  think  the  order  for  the  ready-made  lamps,  and  that  given  for 
the  triangular  one,  amounted  but  to  one  contract.  Can  it  be  said 
that,  if  a  man  goes  to  a  tailor's  shop  and  buys  a  suit  of  clothes  which 
are  ready  made,  and  at  the  same  time  orders  another  suit  to  be  made 
for  him,  and  the  former  are  sent  home  to  and  accepted  by  him,  he  is 
not  bound  to  pay  for  the  latter  ?  The  two  statutes  that  have  been 
referred  to  must  be  construed  as  incorporated  together ;  and  then  it  is 
plain  that,  where  an  order  for  goods  made  and  for  others  to  be  made 
forms  one  entire  contract,  accejitance  of  the  former  goods  mil  take 
the  case  out  of  the  statutes  as  regards  the  latter  also. 

Aldersox,  B.  I  am  of  the  same  opinion.  The  transaction  con- 
stituted but  one  contract.  There  is  no  distinction  between  this  case 
and  that  of  a  j^arty  who  goes  into  a  shop  and  buys  fifty  different 
articles  at  the  same  time.  It  is  clear  that  such  a  person  does  not 
make  fifty  different  contracts.  If  a  man  enters  into  an  entire  agree- 
ment for  goods  made  and  for  others  to  be  made,  his  accepting  part  of 
the  goods  made  is  evidence  of  his  having  entered  into  the  airree- 
ment.  That  is  the  true  object  and  meaning  of  the  statute.  The 
articles  bargained  to  be  made  are  treated  for  this  jiurpose  as  goods 
actually  made,  although  they  are  not  in  existence  at  the  time  of  the 
agreement. 

Gurnet,  B.,  and  Rolfe,  B.,  concurred.  Rule  refused. 

1  1  Stra.  506.  2  5  B.  &  Aid.  613.  3  1  B.  &  Cr.  156. 

*  3  M.  &  W.  170.  5  4  B.  &  Ad.  77,  1  Nev.  &  M.  667. 


fi  v^  i^:y\^. 


6)^    vJ\'       YiP  BUSHEL  V.    WHEELER.  [CHAP.   I. 


1     V  BnS|JEIj    A^D    Others,    Assignees    of   Aceaman"    and    Others, 


\J' 


^ 


,     AV      Yhi^  V.  WHEELER. 


In  the  Queen's  Bench,  May  10,  1844. 

[Replied  in  15  Queen's  Bench  Reports,  442,  note.] 


'  ;W 


Assumpsit  by  tlie  assignees  of  Acraman  and  others,  bankrupts,  for 
goods  sold  and  delivered  by  the  bankrupts.  Plea,  non  assumpsit. 
Issue  thereon. 

On  the  trial  before  Erskine,  J.,  at  the  Somersetshire  summer  assizes, 
1843,  it  appeared  that  the  plaintiffs  were  the  assignees  of  bankrupts 
who  had  carried  on  business  at  Bristol,  under  the  firm  of  Acraman  and 
Company,  as  manufacturers  of  iron.  The  defendant  had  ordered  of 
the  bankrupts  before  their  bankruptcy  certain  mill  machinery,  at  a 
price  above  £10,  consisting  of  iron  wheels,  &c.  By  the  order  they 
were  to  be  forwarded  to  the  defendant  at  Hereford  by  the  Hereford 
sloop.  They  were  so  forwarded  by  the  bankrupts  on  23d  April, 
1842.  On  25th  AprU  a  letter  of  advice  with  an  invoice  was  sent  to 
the  defendant.  The  invoice  stated  that  the  goods  were  at  three 
months'  credit.  The  goods  arrived  at  Hereford  and  were  there  placed 
in  the  warehouse  on  the  wharf  of  the  owner  of  the  sloop ;  and  the 
defendant  was  informed  of  this  immediately.  No  communication  on 
the  subject  of  the  goods  from  the  defendant  to  the  bankrupts  took 
place  before  the  bankruptcy,  nor  any  to  the  assignees  till  7th  October, 
1842,  when  the  goods  were  repudiated.  These  facts  having  been 
proved  on  the  part  of  the  plaintiffs,  the  defendant  proved  that  after 
the  arrival  of  the  goods  at  the  warehouse  he  had  seen  them,  and  had 
informed  the  warehouseman  that  he  the  defendant  did  not  intend  to 
take  them.  The  goods  afterwards  came  to  the  wharf  of  the  owner  of 
the  sloop  at  Bristol.  On  these  facts  the  learned  judge  directed  the 
jury  to  find  a  verdict  for  the  defendant,  reserving  leave  to  move  to 
enter  a  verdict  for  the  plaintiffs  for  £24  15s.  8c?, 

.Butt,  in  Michaelmas  term,  1843,  obtained  a  rule  accordingly. 

Crowder  and  3£ontague  Smith  now  shewed  cause.  The  words  of 
§  17  of  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  "except  the  buyer  shall 
accept  part  of  the  goods  so  sold  and  actually  receive  the  same,"  are 
not  applicable  to  the  facts  of  this  case.  The  buyer  immediately  on 
learning  the  arrival  of  the  goods  repudiated  them.  James  v.  Griffin, 
2  M.  &  W.  623,  shews  that  such  repudiation  may  be  by  a  declaration 
of  the  vendee  to  his  o^vn  agent.  [Coleridge,  J,  In  that  case  the 
declaration  was  used  as  evidence  against  the  assignees  of  the  bankrupt 
who  made  it :  you  seek  to  use  it  in  favor  of  the  party  declaring.] 
There  can  be  no  acceptance  if  any  thing  remain  to  be  done.    Howe  v. 


SECT.    IV.]  BUSHEL   V.    WHEELER.  169 

Palmer,  3  B.  &  Aid.  321  ;  Baldcy  r.  Parker,  2  B.  &  C.  37  ;  Maberley 
V.  Sheppard,  10  Bing.  99,  —  where  Tindal,  C.  J.,  said  that  the  statute 
pomted  to  "  an  actual  delivery  and  an  actual  receiving."  So  there 
could  be  no  acceptance  if  the  vendor  retained  the  right  to  stop  in 
transitu ;  and  Thompson  u.  Trail,  6  B.  &  C.  36,  shews  that  the  right 
still  existed  in  this  case.  [Coleridge,  J.  That  is  a  bad  test :  there 
might  be  a  stopi)age  in  transitu,  though  there  had  been  a  note  in 
writing.]  Hanson  v.  Annitage,  5  B.  &  Aid.  557,  shews  that  the 
dehvery  at  the  warehouse  did  not  here  constitute  an  acceptance  by 
the  defendant,  the  acceptance  "not  being  by  the  party  himself." 
[Coleridge,  J,  At  whose  risk  were  the  goods  lying  at  the  ware- 
house in  this  case  ?]  [See  Dodsley  v.  Varley,  12  A.  &  E.  632,  634.] 
[Patteson,  J.  The  cases  are  collected  in  Coats  v.  Chaplin,  3  Q.  B. 
488.]  The  decision  there  is  rather  in  the  defendant's  favor;  for  it 
was  held  that  the  vendor  might  sue  for  the  loss  of  the  goods.  The 
utmost  that  can  be  said  here  is  that,  as  in  Edan  v.  Dudfield,  1  Q.  B. 
302,  the  jury  might  have  found  otherwise,  [^JButt,  for  the  plaintiffs. 
The  complaint  is  that  the  jury  here  were  not  allowed  to  draw  their 
inference  from  the  facts,  but  were  told  that  they  must  find  for  the 
defendant.  Patteson,  J.,  referred  to  Anderson  v.  Hodgson,  5  Price, 
630.]  It  may  be  .said  that  here  was  no  repudiation  of  the  invoice  ; 
but  if  the  sale  was  not  perfected,  wdiy  should  the  invoice  be  repu- 
diated ?  [Lord  Denmax,  C.  J.  The  invoice  is  merely  evidence.] 
Taking  the  owner  of  the  sloop  to  be  the  defendant's  agent,  there 
would  be  only  a  delivery  to  the  defendant,  not  an  acceptance  by  him. 
Johnson  v.  Dodgson,  2  M.  &  W.  653,  656  ;  Nicholle  v.  Plume,  1  Car. 
&  P.  272  ;   Bill  V.  Bament,  9  M.  &  W.  36. 

Butt  (with  whom  was  Carroio),  contra.  There  was  sufficient  in  this 
case  to  entitle  a  jury  to  find  acceptance  and  actual  receipt.  The 
delivery  of  the  goods  was  made  to  the  defendant's  agent  named  by 
him ;  and  though  the  defendant  knew  of  this  and  had  also  received  the 
invoice  stating  among  other  things  the  length  of  credit,  which  was 
only  three  months,  he  nevertheless  made  no  communication  to  the 
vendor  till  after  the  exi)iration  of  more  than  five  months.  He  indeed 
told  the  warehouseman  that  he  would  not  receive  the  goods;  but  that 
was  merely  a  conversation  with  his  own  agent.  [Coleridge,  J.  It  is 
as  if  he  had  said  so  to  himself.]  In  Howe  v.  Palmer,  3  B.  &  Aid.  321, 
Baldey  v.  Parker,  2  B.  &  C.  37,  and  Maberley  v.  Sheppard,  10  Bing. 
99,  the  goods  had  never  been  delivered  out  of  the  possession  of  the 
vendor  or  his  agent.  Here  even  the  right  to  stop  in  transitu  was 
gone,  and  the  goods  were  at  the  defendant's  risk.  Fragano  v.  Long, 
4  B.  &  C.  219 ;  Dawes  v.  Peck,  8  T.  R.  330.  The  question  might 
have  been  more  difficult  if  the  defendant  had  returned  the  goods 
immediately  after  he  knew  that  they  were  in  his  agent's  hands.  In 
2  Starkie's  Ev.  488  (3d  ed.),  it  is  laid  down  that  there  may  be  a  con- 


170  BUSHEL   V.    WHEELER.  [CHAP.    I. 

structive  delivery;  and  there  may  on  the  same  principle  be  a  con- 
structive acceptance.  In  Elmore  v.  Stone,  1  Taunt.  458,  it  was  held 
that  there  might  be  a  constructive  delivery:  afterwards  in  Hanson  v. 
Armitage,  5  B.  &  Aid.  557,  this  was  held  not  enough  without  an 
acceptance ;  and  in  the  latter  case  there  was  no  acceptance,  because 
the  goods  had  not  as  here  been  delivered  to  a  party  named  as  agent 
by  the  vendee,  and  there  was  no  subsequent  acquiescence  by  the 
vendee  in  such  delivery.  The  same  circumstances  distinguish  the 
present  case  from  NichoUe  v.  Plume,  1  Car.  &  P.  272.  [Lord 
Denmak,  C.  J.  I  think  some  observations  have  been  made  upon  that 
case.]  [See  Edan  v.  Dudfield,  1  Q.  B.  307.]  The  delivery  to  the 
carrier  is  delivery  to  the  vendee  (Button  v.  Solomonson,  3  B.  &  P. 
582)  ;  and  the  vendee's  acquiescence  in  such  delivery  may  at  least  be 
construed  by"  a  jury  as  an  acceptance  by  him.  (He  was  then  stopped 
by  the  court.) 

Lord  Dkntsian-,  C.  J.  The  power  to  stop  in  transitu  is  not  a  test 
which  will  meet  all  cases ;  not  for  instance  the  case  of  a  memorandum 
in  writing.  The  general  intention  of  the  statute  is  that  there  should 
be  a  writing :  this  as  well  as  the  exception  for  the  case  of  delivery 
and  acceptance  has  been  construed  literally.  It  is  not  necessary  that 
the  purchaser  himself  shoiild  form  a  judgment  on  the  article  sent:  he 
may  depute  another  to  do  so,  or  he  may  rely  upon  the  seller.  The 
defendant  here  orders  the  goods  to  be  sent  by  a  particular  vessel 
which  he  names,  and  he  receives  the  invoice  which  states  a  three 
months'  credit.  He  allows  the  goods  to  remain  till  that  credit  is 
expired,  gi\ing  no  notice  to  the  seller,  though  he  did  say  to  his  own 
agent  that  he  would  not  take  them.  Now  such  a  lapse  of  time  con- 
nected vnt\\  the  other  circumstances  might  shew  an  acceptance; 
whether  there  was  an  acceptance  or  not  is  a  question  of  fact.  I  do 
not  think  that  the  mere  taking  by  the  carrier  is  a  receipt  by  the 
vendee ;  but  tbe  jury  here  should  have  been  allowed  to  exercise  a 
judgment  on  the  question  whether  there  was  an  actual  receipt. 

Williams,  J.  [Patteso^s^,  J.,  had  left  the  court  during  the  argu- 
ment.] There  ought  to  be  a  new  trial.  When  it  is  once  settled  that 
manual  occupation  is  not  essential  to  an  actual  receipt,  and  it  is  not  now 
contended  that  it  is,  it  becomes  a  question  whether  there  have  been 
circumstances  constituting  an  actual  receipt.  The  larger  the  bulk,  the 
more  impracticable  it  is  that  there  should  be  a  manual  receipt :  some- 
thing there  must  be  in  the  nature  of  constructive  receipt,  as  there  is 
constructive  delivery.  It  being  then  once  established  that  there  may 
be  an  actual  receipt  by  acquiescence,  wherever  such  a  case  is  set  up  it 
becomes  a  question  for  the  jury  whether  there  is  an  actual  receipt. 
And  all  the  facts  must  be  submitted  to  their  consideration  for  the 
determination  of  that  question. 

Coleridge,  J.    I  agree  that  the  acceptance  must  be,  in  the  words  of 


SECT.    IV.]  NORMAN   V.    PHILLIPS.  171 

one  of  the  cases  cited,  "  strong  and  unequivocal."  [Mabevley  v.  Shc])- 
panl,  10  Bing.  101.]  But  that  is  quite  consistent  vriXh.  its  being  con- 
structive. Therefore  in  ahnost  all  cases  it  is  a  question  for  the  juiy, 
whether  particular  instances  of  acting  or  forbearing  to  act  amount  to 
acceptance  and  actual  receipt.  Here  goods  are  ordered  by  the  vendee 
to  be  sent  by  a  particular  carrier,  and  in  effect  to  a  particular  ware- 
house ;  and  that  is  done  in  a  reasonable  time.  That  comes  to  the  same 
thing  as  if  they  had  been  ordered  to  be  sent  to  the  vendee's  own  house, 
and  sent  accordingly.  In  such  a  case  the  vendee  would  have  had  the 
right  to  look  at  the  goods,  and  to  return  them  if  they  did  not  con-e- 
spond  to  order.  But  here  the  vendee  takes  no  notice  of  the  anival, 
and  makes  no  communication  to  the  party  to  whom  alone  a  communi- 
cation Avas  necessary.  The  question  must  go  to  a  jury. 
LoKD  De^ma?^^,  C.  J.     We  must  qualify  the  rule  nisi. 

Rule  absolute  for  a  new  trial  {not  on  payment  of  costs). 


NORMAN  V.   PHILLIPS. 

In  the  Exchequer,  June  11,  1845. 

{Reported  in  14  Meeson  ^  Welsby,  277.] 

Assumpsit  for  goods  bargained  and  sold,  goods  sold  and  delivered, 
money  paid,  and  on  an  account  stated.     Plea,  7i07i  assumpsit. 

At  the  trial  before  Pollock,  C.  B.,  at  the  last  assizes  for  the  county 
of  Berks,  it  appeared  that  the  plaintiff  was  a  timber  merchant  in  Lon- 
don, and  the  defendant  a  builder  in  Wallingford,  and  that  on  the  ITth 
of  Ajn-il  the  defendant  gave  a  verbal  order  to  the  plaintiff's  traveller 
for  yellow  deals  amounting  to  £32  14s.  4f?.,  with  directions  for  them  to 
be  sent  to  the  Paddington  station  of  the  Great  Western  Railway  to 
be  forwarded  to  him,  as  had  been  the  i)ractice  between  the  parties  on 
previous  occasions.  On  the  19th  of  April  the  deals  arrived  at  the 
Wallingford  station,  on  Avhich  day  the  defendant  was  informed  by  the 
railway  clerk  that  they  Avere  lying  for  him  at  the  station,  when  he  said 
he  w^ould  not  take  them.  An  invoice  was  also  sent  on  the  27th  of 
April,  which  the  defendant  received  and  kept ;  but  it  did  not  appear 
that  he  had  ever  seen  the  timber.  On  the  28th  of  May  the  defendant 
informed  the  plaintiff  that  he  declined  to  take  the  goods,  and  on  the 
22d  of  June  made  a  similar  communication  in  writing  to  the  railway 
clerk.  Under  these  circumstances  it  was  contended  for  the  defendant 
that  there  was  no  evidence  of  a  sufficient  acceptance  by  him  to  satisfy 
the  Statute  of  Frauds,  and  that  the  plaintiff  ought  to  be  nonsuited. 


172  NORMAN   V.   PHILLIPS.  [CHAP.    I. 

The  learned  judge  however  refused  to  nonsuit,  and  directed  the  jury 
to  find  their  verdict  for  the  plaintiff,  but  gave  the  defendant  leave  to 
move  to  enter  a  nonsuit  or  a  verdict  for  him.  A  rule  having  been 
accordingly  obtained, 

Keating  and  Dowclesicell  shewed  cause  (June  7).  There  was  suffi- 
cient evidence  of  acceptance  of  the  goods  to  take  the  case  out  of  the 
Statute  of  Frauds ;  for  there  was  a  delivery  of  the  goods  sold  to  a 
party  to  whom  they  were  to  be  delivered,  acquiesced  in  by  the  defend- 
ant, which  amounts  to  an  acceptance  of  them.  The  delivery  need  not 
be  to  the  party  himself,  but  a  delivery  to  a  carrier  pointed  out  by  him 
is  sufficient.  Dawes  v.  Peck.^  It  was  there  held  that  when  a  consignor 
delivers  goods  to  a  particular  carrier  by  the  order  of  the  consignee, 
and  thev  are  afterwards  lost,  the  action  can  onlv  be  brou2;ht  by  the 
consignee ;  and  it  does  not  appear  that  that  has  ever  been  disputed. 
And  in  Hart  v.  Sattley  ^  the  decision  went  further ;  and  it  was  held 
that,  if  goods  be  ordered  verbally,  the  delivery  of  them  to  a  carrier  is 
sufficient  to  bind  the  contract  according  to  the  Statute  of  Frauds,  when 
the  purchaser  has  been  in  the  habit  of  receiving  goods  from  the  vendor 
by  the  same  mode  of  conveyance.  In  every  case  in  which  the  vendee 
designates  the  party  to  whom  the  goods  are  to  be  delivered,  a  delivery 
to  that  party  is  sufficient.  A  delivery  to  a  carrier  named  by  the  ven- 
dee is  tantamount  to  a  delivery  to  himself.  [Alderson,  B.  Can  there 
be  an  acceptance  so  long  as  the  buyer  has  a  right  to  object  to  the 
quality  of  the  goods?  and  is  he  precluded  from  objecting,  because 
he  directs  them  to  be  sent  by  a  particular  conveyance  ?  The  case  of 
Johnson  v.  Dodgson  ^  shews  that  he  is  not.]  Here  the  party  had  lost 
the  right  to  object  to  the  quahty  by  not  objecting  in  a  reasonable  time. 
The  goods  arrived  on  the  19th  of  April  at  the  Wallingford  station, 
and  the  defendant  was  informed  of  it ;  but  it  was  not  until  the  28th  of 
May  that  he  informed  the  plaintiff  that  he  declined  to  take  them.  A 
party  loses  his  right  to  object  to  the  quality  by  not  doing  it  in  a  rea- 
sonable time.  His  refusing  at  the  time  to  receive  them-  from  his  own 
agent  is  nothing.  In  Coleman  v.  Gibson  *  it  was  held  that  a  party  who 
has  the  right  of  approval  must  refuse  to  accept  the  goods  in  a  reason- 
able time  ;  and  if  he  does  not,  he  is  to  be  treated  as  having  accei:)ted 
them.  [Aldeesox,  B.  There  is  no  doubt  that  by  retaining  goods 
which  have  been  delivered  an  unreasonable  time  the  party  to  whom 
they  are  delivered  loses  his  right  to  object  to  them,  and  it  amounts  to 
acceptance.  But  I. cannot  see  how  there  was  any  acceptance  here. 
The  person  to  whose  possession  these  goods  came  was  not  the  person 
to  examine  the  quality  of  them.  Pollock,  C.  B.  The  defendant 
objected  at  the  time  to  take  the  goods  away.  He  was  not  bound  to 
send  them  back  again.]     There  was  evidence  to  go  to  the  jury  of 

1  8  T.  E.  330.  2  3  Campb.  528. 

3  2  M.  &  W.  658.  4  1  M.  &  Rob.  168. 


SECT.    IV.]  NOEMAN    V.   PHILLIPS.  173 

accejrtance.  He  was  told  of  the  arrival  of  the  goods,  and  afterwards 
received  an  invoice  of  them,  which  he  kept  without  informing  tlie 
plaintiff  that  he  declined  to  receive  them.  That,  it  is  submitted,  is 
evidence  of  acceptance.  [Aldeesox,  B.  He  must  accept  the  goods  and 
actually  receive  the  same,  to  constitute  an  acceptance  within  the  mean- 
ing of  the  statute.  Here  the  goods  are  sent  in  the  usual  way,  but 
when  they  arrive  at  the  carrier's  warehouse  the  defendant  refuses  to 
take  them.-  That  can  scarcely  be  said  to  be  an  accejrtance.]  The  case 
of  Bushel  V.  Wheeler,^  where  a  delivery  under  precisely  similar  circum- 
stances Avas  held  to  amount  to  evidence  of  acceptance,  is  not  distin- 
guishable from  the  present  case.  There  the  defendant  ordered  goods 
to  be  sent  by  a  particular  carrier,  and  they  were  sent  accordingly ;  and 
an  invoice  was  afterwards  sent  by  post,  and  a  printed  notice  that  the 
goods  were  supplied  at  three  months'  credit.  The  goods  were  placed 
in  the  carrier's  warehouse,  and  the  purchaser,  who  was  apprised  of  the 
fact,  allowed  them  to  remain  there  six  or  seven  months,  at  the  end  of 
which  time  he  informed  the  warehouseman  that  he  did  not  intend  to 
take  them,  whereupon  they  Were  returned  to  the  seller;  and  it  was 
held  that  this  was  evidence  for  the  jury  of  acceptance.  [Aldeesox, 
B.  In  that  case  the  vendee  did  not  reject  them  for  seven  months ;  and 
Coleridge,  J.,  puts  his  judgment  on  the  ground  that  the  inspection  of 
the  goods  was  to  be  made  within  a  reasonable  time.  Here  the  defend- 
ant immediately  on  being  told  by  the  carrier  that  the  deals  had  arrived 
says  he  will  not  take  them.]  Telling  the  carrier  that  he  will  not  take 
them  is  only  like  sajdng  it  to  himself  In  order  to  make  that  of  any 
avail  it  should  have  been  communicated  to  the  plaintiff.  The  defend- 
ant's allowing  the  goods  to  remain  a  very  considerable  time,  seven  or 
eight  weeks,  and  not  informing  the  seller  that  he  would  not  accejjt 
them,  are  facts  from  which  the  jury  were  at  liberty  to  infer  accei^tance. 
The  lapse  of  time  made  it  a  question  for  the  jury,  whether  the  defend- 
ant had  accepted  the  goods  or  not.  [Aldeeson,  B.  If  the  carrier 
was  not  the  defendant's  agent  to  accept  the  goods  in  the  first  instance, 
I  do  not  see  how  he  becomes  so  from  the  goods  being  in  his  i^osscssion 
for  some  time.]  Bushel  v.  Wheeler  is  an  authority  that  this  amounts 
to  evidence  of  acceptance ;  and  that  case  is  in  accordance  with  Cole- 
man V.  Gibson.^  Here  the  contract  was,  that  the  deals  were  to  be  sent 
by  the  railway  to  the  Wallingford  station ;  but  when  they  arrive 
there,  the  defendant  on  being  infonned  of  it  says  he  will  not  take 
them,  but  he  does  not  communicate  that  to  the  plaintiff.  [Aluekson, 
B.  The  strength  of  the  argument  is  certainly  the  non-communication 
of  his  refusal  to  take  them.]  It  amounts  to  an  acceptance  by  acqui- 
escence. [Aldeeson,  B.  Where  goods  are  in  a  party's  oa\ti  hands,  he 
has  an  opi)ortunity  of  examining  them  ;  and  his  saying  nothing  in  such 
a  case  woiild  be  evidence  of  acceptance  by  acquiescence.]  Here  the 
1  8  Jurist,  532,  [15  Q.  B.  442,  note.]  2  i  M.  &  K.  168. 


174  NORMAN  V.   PHILLIPS.  •  [CHAP.    I. 

carrier  was  the  agent  not  only  to  receive,  but  to  accept  the  goods. 
[Alderson,  B.  No;  he  was  not  his  agent  to  accept  them.  An 
acceptance  is  not  complete  until  the  party  has  precluded  himself  by 
Avhat  he  does  from  objecting  to  the  quality  of  the  goods.]  The  cases 
of  Dodsley  v.  Varley,^  Philhps  v.  Bistolli,-  Edan  v.  Dudfield,^  and  Blen- 
Idnsop  V.  Clayton  *  are  all  authorities  to  shew  that  this  was  evidence 
for  the  jury  of  acceptance. 

Talfouj'cl,  Serjt.,  and  Gray,  in  support  of  the  rule.  The  fallacy  of 
the  argument  is  in  treating  this  verbal  contract  as  if  it  were  a  valid 
contract  in  writing,  and  pro^dng  this  to  be  an  acceptance  by  the  aid  of 
it ;  whereas  in  truth  it  amounts  to  nothing,  and  was  not  admissible  in 
evidence  for  any  purpose.  There  was  here  nothing  like  an  acceptance ; 
for  the  defendant  on  being  told  that  the  deals  had  arrived  said  he 
would  have  nothing  to  do  with  them.  [Aldersoi^,  B.  When  you 
introduce  the  fact  that  the  goods  were  to  be  sent  to  a  particular  car- 
rier, you  introduce  a  part  of  the  contract,  which  the  statute  says  shall 
not  be  evidence  unless  it  is  in  writing.  All  that  can  be  assumed  to  be 
the  fact  is,  that  goods  sent  by  the  plaintiiF  to  the  defendant  had  been 
usually  sent  by  that  carrier  and  in  that  mode.]  The  carrier  was  not 
the  defendant's  agent  to  accept  the  goods.  The  fact  of  acceptance  is 
only  attempted  to  be  proved  by  introducing  part  of  the  contract  by 
parol  evidence,  and  then  coupling  the  fact  of  the  arrival  of  the  goods 
Avith  it.  But  if  the  facts  be  taken  to  be  so,  there  is  ample  evidence  of 
repudiation  of  the  contract,  for  the  defendant  immediately  said  he 
w^ould  not  take  them.  [ALDERSOif,  B.  It  is  not  what  the  defendant 
thought  or  told  the  carrier,  but  what  he  gave  the  plaintiff  reason  to 
believe,  that  affects  the  case.  It  is  for  the  plaintiff  to  make  out  that 
there  was  an  acceptance  of  the  goods.  It  is  difficult  to  distinguish  this 
case  from  Bushel  v.  Wheeler,  where  the  Court  of  Queen's  Bench  held, 
under  nearly  similar  circumstances,  that  it  was  evidence  of  acceptance 
for  the  jury.     Pollock,  C.  B.     We  will  take  time  to  consider.] 

Cur.  adv.  vidt. 

On  the  11th  of  June, 

Pollock,  C.  B.,  said :  After  the  case  of  Bushel  v.  Wheeler  we  can- 
not deny  that  there  is  a  scintilla  of  evidence  to  go  to  the  jury  of  an 
acceptance ;  yet  in  my  opinion  there  is  no  evidence  on  which  the  jury 
ought  to  have  found  an  acceptance.  As  therefore  they  ought  to  have 
found  a  verdict  for  the  defendant,  I  think  this  rule  ought  to  be  made 
absolute. 

Aldersox,  B.  If  it  had  not  been  for  the  case  of  Bushel  v.  Wheeler, 
I  should  have  said  there  was  no  evidence  whatever  for  the  jury  of 
acceptance.  The  true  rule  appears  to  me  to  be,  that  acceptance  and 
delivery  under  the  Statute  of  Frauds  means  such  an  acceptance  as 

1  12  Ad.  &  Ell.  632,  4  Per.  &  D.  448.  2  2  B.  &  C.  511,  3  D.  &  R.  822. 

3  1  Q.  B.  302,  4  Per.  &  D.  656.  *  7  Taunt.  597. 


SECT.    IV.]  :       LILLTWHITE   V.    DEVEREUX.  175 

precludes  the  purchaser  fi-om  objecting  to  the  quality  of  the  goods;  as, 
for  instance,  if  instead  of  sending  the  goods  back  he  keeps  or  uses 
them.  Here  the  goods  Avere  not  in  the  possession  of  the  party  himself, 
though  the  same  rule  would  hold  if  they  were  delivered  to  a  general 
agent  or  to  a  party  who  is  authorized  by  him  to  examine  the  quality 
of  the  goods.  But  the  carrier  is  only  an  agent  for  the  purpose  of  car- 
rying ;  and  here  the  purchaser  himself  immediately  refused  to  take  the 
goods.  If  a  carrier  is  not  originally  an  agent  to  accept  the  goods,  he 
cannot  be  made  so  by  mere  lapse  of  time.  After  the  case  of  Bushel 
V.  Wheeler  I  cannot  say  that  there  is  no  evidence  of  acceptance  to  go 
to  the  jury  ;  but  I  tliink  that  a  verdict  found  for  the  plaintiff  on  such 
facts  as  those  whieli  exist  in  the  present  case  is  clearly  not  warranted 
by  the  evidence,  and  therefore  the  rule  ought  to  be  made  absolute. 

RoLFE,  B.  Had  it  not  been  for  the  case  of  Bushel  v.  Wheeler,  I 
should  have  thought  that  there  was  no  evidence  of  acceptance  to  go 
to  the  juiy.  But,  although  it  be  taken  that  there  Avas  some  slight  evi- 
dence for  the  jury,  I  thiuk  the  proper  conclusion  for  them  to  draw 
would  be,  that  it  was  not  sufficient  evidence  of  acceptance. 

Platt,  B.,  concurred.  Mule  absolute. 


<  [ 

hi? 


\ 


LILLYWHITE  v.  DEVEREUX. 

In  the  Exchequer,  February  21,  1846. 

[Reported  in  15  Meeson  Sf  Welshij,  285.] 

This  Avas  an  action  brought  against  the  defendant  as  executrix  in 
her  own  wrong  of  James  Edward  Devereux,  deceased.  The  declara- 
tion contained  amongst  others  a  count  for  the  use  and  occupation  of 
a  dwelling-house,  and  also  a  count  for  goods  sold  and  delivered  to  the 
deceased  in  his  lifetime,  and  promises  by  him.  Nothing  turned  on  tlie 
other  two  counts.  At  the  trial  before  Tindal,  C.  J.,  at  the  last  assizes 
for  Surrey,  it  appeared  that  the  defendant  was  the  daughter  of  the 
deceased  and  had  intermeddled  with  his  property  after  his  decease.  It 
was  proved  in  evidence  that  the  house  had  been  let  furnished  by  the 
plaintiff  to  the  deceased  at  £1  5^.  per  Aveek.  About  the  middle  of 
December,  1845,  the  plaintiff,  who  Avas  himself  a  tenant  to  a  Wm. 
Kent,  Avas  desirous  of  getting  rid  of  that  tenancy  from  the  25th  of  the 
month,  the  end  of  the  current  year  of  his  holding,  and  offered  to  sell 
the  furniture  of  the  house  to  the  deceased  for  £50.  This  the  deceased 
thought  too  much,  but  verbally  agreed  to  have  the  goods  valued,  and 
pay  as  much  as  they  should  be  found  Avorth,  Mr.  Kent  agreeing  to  accejit 
the  deceased   as  tenant  from  that   day.     On  the  14th  a  valuer  of  the 


176  LILLYWHITB   V.   DEVEREUX.  [CHAP.    I. 

name  of  Piggott  was  sent  for,  with  the  approbation  of  both  parties, 
who  vahied  the  goods  at  £80.  This  the  defendant  refused  to  give,  but 
oifered  to  give  the  amount,  £50,  at  which  the  plaintiff  had  before 
offered  to  sell  them.  On  Christmas  eve,  one  Elland,  the  brother-in-law 
of  the  plaintiff,  took  the  key  out  of  the  street  door  of  the  house  and 
gave  it  to  the  defendant, — the  deceased  being  at  that  time  very  ill, — 
with  a  view  of  giving  up  the  house  to  the  deceased,  that  a  new  holding 
should  be  commenced  after  that  period  under  Kent.  On  that  occasion 
the  defendant  said  after  she  received  the  key,  "  How  about  the  furni- 
ture ? "  to  which  Elland  replied,  "  You  must  settle  about  that  with 
Wm.  Lilly  white"  (the  plaintiff).  Kent  refused  to  receive  the  deceased 
as  his  tenant,  and  he  continued  to  occupy  the  house  and  furniture  as 
before,  giving  to  the  plaintiff,  however,  continually  notice  to  take  away 
the  furniture,  which  he  refused  to  do ;  and  ultimately,  about  the  17th 
of  March  following,  it  was  removed  by  the  deceased  to  a  broker's  near, 
and  notice  thereof  was  given  to  the  plaintiff.  Soon  afterwards  the 
deceased  removed  to  another  house  with  his  daughter.  The  action 
was  brought  to  recover  the  rent  up  to  this  period,  and  also  the  price  of 
the  furniture.  The  Lord  Chief  Justice  directed  the  jury,  first,  that 
there  was  no  evidence  of  any  change  in  the  terms  of  the  tenancy,  as 
the  intended  holding  under  Kent  had  gone  off,  and  without  the  consent 
of  tlie  plaintiff  to  letting  the  house  at  a  lower  rent  than  the  £1  5s.  per 
week ;  and,  secondly,  that  it  was  for  the  jury  to  say,  whether  by  con- 
tinuing in  possession  after  the  valuation  the  deceased  did  not  accept 
and  take  possession  of  the  furniture  at  the  valued  price.  The  jury 
found  a  verdict  on  both  comits,  damages  £92. 

In  last  Michaelmas  term  Montagu  Chambers  obtained  a  rule  nisi  for 
a  new  trial  on  the  gi-ound  of  misdirection,  contending  that  there  was 
no  evidence  of  any  delivery  or  acceptance  of  the  furniture  within  the 
Statute  of  Frauds. 

Dowliyig,  Serjt.,  now  shewed  cause.  It  was  altogether  a  question  for 
tne  jury  to  determine  whether  there  had  been  a  sufficient  acceptance 
of  the  goods  to  satisfy  the  Statute  of  Frauds.  And  there  was  in  this 
case  evidence  of  the  acceptance  to  go  to  the  jury.  It  was  proved  that  the 
deceased  had  bargained  for  the  furniture ;  that  it  had  been  valued  for 
him  to  take,  and  that  he  afterwards  continued  to  use  it.  Even  where 
the  goods  have  remained  in  the  possession  of  the  vendor,  that  has 
not  been  considered  of  itself  sufficient  to  prevent  the  statute  from 
being  satisfied,  if  this  was  at  the  instance  of  the  vendee.  Elmore 
V.  Stone,^Edan  v.  Dudfield.-  The  deceased  never  did  any  act  to  repu- 
diate the  goods,  and  mere  words  will  not  do  for  that  purpose.  How 
otherwise  could  he  have  accepted  them  ?  [Platt,  B.  Wherever  the 
supposed  vendee  exercises  a  dominion  over  the  thing  supposed  to  be 
sold,  is  it  not  for  the  jury  to  say  whether  they  will  refer  it  to  the  sale  or 
not  ?]     The  court  then  called  on 

1  1  Taunt.  458.  2  1  Q.  B.  302,  4  P.  &  D.  656. 


SECT.    IV.]  LILLYVVHITE    V.    DEVEREUX.  177 

Chambers  and  Fortescue,  in  support  of  the  rule.  It  is  quite  impos- 
sible that  the  ruling  of  the  learned  judge  can  l)e  right  on  both  points. 
He  first  tells  the  jury  there  is  no  evidence  of  any  change  in  the  terms 
of  the  tenancy,  the  intended  arrangement  with  Kent  having  gone  off; 
and  he  then  leaves  it  to  the  jury  to  say  whether,  notwithstanding  the 
occupation  by  the  deceased  was  to  be  of  the  same  nature  and  at  the 
game  rent  as  before,  the  fact  of  his  using  the  furniture  was  not  evidence 
of  his  acceptance  of  it  under  the  assumed  sale.  Now  the  original  ten- 
ancy was  of  a  house  and  furniture ;  and  although  the  rent  issues  out  of 
the  realty,  yet  it  is  considered  that  the  realty  is  so  far  improved  by 
the  furnishing  as  to  make  the  eviction  of  the  furniture  occasion  a  sus- 
pension of  the  rent.  How  therefore  can  such  use  of  such  furniture  be 
any  evidence  whatever  of  the  possession  as  owner?  Is  not,  on  the  con- 
trary, the  demand  and  payment  of  rent  for  it  clear  and  conclusive 
evidence  to  the  contrary?  There  is  no  evidence  Avhatever  of  any 
intention  of  the  parties  that  the  deceased  should  thereafter  hold  from 
the  plaintiff  on  the  terms  on  which  he  was  to  have  held  of  Kent  if  the 
arrangement  had  not  gone  off.  The  ceremony  of  the  delivery  of  the 
key  was  with  reference  to  a  holding  under  Kent,  —  a  giving  up  posses- 
sion to  the  deceased  as  his  agent  and  tenant,  —  which  Kent  refused  to 
recognize ;  and  the  plaintiff  consequently  continued  Kent's  tenant.  In 
like  manner  the  verbal  arrangement  respecting  the  furniture  had  refer- 
ence to  the  intended  holding  under  Kent.  Now  it  is  not  pretended 
that  there  was  any  note  in  writing  to  satisfy  the  statute,  and  it  is 
admitted  that  the  deceased  in  Avords  always  repudiated  the  purchase. 
Then,  if  there  was  a  delivery  and  acceptance,  when  was  it  ?  Not  con- 
fessedly at  the  time  the  valuation  was  made  known,  for  at  that  time 
the  plaintiff  had  only  a  reversionary  right  to  sell,  and  rent  was  paid 
and  accepted  up  to  Christmas  following,  as  for  both  house  and  furni- 
ture. Was  it  then  when  the  ceremony  of  the  delivery  of  the  key  took 
place  ?  Certainly  not ;  because  at  that  time  the  present  defendant  is 
proved  to  have  said  to  EUand,  "  How  about  the  furniture  ?  "  to  which 
he  replied,  "You  must  settle  with  Lillywhite  (the  plaintiff)  about 
that ; "  and  it  could  not  be  afterwards,  because,  as  the  jury  have  found, 
according  to  the  opinion  of  the  Chief  Justice,  and  as  the  fact  Avas,  the 
occupation  was  on  the  same  terms  as  before.  There  have  indeed  been 
many  cases  in  which  a  constructive  or  symboHcal  delivery  has  been 
held  sufficient ;  but  in  every  one  some  act  has  been  done  by  the  party 
held  liable,  some  change  in  the  state  of  circumstances  has  occurred, 
indicative  of  an  intention  to  accept.  In  Chaplin  v.  Rogers^  a  stack  of 
hay  standing  on  the  plaintiff's  premises  was  sold ;  the  defendant  had  it 
cut,  and  took  away  part ;  here  Avas  an  act  done  by  the  parties,  and  it 
was  held  sufficient.  So  in  Rohde  v.  Thwaites^  there  Avas  a  sale  of 
sugar  in  bulk,  tAventy  hogsheads,  to  be  filled  by  vendors :  four  Avere 

1  1  East,  192.  2  6  B.  &  C.  388. 

VOL.  I.  12 


178  LILLYWHITE   V.    DEVEREUX.  [CHAP.  I. 

filled  and  delivered,  the  rest  filled  up,  and  notice  given  to  vendees,  who 
said  they  would  send  for  them.  So  in  Rugg  v.  Minett  ^  certain  turpen- 
tine casks  were  filled  up  with  others  by  the  direction  of  the  buyers ; 
and  it  was  held,  the  goods  being  bulky,  to  make  a  complete  transfer  of 
property  to  the  buyers.  Many  other  cases  to  the  same  efiect  might  be 
cited,  but  in  every  one  of  them  there  has  been  some  act  done,  some 
change  of  circumstances  or  dealing  with  the  property,  indicative  of  a 
change  of  ownership.  Here  is  a  total  absence  of  any  such  evidence ; 
the  parties  were  landlord  and  tenant  of  house  and  ftirniture  up  to 
Christmas  ;  they  remained  so  after  Christmas ;  they  held  the  furniture 
as  tenants  before,  and  their  possession  of  it  after  was  consistent  with 
the  same  holding.  Even  in  the  case  which  has  perhaps  gone  further 
than  any  other  upon  this  subject,  Edan  v.  Dudfield,  there  was  some 
evidence ;  for  there  the  defendant  sold  the  goods  again,  and  rendered  a 
debtor  and  creditor  account,  the  goods  bemg  at  the  time  in  his  posses- 
sion ;  and  this  was  held  suflicient  evidence  of  acceptance  to  go  to  the 
JiJry. 

But  though  it  is  generally  true  that  whether  there  is  any  evidence  is 
a  question  for  the  judge,  but  the  effect  of  the  evidence  a  question  for 
the  jury,  there  are  many  cases  to  shoAV  that  evidence  to  bind  a  party 
must  be  of  a  clear  and  decisive  character ;  and  slight  circumstances, 
though  raising  a  suspicion  of  intention,  are  not  to  be  left  to  the  jury  in 
cases  arising  under  the  Statute  of  Frauds.  Thus  in  Tempest  v.  Fitz- 
gerald ^  a  horse  was  sold  by  the  plaintiff"  to  the  defendant,  to  be  taken 
away  and  paid  for  at  a  certain  time.  Shortly  before  the  expiration  of 
that  time,  he  called,  saw  the  horse,  and  rode  him,  and  gave  directions 
about  his  treatment;  and  it  was  left  to  the  jury  to  say  whether  in  so 
doing  he  Avas  exercising  an  act  of  ownership,  or  whether  it  was  merely 
by  way  of  trial ;  and  the  jury  having  found  a  verdict  for  the  plaintiff" 
the  court  set  it  aside  for  misdirection,  and  granted  a  new  trial.  So 
likewise  in  Howe  v.  Palmer^  an  act  was  done  which  in  an  ordinary 
ease  it  would  be  difficult  to  say  was  not  evidence,  of  however  slight  a 
nature ;  but  the  court  held  that  the  question  ought  not  to  be  left  to  a 
jmy,  and  a  rule  was  made  absolute  to  set  aside  the  verdict  and  enter  a 
nonsuit,  leave  having  been  reserved  for  that  jjui-pose.  [Pollock,  C.  B. 
What  do  you  say  is  evidence  that  should  be  left  to  the  jury  ?]  It  is 
difficult  to  lay  doAvn  a  general  rule  on  the  subject ;  but  these  cases, 
and  others  to  the  same  effect,  are  sufficient  to  shew  that  the  act  of 
ownership  must  be  unequiA- ocal,  and  not  every  slight  matter  fi^-om  which 
an  inference  may  be  drawn  is  to  be  left  to  a  jury.  In  the  j^resent  case, 
however,  there  was  no  evidence  whatever,  no  change  of  circumstances 
either  in  the  parties  or  the  goods,  no  change  of  possession  or  of  the 
character  of  possession,  and  the  deceased  from  the  first  to  the  last  repu- 
diated the  contract  of  sale.  Cur.  adv.  vult. 
1  11  East,  210              2  3  B.  &  Aid.  680.                 »  3  b.  &  Aid.  321. 


SECJ.    IV.]  LILLYWHITE    V.    DEVEREUX.  179 

The  judgment  of  the  coui't  was  now  delivered  by 

Aldkuson,  B.  This  case  was  argued  lust  term  before  my  Lord  Chief 
Baron,  my  brother  Piatt,  and  myself  The  motion  was  that  there 
should  be  a  new  trial  unless  the  plaintiff  would  consent  to  reduce  the 
verdict.  There  were  two  demands  :  One  for  the  use  and  occupation  of 
a  house ;  and  the  question  as  to  that  was,  whether  the  rate  of  charge 
should  be  as  for  a  furnished  or  an  unfurnished  house ;  in  the  one  case 
the  amount  of  damages  being,  as  to  this  part  of  the  demand,  £5,  in  the 
other  £17  10s.  The  second  demand  was  for  the  price  of  the  furniture, 
alleged  to  have  been  sold  by  the  plaintiff  to  the  deceased.  This  ques- 
tion turned  upon  the  fact,  whether  there  had  been  an  acceptance  of 
goods  by  the  testator,  so  as  to  take  the  case  out  of  the  operation  of  the 
Statute  of  Frauds :  there  was  no  contract  in  writing  for  the  purchase. 
The  Lord  Chief  Justice  left  the  question  to  the  jmy,  who  found  in 
favor  of  the  plaintiff.  The  goods  in  question,  the  subject  of  dispute, 
were  in  the  possession  of  the  defendant  at  the  time  when  the  contract 
was  made. 

N"o  doubt  can  be  entertained,  after  the  case  of  Edan  v.  Dudfield, 
which  was  well  decided  by  the  Court  of  Queen's  Bench,  that  this  is 
a  question  of  fact  for  the  jury ;  and  that,  if  it  appears  that  the  conduct 
of  a  defendant  in  dealing  with  goods  already  in  his  possession  is 
wholly  inconsistent  with  the  supposition  that  his  former  possession 
continues  unchanged,  he  may  properly  be  said  to  have  accepted  and 
actually  received  such  goods  under  a  contract,  so  as  to  take  the  case 
out  of  the  operation  of  the  Statute  of  Frauds ;  as  for  instance  if  he 
sells  or  attempts  to  sell  goods,  or  if  he  disposes  absolutely  of  the  whole 
or  any  part  of  them  or  attempts  to  do  so,  or  alters  the  nature  of  the 
property,  or  the  like.  But  we  think  such  facts  must  be  clearly  shewn ; 
and  in  this  case,  after  careful  consideration  of  all  the  facts  contained 
in  my  Lord  Chief  Justice's  notes,  we  can  find  no  sufficient  evidence 
of  this  sort.  We  therefore  think  the  verdict  of  the  jury  as  to  this 
part  of  the  case  is  altogether  wrong,  and  that  there  really  was  no 
evidence  of  acceptance  so  as  to  take  this  case  out  of  the  operation  of 
the  Statute  of  Frauds.  And  if  so,  it  is  clear  that  the  subsequent 
possession  by  the  testator  was  the  use  and  occupation  of  a  furnished 
and  not  of  an  unfurnished  house.  We  therefore  think  there  should  be 
a  new  trial  unless  the  plaintiff  consents  to  reduce  the  damages  to 
£17  lOs.  Mule  absolute  accordingly. 


180  FARINA   V.   HOME.  [CHAP.   I. 


FARINA  V.   HOME. 

In 'THE  Exchequer,  November  16,  1846. 

[Reported  in  16  Meeson  Sf  Welshy,  119.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated.  Plea, 
nunquam  indebitatus. 

At  the  trial  before  the  under-sheriff  of  Middlesex  it  appeared  that 
the  action  was  brought  by  the  plaintiff,  the  well-known  manufacturer 
of  eau-de-Cologne,  residing  at  the  city  of  Cologne,  to  recover  from 
the  defendant,  a  dealer  in  eau-de-Cologne  in  London,  the  sum  of 
£15,  price  of  twenty-five  dozen  of  eau-de-Cologne,  which  in  July,  1845, 
the  defendant  had  verbally  ordered  from  the  plaintiff.  It  was  accord- 
ingly sent  by  the  plaintiff  from  abroad  to  a  shipping  agent  of  the 
plaintifi"  in  London  named  Brenchley,  who  received  it  and  warehoused 
it  with  one  Barber  a  wharfinger,  at  the  same  time  informing  the 
defendant  of  its  amval.  On  receipt  of  the  goods  Barber  handed  to 
Brenchley  a  delivery  warrant  dated  21st  July,  whereby  they  were 
made  deliverable  to  Brenchley  or  his  assignee  by  indorsement  on  pay- 
ment of  rent  and  charges  from  the  25th  of  July.  Brenchley  forthwith 
indorsed  and  sent  it  to  the  defendant.  The  defendant  kept  the 
warrant  for  about  ten  months ;  and,  although  repeatedly  apphed  to  to 
pay  the  price  of  and  charges  on  the  goods,  he  did  not  do  so ;  and  he 
refused  also  to  give  back  the  warrant,  saying  that  he  had  sent  it  to  his 
solicitor  and  that  he  intended  to  defend  the  action,  for  he  had  never 
ordered  the  goods ;  and  adding  that  they  would  remain  for  the  present 
in  bond. 

Upon  these  facts  it  was  contended  for  the  defendant  that  there  was 
no  evidence  of  the  delivery  and  acceptance  of  the  goods  sufficient  to 
satisfy  the  Statute  of  Frauds.  The  under-sherifi"  left  the  question  to 
the  jury,  whether  the  defendant  had  accepted  and  received  the  goods, 
stating  that  to  bring  the  case  within  the  statute  it  must  be  an  accept- 
ance with  the  intention  of  taking  possession  as  ownei-.  The  jury  found 
a  verdict  for  plaintiflT,  damages  £16  \\s. 

Ill  Easter  term  Pi-entice  obtained  a  rule  oiisi  for  a  new  trial  on  the 
ground  of  misdirection.     In  this  term  (November  3) 

Thomas  shewed  cause,  and  contended  that  there  had  been  no  mis- 
direction, the  proper  question  having  been  left  to  the  jury ;  and  that 
the  detention  by  the  defendant  for  so  long  a  period  of  the  delivery 
warrant  which  constituted  the  title  to  the  goods,  and  his  declaring 
that  the  goods  should  remain  in  bond,  were  circumstances  that  fully 


SECT.    IV.]  FARINA   V.    HOME. 

warrantod  the  jury  in  inforring  that  he  had  accepted  the/ 
Searle  v.  Kcevcs  ^  and  Bushel  v.  Wheeler." 

Prentice^  in  support  of  the  rule.     There  has  been  no  acceptance  and 
receipt  of  the  goods  within  the  17th  section  of  the  Statute  of  Frauds, 
for  the  defendant's  acceptance  of  the  delivery  warrant  is  not  an  accept- 
ance within  the  statute.     The  words  of  the  17th  section  [are]  that  no 
contract  for  the  sale  of  goods  for  £10  or  upwards  shall  be  good  except 
{inter  alia)  "the  buyer  shall  accept  part  of  the  said  goods  and  actually 
receive   the   same."     To  satisfy  these  words   there   must  be  both  a 
delivery   to   and   acceptance   by  the  buyer   of   the   goods.      Bill   ?j. 
Bament '  is  strongly  Jn  point.      There  the  defendant  ordered  goods 
of  the  plaintiff's  agent,  and  went  to  the  agent's  warehouse  where  the 
goods  were   deposited  and  directed  a  mark  to  be  placed  upon  them  ; 
but  having  subsequently  refused  to  receive  the  goods,  and  an  action 
having  been  commenced  against  him,  he  wrote  in  the  agent's  ledger,  at 
the  bottom  of  a  page  containing  the  statement  of  the  goods  and 
headed  with  the  plaintiff's  name,  the  words  "  Received  the  above," 
which  he  signed.     The  court  held  that  this  was  no  evidence   of  a 
delivery  and  acceptance.     Parke,  B.,  there  says,  after  observing  that 
the  written  receipt  was  some  evidence  of  an  acceptance,  "  But  there 
must  also  be  a  delivery,  and  to  constitute  that  the  possession  must 
have  been  parted  with  by  the  owner  so  as  to  deprive  him  of  the  right 
of  lien."     Now  here  the  goods  remained  in  the  hands  of  the  shipping 
agent  of  the  plaintiff,  who  therefore  retained  his  right  of  lien.     In 
Hanson  v.  Armitage  *  the  evidence  was  that  a  party  resident  in  the 
country  had  been  in  the  habit  of  buying  goods  of  a  London  merchant, 
whose  habit  it  Avas  to  deliver  them  to  a  wharfinger  in  London  to  be 
forwarded  to  the  buyer  by  the  first  ship.     It  was  held  that  the  receipt 
of  such  goods  by  the  wharfinger  was  not  an  acceptance  by  the  buyer 
sufficient  to  satisfy  the  Statute  of  Frauds ;  and  Abbott,  C.  J.,  in  giving 
judgment  referred  to  Howe  v.  Palmer,'^  where  it  was  held  that  there 
could  be  no  actual  acceptance  so  long  as  the  buyer  retained  the  right 
to  object  to  either  the  quantum  or  the  quality  of  the  goods.      But 
Bentall   v.  Burn  ®  is   directly   in   point.      It   was   there   held   that   a 
vendee's  acceptance  of  a  delivery  order  of  the  London  Dock  Company 
was  not  an  acceptance  of  the  goods  themselves  within  the  Statute  of 
Frauds.     He  also  referred  to  Zwinger  v.  Samuda.'' 
The  judgment  of  the  court  ^  was  now  delivered  by 
Parke,  B.     In  this  case,  which  was  argued  before  us  in  the  absence 
of  the  Lord  Chief  Baron  a  few  days  ago,  the  only  point  Ave  Avished  to 
consider  Avas,  whether  there  Avas  sufficient  CA'idence  of  the  acceptance 
and  actual  receipt  of  the  goods  to  satisfy  the  17th  section  of  the  Stat- 

1  2  Esp.  598.  2  8  Jurist,  532.  3  9  M.  &  W.  36. 

«  5  B.  &  Aid.  557.  »  3  B.  &  Aid.  321.  6  3  B.  &  Cr.  423. 

7  7  Taunt.  265.  8  parke,  B.,  Alderson,  B.,  and  Kolfe,  B. 


182  FARINA  V.    HOME.  [CHAP.  I. 

ute  of  Frauds.     The  evidence  as  to  this  part  of  the  case  was  that,  after 
the  defendant  had  verbally  ordered  a  quantity  of  eau-de-Cologne,  and 
at  the  price  of  more  than  £10,  from  the  plaintiflP's  agent  in  London 
(the  plaintiff  residing  at   Cologne),  a  case  containing  the  quantity 
ordered  was  received  by  the  agent,  and  warehoused  by  him  with  a 
wharfinger  and  warehouse-keeper  who  gave  for  it  a  document  dated 
the  21st  of  July  which  is  called  a  warrant,  by  which  the  case  was 
made  dehverable  to  the  agent  or  his  assignee  by  indorsement,  on  pay- 
ment of  rent  and  charges  from  the  25th  of  July,  and  the  agent  indorsed 
it  to  the  defendant  and  sent  it  to  him.     This  warrant  the  defendant 
kept  for  some  months.     He  was  repeatedly  ai^plied  to  for  the  charges 
upon  and  price  of  the  eau-de-Cologne,  which  he  did  not  pay ;  nor  did 
he  return  the  warrant  when  asked  for  it,  but  said  he  had  sent  it  to  his 
soHcitor,  and  meant  to  defend  the  action,  as  he  had  never  ordered  the 
goods ;  and  he  further  said  the  goods  would  remain  at  present  in  bond. 
It  was  contended  on  the  trial  before  the  under-sheriff  that  there  was 
no  such  evidence  of  the  acceptance  and  receipt  of  the  goods  as  to  bind 
the  bargain.     The  under-sheriff  left  the  question  of  receipt  and  accept- 
ance to  the  jury,  stating,  and  correctly  stating,  that  to  bring  the  case 
within  the  statute  the  acceptance  must  be  with  the  intention  of  taking 
possession  as  owner.     The  jury  found  a  verdict  for  the  plaintiff.     The 
under-sheriff  ordered  the  writ  of  trial  to  be  retained,  in  order  to  allow 
time  for  an  application  to  the  court.     On  a  motion  for  a  new  trial  we 
intimated  our  opinion  that  there  was  evidence  to  go  to  the  jury  of  the 
defendant's  acceptance  of  the  goods  by  retaining  the  delivery  warrant ; 
but   Mr.   Prentice  insisted  that  there  was  no  sufficient  evidence  of 
the  actual  receipt  of  the  goods,  that  is  the  delivery  of  the  possession  of 
the  goods  on  behalf  of  the  vendor  to  the  vendee,  and  the  receipt  of  the 
possession  by  the  vendee  ;  and  that  the  delivery  and  receipt  of  the 
warrant  was  not  in  effect  the  same  thing  as  the  delivery  and  receipt  of 
the  goods ;  and  we  are  all  of  that  opinion.     This  warrant  is  no  more 
than  an  engagement  by  the  wharfinger  to  deliver  to  the  consignee  or 
any  one  he  may  appoint ;  and  the  wharfinger  holds  the  goods  as  the 
agent  of  the  consignee  (who  is  the  vendor's  agent),  and  his  possession 
is  that  of  the  consignee  until  an  assignment  has  taken  place,  and  the 
wharfinger  has  attorned,  so  to  speak,  to  the  assignee,  and  agreed  with 
him  to  hold  for  him.     Then,  and  not  till  then,  the  wharfinger  is  the 
agent  or  bailee  of  the  assignee,  and  his  possession  that  of  the  assignee, 
and  then  only  is  there  a  constructive  delivery  to  him.     In  the  mean 
time  the  warrant,  and  the  indorsement  of  the  warrant,  is  nothing  more 
than  an  offer  to  hold  the  goods  as  the  warehouseman  of  the  assignee. 
The  case  is  in  principle  the  same  as  that  of  Bentall  v.  Burn,  and  others, 
which  are  stated  and  well  discussed  in  a  recent  able  work  of  Mr.  Black- 
burn, "  On  the  Contract  of  Sale,"  pp.  27-41,  297 ;  and  in  Mr.  C.  Addi- 
son's work,  p.  70,     We  all  therefore  think  that,  though  there  was 


SECT.    IV.]  CURTIS    V.    PUGH.  183 

sufficient  evidence  of  the  acceptance  if  the  goods  had  been  delivered 
to  the  defendant,  there  is  none  of  the  receipt ;  and  therefore  there 
must  be  a  new  trial.  Hule  absolute. 


CURTIS  V.  PUGH. 

In  the  Queen's  Bench,  February  11,  1847. 

[Reported  in  10  Queen's  Bench  Reports,  111.] 

Debt  for  sroods  sold  and  delivered,  and  on  an  account  stated.  Par- 
ticulars,  claiming  £46  18s.  Sd.  for  two  hogsheads  of  glue.  Plea,  never 
indebted. 

On  the  trial  before  Lord  Denman,  C.  J.,  at  the  sittings  in  London 
after  Hilary  term,  1846,  it  appeared  that  the  defendant  ordered  of  the 
plaintiff  (by  oral  direction  to  his  agent)  three  hogsheads  of  Scotch 
glue,  which  was  to  be  of  the  description  called  "  Cox's  best."  The 
plaintiff  on  31st  October,  1845,  sent  two  hogsheads  (which  Avere  all  he 
was  able  to  supply  at  the  time)  to  a  wharf  in  London,  from  which  the 
defendant  removed  them  to  his  own  warehouse,  and  there  unpacked 
the  whole  of  the  glue  and  put  it  into  twenty  bags.  On  examination 
the  defendant  considered  the  glue  inferior  in  quaUty  to  "  Cox's  best 
glue ; "  and  this  was  communicated  to  the  plaintiff's  agent  on  1st 
November.  The  plaintiff's  brother  on  his  behalf  inspected  the  glue 
on  Monday,  November  3d,  and  admitted  that  some  part  of  the  glue 
(but  not  an  unusual  proportion)  Avas  of  inferior  quality ;  and  on  the 
plaintiff's  part  he  offered  to  make  an  allowance  in  the  price,  but 
refused  to  take  the  glue  back,  because  it  had  been  unpacked  and  put 
into  bags ;  and  he  stated  in  evidence  that  it  was  quite  unnecessary  to 
do  more  than  take  a  cake  or  two  out  for  the  pur})Ose  of  examining  the 
contents  of  the  hogsheads.  The  defendant  rcj^acked  the  whole,  and 
sent  it  back  to  the  plaintiff,  who  declined  to  receive  it.  It  was  stated 
in  evidence  that  glue,  if  taken  out  of  the  barrels  in  which  it  is  packed, 
cannot  be  replaced  there  in  the  same  condition. 

At  the  close  of  the  plaintiff's  case  the  defendant's  counsel  contended 
that  the  plaintiff  must  be  nonsuited,  for  that  there  had  been  no  contract 
for  the  two  hogsheads  of  glue  within  §  17  of  the  Statute  of  Frauds, 
29  Car.  2,  c.  3,  the  defendant  not  having  signed  any  memorandum 
in  writing,  and  not  having  accepted  any  part  of  the  goods.  Tliey 
urged  that  there  had  been  no  acceptance,  because  it  did  not  appear 
that  the  defendant  had  done  any  act  with  a  view  of  taking  posses- 
sion as  owner.  The  Lord  Chief  Justice  was  of  opinion  that 
the  defendant  had  not  in  fact  intended  to  accept  the  glue,  but  his 


184  CURTIS  V.    PUGH.  [chap.   I. 

Lordship  thought  that  if  the  defendant  had  done  any  act  altering 
the  condition  of  the  article,  that  was  an  acceptance ;  and  that  the 
question  for  the  jury  would  be,  whether  or  not  the  act  of  putting 
the  glue  into  bags  had  altered  its  condition,  fle  reserved  leave  to. 
move  to  enter  a  nonsuit ;  and  the  defendant's  counsel  then  put  in  evi- 
dence as  to  the  quality  of  the  glue.  The  Lord  Chief  Justice  left  it  to 
the  jury  to  say  whether  the  glue  was  Cox's  best,  and  whether  the 
defendant  had.  dealt  with  it  so  as  to  make  it  his  own,  or  had  done  no 
more  than  was  necessary  for  an  examination  of  the  quality.  The  jury 
decidec]  these  questions  in  the  plaintiff's  favor  and  returned  a  verdict 
for  him. 

Martin,  in  Easter  term,  1846,  obtained  a  rule  to  shew  cause  why  a 
nonsuit  should  not  be  entered.  He  cited  Phillips  v.  BistoUi^  and 
Elliott  ?;.  Thomas.2 

Crowder  and  Petersdorff  now  shewed  cause.  The  defendant,  having 
done  more  than  was  necessary  for  a  fair  examination,  and  thereby 
altered  the  condition  of  the  goods,  did  in  effect  accept  them.  Phillips 
V.  Bistolli,  cited  in  moving  for  this  rule,  shews  that  it  is  a  question  for 
the  jury  whether  there  was  a  delivery  or  not:  there  the  question 
was  not  submitted  to  them ;  and  there  was  clearly  no  case  of  delivery. 
[LoKD  Denman,  C.  J.  There  must  be  both  a  delivery  and  an  accept- 
ance proved.  Here  the  evidence  showed  a  rejection.  I  thought  at 
the  trial  that,  if  there  had  been  any  unnecessary  alteration  in  the  state 
of  the  thins  while  in  the  defendant's  hands,  he  must  be  taken  to  have 
accepted  it.  But  in  that  I  think  I  went  too  far.  Patteson,  J.  A 
confusion  sometimes  arises  in  applying  the  Statute  of  Frauds  to  the 
case  of  goods  sold  and  delivered.  If  the  purchaser  actually  takes 
the  goods  into  his  possession,  that  is  an  acceptance  independent  of  the 
statute.  But  there  may  be  an  acceptance  sufficient  to  satisfy  the  stat- 
ute, which  may  yet  not  support  an  action  for  goods  sold  and  delivered.] 
The  plaintiff  here  does  not  rely  on  an  acceptance  of  part.  The  whole 
quantity  of  goods  is  put  into  his  hands ;  and  he  is  to  explain  why  he 
does  not  pay  for  them.  [Patteson,  J.  If  he  had  looked  them  over 
and  selected  them  long  before,  and  when  they  came  to  his  warehouse 
had  refused  to  have  them,  that  would  not  be  a  case  of  goods  sold  and 
delivered.  "Wightman,  J.  When  do  you  say  the  delivery  here  was 
complete?]  On  the  31st  of  October.  A  party  must  not  have  an 
unlimited  time  to  decide  whether  he  will  accept  goods  or  not ;  and 
here  the  defendant  had  so  dealt  with  them  that  they  could  not  be 
restored  in  the  state  in  which  they  were  sent.  [Patteson,  J.  Was 
it  not  for  the  jury  to  say  whether  the  acts  of  the  defendant  Avere  done 
with  the  intention  of  taking  the  goods  ?  Lord  Denman,  C.  J.  The 
strongest  way  of  putting  the  case  for  you  would  have  been  that  his 
conduct  amounted  to  a  provisional  acceptance,  if  the  glue  should  prove 
1  2  B.  &.  C.  511.  2  3  M.  &  W.  170.    See  the  dicta  in  p.  174. 


SECT.    IV.]  BEAUMONT    V.    BRENGERI.  185 

to  be  Cox's  best  glue-]  After  taking  the  whole  out  and  putting  into 
bags,  it  was  too  late  to  insist  on  that  proviso.  [Wightman,  J. 
According  to  you  the  defendant  was  bound  whether  the  glue  turned 
out  to  be  Cox's  best  or  not.  Coleridge,  J.  If  the  party  examines 
the  goods  bona  fide  with  a  view  of  ascertaining  the  quality,  but  so 
carelessly  as  to  do  them  great  harm,  can  you  say  that  that  amounts  to 
an  acceptance,  whatever  be  the  result  of  the  examination  ?  Wight- 
man,  J.  Elliott  V.  Thomas  was  cited  in  moving.]  That  case,  as 
to  the  point  decided,  is  rather  in  favor  of  the  plaintiff  here  than  of  the 
defendant.  If  the  purchaser  takes  goods  professedly  for  the  purpose 
of  examination,  and  keeps  them  a  month,  can  it  be  said  that  he  does 
not  accept  them?  [Wightman,  J.  If  the  time  were  quite  unreason- 
able, the  plaintiff  might  perhaps  treat  the  detention  as  an  acceptance.] 
If  so,  there  are  circumstances  under  which  an  acceptance  may  be 
implied,  though  in  fact  not  intended.  But  the  question,  whether  or 
not  the  time  of  detention  was  reasonable,  ought  to  go  to  the  jury :  if 
there  was  any  evidence  upon  it,  the  judge  could  not  on  his  own  view 
of  the  subject  direct  a  nonsuit.  [Lord  Denman,  C.  J.  You  acqui- 
esced in  my  manner  of  treating  the  case.  When  Mr.  Martin  applied 
for  a  nonsuit,  I  stated  my  view  of  the  questions  to  be  left  to  the  jury, 
and  reserved  leave  to  move  for  a  nonsuit  if  the  finding  upon  them 
should  be  for  the  plaintiff.  You  did  not  desire  to  have  the  jury  asked 
whether  or  not  a  reasonable  time  had  elapsed.]  The  question  actually 
put  to  them  involved  that.  [Lord  Denman,  C.  J.  It  was  not  in  my 
mind.  In  what  I  stated  I  certainly  carried  the  doctrine  as  to  accept- 
ance a  step  farther  than  I  ought.  But  if  I  was  wrong  in  not  taking 
the  opinion  of  the  jury  as  to  reasonableness  of  time,  the  only  conse- 
quence is,  that  I  did  not  put  a  question  which  they  would  have  decided 
against  you.] 

Martin  and  Hugh  Hill  were  not  heard  in  support  of  the  rule. 

Pattesox,  J.    My  Lord  Chief  Justice  went  a  step  farther  in  his 
ruling  than  the  authorities  warrant. 

Coleridge  and  Wightman,  JJ.,  and  Lord  Denman,  C.  J.,  concurred. 

Mule  absolute} 


BEAUMONT  v.   BRENGERI. 

In  the  Common  Pleas,  December  9,  1847. 

[Reported  in  5  Common  Bench  Reports,  301.] 

Debt  for  goods  sold  and  delivered,  goods  bargained  and  sold,  work 
and  materials,  and  money  found  due  upon  an  account  stated.  Plea, 
nunquam  indebitatus.  .  .  . 

1  See  Benjamin  on  Sale,  119.  —  Ed. 


186  BEAUMONT  V.   BRENGERI.  [CHAP.   I. 

The  particulars  of  demand  were  as  follows :  — 

This  action  is  brought  to  recover  the  sum  of  £72  Os.  6d.  upon  the  following 
account : — 
1846,  November.     A  new   driving-seat   cab-phaeton,    with  doors, 

head,  and  folding  shutter £70    Os.  Od. 

To  plating  the  wheel-caps   with   silver,  plating  the  door- 
handles, and  exchanging  the  brass  bead  for  silver-plated     .      1  18     0 
To  washing  and  cleaning  the  phaeton  after  use 0    2     6 


£72    Os.  6d. 


Above  are  the  particulars  of  the  plaintiff's  demand  in  this  action,  and  he  will 
rely  on  all  or  either  of  the  counts  of  the  declaration  for  the  recovery  thereof. 

The  cause  was  tried  before  Coltman,  J.,  at  the  last  sitting  in  London 
in  Hilary  term  last.  The  facts  were  as  follows :  In  the  early  part  of 
November,  1846,  tlie  defendant  called  at  the  shop  of  the  plaintiff,  a 
coachmakei',  and  there  saw  a  carriage  which  he  agreed  to  buy  for  the 
sum  of  £70,  at  the  same  time  giving  directions  to  the  plaintiff  to  remove 
the  brass  beading,  and  to  substitute  plated,  and  to  make  some  other 
slight  alterations.  These  alterations  having  been  made,  the  defendant 
again  saw  and  approved  of  the  carnage,  and  requested  that  it  might 
remain  in  the  plaintiff's  back  shop  until  he  was  ready  to  ship  it  for 
Denmark ;  at  the  same  time  observing  that  he  would  make  use  of  it  a 
few  times,  in  order  that  it  might  pass  at  the  custom  house  for  second- 
hand. Accordingly  on  Saturday  the  14th  of  November  the  defendant 
requested  the  plaintiff  to  liire  a  horse  and  man  and  send  them  to  his 
house  on  the  following  day  with  the  carriage,  as  he  wished  to  drive 
round  the  park.  This  was  done  (the  defendant  paying  135.  for  the 
hire  of  the  horse  and  man) ;  and  the  defendant  after  using  the  carriage 
for  a  few  hours  returned  it  to  the  plaintiff,  and  afterwards  refused  to 
accept  or  pay  for  it. 

On  the  part  of  the  defendant  it  was  insisted  that  there  was  no  evi- 
dence to  go  to  the  jury  of  any  delivery  or  acceptance  of  the  carriage 
within  the  Statute  of  Frauds ;  and  that  the  contract,  if  any,  not  being 
complete  until  Sunday  the  15th  of  November,  it  was  void  by  the  29 
^ar.  ^,  c.  I  • 

Under  the  direction  of  the  learned  judge,  a  verdict  was  taken  for 
the  plaintiff  for  the  sum  claimed  by  the  particulars,  leave  being  reserved 
to  the  defendant  to  move  to  enter  a  nonsuit  if  the  court  should  think 
the  objections  well  founded. 

Prentice  in  the  course  of  the  same  term  accordingly  obtained  a  rule 
nisi.     Upon  the  first  point  he  cited  Maberley  v.  Sheppard,^  Elliott  v. 

*  This  question  was  raised  by  special  pleas,  which,  as  well  as  the  arguments  of 
counsel  upon  them,  have  been  omitted.  —  Ed. 
2  10  Bing.  99, 3  M.  &  Scott,  436. 


SECT.    IV.]  BEAUMONT   V.    BRENGERI.  187 

Thomas,^   Tempest  v.  Fitzgercalcl,^   Bushel  v.   Wlieeler,'   Norman   u. 
Phillips,*  Phillips  v.  Bistolli,^  and  Hanson  v.  Annitage,*'  .  .  . 

John  Henderson  now  shewed  cause.  There  was  a  complete  action- 
able contract  prior  to  the  Sunday,  and  consequently  the  second  point 
does  not  properly  arise  here.  The  evidence  shewed  that  the  defendant 
selected  the  particular  carriage,  desired  alterations  to  be  made  in  it, 
and  adoi)ted  it  and  treated  it  as  his  OAvn  after  the  alterations  had  been 
made.  The  case  of  Wright  v.  Percival  "^  is  quite  conclusive.*  ...  In 
Rohde  V.  Thwaites,^  A.,  having  in  his  warehouse  a  quantity  of  sugar  in 
bulk  more  than  sufficient  to  fill  twenty  hogsheads,  agreed  to  sell  twenty 
hogsheads  to  B. ;  but  there  was  no  note  in  writing  of  the  contract 
sufficient  to  satisfy  the  Statute  of  Frauds.  Four  hogsheads  were 
delivered  to  and  accepted  by  B.  A.  filled  up  and  appropriated  to  B. 
sixteen  other  hogsheads,  and  inforaaed  him  that  they  were  ready,  and 
desired  him  to  take  them  away,  B.  said  he  would  take  them  as  soon 
as  he  could  ;  and  it  was  held  that  the  appropriation  having  been  made 
by  A.  and  assented  to  by  B.  the  property  in  the  sixteen  hogsheads 
thereby  passed  to  the  latter,  and  that  their  value  might  be  recovered 
by  A.  under  a  count  for  goods  bargained  and  sold.  [Cresswell,  J. 
There  the  whole  was  one  entire  contract.]  The  decision  is  not  put 
upon  that  ground,  but  upon  the  ground  that  there  was  an  appropria- 
tion of  the  sixteen  hogsheads  by  the  plaintiffs,  assented  to  by  the 
defendant.^"  .  .  .  Baines  v.  Jevons  "  is  an  authority  to  the  same  effect. 
Tempest  ?j.  Fitzgerald  was  the  case  of- a  ready-money  bargain.  In 
Maberley  v.  Sheppard  the  chattel  was  in  fieri,  and  consequently  there 
could  be  no  acceptance.  And  Elliott  v.  Thomas  is  an  authority  in 
favor  of  the  plaintiff*,  as  shewing  that  that  which  took  place  here 
amounted  to  an  acceptance  of  the  carriage  subject  only  to  the  plain- 
tiff''s  lien  for  the  price.  .  .  . 

Prentice,  in  support  of  the  rule.  There  has  been  no  delivery  or 
acceptance  to  satisfy  the  Statute  of  Frauds.^^  ...  In  the  present  case 
there  clearly  was  no  deUvery  of  the  carriage.  [Maule,  J,  The 
defendant  dealt  with  the  carriage  as  his  own.  Assuming  that  the  man 
who  drove  it  on  the  Sunday  Avas  the  plaintiff''s  servant  and  had 
directions  from  the  plaintiff'  to  bring  back  the  carriage,  still  that  Avhich 
passed  clearly  amounted  to  an  acceptance,  subject  to  a  contract  on  the 
defendant's  part  to  send  the  carriage  back  to  the  plaintiff"  and  re-pledge 
it  for  the  price.     Otherwise  we  must  suppose  an  absurdity,  viz.,  that 

I  3  M.  &  W.  170.  2  3  B.  &  Aid.  G80.  ^  g  Jurist,  532. 

4  14  M.  &  W.  277.  6  2  B.  &  C.  511,  3  D.  &  R.  822. 

6  5  B.  &  Aid.  557,  1  D.  &  R.  128. 

7  8  Law  Journ.  (n.  s.)  Q.  B.  258. 

8  The  learned  counsel  here  stated  that  case.  —  Ed.         ^  6  B.  &  C.  388. 

10  The  learned  counsel  here  stated  the  case  of  Elliott  v.  Pybus,  10  Bing.  512.  —Ed. 

H  7  Car.  &  P.  288. 

12  The  learned  counsel  here  stated  the  case  of  Bill  v.  Bament,  9  M.  &  W.  36.  —  Ed. 


188  BEAUMONT   V.    BRENGERI.  [CHAP.    I. 

the  plaintiff  would  allow  a  new  carriage  to  be  driven  about  on  trial.] 
In  Elliott  V.  Pybus  there  had  been  an  actual  appropriation  of  part  of 
the  goods.  [Ckesswell,  J.  This  was  a  sale  of  a  specific  chattel :  not 
so  in  that  case.]  The  defendant  was  at  liberty  to  object  that  the  car- 
riage was  not  completed  according  to  order.  In  Elmore  v.  Stone  ^  it 
was  held  that,  if  a  man  bargains  for  the  purchase  of  goods,  and  desires 
the  vendor  to  keep  them  in  his  possession  for  an  especial  purpose  for 
the  vendee,  and  the  vendor  accepts  the  order,  this  is  a  sufficient  deliv- 
ery of  the  goods  within  the  Statute  of  Frauds.  But  that  case  is  incon- 
sistent with  Carter  v.  Toussaint.^  .  .  . 

CoLTMAN,  J.    It  appears  to  me  that  there  was  a  sufficient  delivery 
and  acceptance  of  the  carriage  in  question  previously  to  Sunday  the 
15th  of  November,  1846,  to  satisfy  the  17th  section  of  the  Statute  of 
Frauds.     In  Elmore  v.  Stone  it  was  held  by  this  court  that,  if  a  man 
bargains  for  the  purchase  of  goods,  and  desires  the  vendor  to  keep 
them  in  his  possession  for  an  especial  purpose  for  the  vendee,  and  the 
vendor  accepts  the  order,  this  is  a  sufficient  delivery  of  the  goods 
within  the  Statute  of  Frauds.     In  Carter  v.  Toussaint,^  Abbott,  C.  J., 
deals  with  that  case  thus :   "  In  the  case  of  Elmore  v.  Stone,  indeed, 
the  custody  was  of  the  same  kind  as  in  this  case.     There  the  plaintiff 
would  have  a  right  to  say  to  the  defendant,  '  You  shall  not  have  the 
horse  until  you  pay  me  the  price ; '  but  the  court  thought  that,  in  con- 
sequence of  the  plaintiff's  having  consented  to  put  the  horse  into 
another  stable,  and  to  keep  it  there  at  the  defendant's  charge,  he  had 
changed  the  character  in  which  he  originally  held  the  horse,  and  instead 
of  holding  him  as  his  own  held  him  for  the  defendant  as  his  livery- 
stable  keeper.     But  there  is  nothing  of  that  kind  in  this  case.     So  long 
as  the  horse  remained  at  the  plaintiff's  stables,  and  before  it  went  to 
Kimpton  Park,  the  plaintiff  was  the  keeper  of  it,  not  as  a  livery-stable 
keeper,  but  as  owner,  and  he  had  a  right  to  retain  it  until  the  money 
was  paid.     Afterwards  by  the  defendant's  desire  the  horse  is  sent  to 
the  park ;  and  if  it  was  sent  there  and  entered  in  the  defendant's  name, 
and  by  his  desire,  I  should  have  thought  that  that  was  an  actual  accept- 
ance of  the  horse.     But  the  evidence  is  that  it  was  entered  in  the 
plaintiff's  name.     The  defendant  therefore  had  no  right  by  law  to  go 
to  the  owner  of  the  park  and  demand  the  possession  of  the  horse, 
because  the  park-keeper  would  not  be  authorized  to  part  with  it  with- 
out the  plaintiff's  order.     Therefore  the  character  of  owner  belongs  to 
the  plaintiff  at  the  time  of  the  sale,  and  remained  unchanged,  notwith- 
standing the  horse  was  sent  to  the  park,  where  it  is  entered  in  his  own 
name  without  any  control  whatever  being  vested  in  the  defendant." 
And  Bayley,  J.,  says :  "  The  case  of  Elmore  v.  Stone  certainly  comes 
very  near  this ;  but  there  is  a  distinction.     In  that  case  the  original 
proprietor  of  the  horse  had  one  stable  in  which  he  kept  horses  as, 
1  1  Taunt.  458.  2  5  b.  &  Aid.  855, 1  D.  &  R.  515. 


SECT.    IV.]  BEAUMONT   V.    BRENGERI.  189 

owner,  and  another  in  which  he  kept  them  as  a  liverj^-stable  kee])er, 
and  by  removing  the  liorse  from  the  one  to  the  other  it  was  considered 
that  he  had  consented  to  divest  himself  of  the  character  of  owner,  and 
conveyed  the  property  in  the  horse  to  the  buyer  without  retaining  any 
lien  for  the  price.  That  was  the  ground  upon  which  the  decision  in 
the  Common  Pleas  was  founded.  I  can  sec  nothing  of  that  kind  here. 
There  is  no  consent  on  tlie  part  of  the  plaintiff  to  divest  himself  of  the 
possession,  or  to  abandon  his  right  to  retain  the  horse -until  the  price 
was  paid."  In  cases  of  this  sort  therefore  it  seems  that  the  question 
will  be,  whether  the  vendor  held  the  subject-matter  of  the  sale  as 
owner,  or  merely  as  a  warehouse  keeper  for  the  vendee.  Looking  at 
the  evidence  in  this  case,  it  appears  to  me  that  there  is  enough  to  shew 
an  agreement  between  the  parties  that  the  plaintiff  should  hold  the 
carriage  as  a  warehouse  keeper  for  the  defendant.  It  was  proved  that 
the  defendant  had  seen  the  carriage,  and  had  had  alterations  inade  in 
it,  and  had  expressed  his  intention  to  use  it  a  few  times  before  embark- 
ing it,  so  that  it  might  pass  as  a  second-hand  carriage ;  and  that  at  his 
request  it  was  placed  by  the  plaintiff"  in  his  back  shop,  where  it  stood 
at  the  disposal  of  the  defendant.  It  was  further  proved  that  on  Sat- 
urday the  14th  of  November  the  defendant  called  at  the  plaintiff's 
shop,  and  desired  that  a  horse  might  be  hired  for  him,  and  that  the 
carriage  should  be  sent  to  his  house  on  the  following  day  (Sunday) ; 
which  was  accordingly  done.  In  considering  whether  the  plaintiff' had 
at  this  time  agreed  to  hold  the  carriage  as  the  defendant's  agent,  Ave 
may  look  at  what  took  place  on  the  Sunday.  Is  it  reasonable  to 
suppose  that  the  plaintiff  would  have  allowed  the  carriage  to  be  used, 
—  which  would  have  reduced  it  to  the  condition  of  a  second-hand  arti- 
cle,—  if  it  had  not  been  well  understood  between  the  parties  that  he 
had  ceased  to  be  the  owner  ?  I  can  come  to  no  other  conclusion  than 
that  the  plaintiff  had  assented  to  the  defendant's  proposal  to  keep  the 
carriage  in  the  shop  as  his  the  defendant's  agent.  I  therefore  tliink 
there  was  a  sufficient  delivery  and  acceptance,  independently  of  what 
took  place  on  the  Sunday,  to  satisfy  the  statute,  and  consequently  that 
the  plaintiff  was  entitled  to  the  verdict. 

Maule,  J.  I  also  think  there  was  evidence  for  the  jury  of  a  com- 
plete bargain  and  sale  prior  to  the  Sunday.  It  appears  that  the  car- 
riage had  been  completely  finished  before  that  day  to  the  satisfaction 
of  the  defendant ;  and  that  he  had  had  certain  alterations  made  in  it, 
which  Avas  to  some  extent  exercising  the  right  of  ownership.  But 
when  the  defendant  directed  the  plaintiff  to  keep  the  carriage  for  Inm, 
saying  that  he  intended  to  take  it  out  a  few  times,  in  order  to  make  it 
pass  as  a  second-hand  carriage,  he  was  clearly  assuming  to  deal  with  it 
as  his  own.  This,  coupled  with  the  fact  of  the  carriage  having  been  at 
the  defendant's  request  sent  to  his  house  on  the  Sunday  for  the  pur- 
pose of  driving  in  the  park,  shews  an  assumption  of  ownership  on  the 


--* 


190  SAUNDERS   V.    TOPP.  [CHAP.    I. 

part  of  the  defendant,  and  an  acquiescence  on  the  part  of  the  plaintiff, 
that  well  justified  the  jury  in  coming  to  the  conclusion  that  the  car- 
riage was  then  no  longer  the  property  of  the  plaintiff,  but  had  become 
the  property  of  the  defendant.  That  which  took  place  on  the  Sunday 
was  no  violation  of  the  statute  29  Car.  2,  c.  7.  And  even  if  it  were,  it 
does  not  the  less  serve  to  throAV  light  upon  the  previous  part  of  the 
transaction. 

Cresswell,  J.  I  am  of  the  same  opinion.  There  was  ample  evi- 
dence from  which  the  jury  might  reasonably  find  a  verdict  for  the 
plaintiff.  There  was  evidence  of  a  specific  bargain  for  the  particular 
carriage,  and  that  when  finished  to  the  defendant's  satisfaction  the 
carriage  was  removed  into  the  back  shop.  That  left  it  equivocal 
whether  it  had  been  accepted  by  the  defendant  and  parted  with  by 
the  plaintiff;  the  result  is  to  be  judged  of  by  the  subsequent  conduct 
of  the  parties.  The  defendant  assumed  to  be  the  owner  by  ordering 
the  carriage  out  for  a  drive.  And  the  plaintiff  by  his  conduct  also 
shews  that  he  no  longer  considered  himself  as  the  owner ;  for  it  is  by 
no  means  probable  that  he  would  have  allowed  the  carriage  to  go  out, 
unless  he  had  considered  the  bargain  to  be  complete.  Using  it  even  for 
a  short  time  would  of  course  materially  depreciate  it.  I  therefore 
think  the  jury  were  warranted  in  finding  that  the  property  in  the 
carriage  had  passed  to  the  defendant  by  what  had  taken  place  prior  to 
the  Sunday,  and  that  the  plaintiff  retained  possession  merely  in  the 
character  of  agent. 

V.  Williams,  J.  I  am  of  the  same  opinion.  For  the  reasons  given 
by  my  learned  brothers  I  think  that,  if  the  judge  had  left  it  to  the  jury 
to  say  whether  or  not  there  had  been  a  delivery  and' acceptance  of  the 
carriage  before  the  Sunday,  there  would  have  been  nothing  objection- 
able in  his  so  doing,  and  that  a  verdict  for  the  plaintiff  in  that  case 
would  have  been  justified  by  the  evidence.  Rule  discharged. 


SAUNDERS  V.  TOPP. 

In  the  Exchequer,  June  22, 1849. 

[Reported  in  4  Exchequer  Reports,  390.] 

Debt,  for  the  price  of  ewes,  lambs,  and  sheep,  sold  and  delivered. 
Plea,  nunquani  indebitatus. 

At  the  trial  before  Lord  Denman,  C.  J.,  at  the  last  Dorchester 
spring  assizes,  the  following  facts  appeared  :  The  defendant  went  with 
the  plaintiff  to  a  farm  of  the  plaintiff's  at  Lytchett,  and  there  selected 
from  a  flock  forty-five  couple  of  ewes  and  lambs,  which  he  agreed  to 


SECT.    IV.]  SAUNDERS    V.    TOPP.  191 

buy  at  the  price  of  40.s,  a  coviplc.  He  also  selected  a  stag  sheep  and  a 
dry  ewe  at  40s.  each.  These  he  directed  the  plaintiff's  shepherd  to 
send  to  a  field  of  his  at  Wimborne.  The  plaintiff  had  some  sheep  at 
another  farm  of  his  called  Morden,  which  the  defendant  had  not  seen ; 
and  it  was  in  the  course  of  the  same  day  agreed  between  them  that 
the  plaintiff  should  send  to  the  defendant  at  "Wimborne  two  coiij)le  of 
the  ewes  and  lambs  from  the  Morden  farm,  at  the  price  of  4U6\  a 
couple.  The  plaintiff's  shepherd  accordingly  drove  the  forty-five 
couple  of  ewes  and  lambs  from  Lytchett,  and  the  two  couple  fi-om 
Morden,  and  also  the  stag  and  dry  ewe,  to  "Wimborne,  and  left  them 
there  in  the  defendant's  field.  The  defendant  did  not  see  them  there, 
but  two  days  afterwards  he  sent  his  man  to  fetch  them  to  his  residence 
at  a  place  called  Martin,  about  fourteen  miles  distant  from  "Wimborne. 
On  the  arrival  of  the  sheep  at  Martin  the  same  afternoon  the  defendant 
saw  them  and  counted  them  over,  and  said,  "  It  is  all  right."  He  also 
said  with  respect  to  the  sheep  from  Morden,  "  They  will  not  match 
very  well  with  those  that  I  have  got."  The  following  day  the  defend- 
ant wrote  to  the  plaintiff,  complaining  that  the  latter  had  not  sent  the 
same  sheep  which  he  had  bought,  and  stating  that  unless  the  plaintiff 
allowed  a  deduction  of  £2  from  the  price  he  would  not  pay  for  them, 
and  that  the  plaintiff  might  take  them  away.  The  plaintiff  insisted 
that  the  sheep  were  the  same,  and  refused  to  make  any  abatement  in 
the  price,  whereupon  the  defendant  sent  the  sheep  back.  It  was  sub- 
mitted on  the  part  of  the  defendant  that  the  bargain  for  the  sheep  at 
Lytchett  and  the  sheep  at  Morden  was  one  transaction,  and  the  contract 
was  void  under  the  17th  section  of  the  Statute  of  Frauds,  29  Car.  2,  c. 
3,  there  having  befin  no  part  payment  or  accej^tance  of  the  sheep.  The 
learned  judge  ruled  that  there  was  evidence  of  the  accei^tance  of  the  forty- 
five  couple,  and  left  it  to  the  jury  to  say  whether  there  was  a  sejiarate 
bargain  for  the  forty-five  couple,  or  whether  the  whole  were  all  included 
in  one  bargain ;  and  he  directed  the  jury  to  find  for  the  defendant  if 
they  thought  that  there  was  only  one  bargain  for  the  whole ;  but  if  they 
were  of  opinion  that  there  had  been  a  separate  bargain  for  the  forty-five 
couple,  then  they  should  find  for  the  plaintiff.  The  jury  found  that 
there  was  a  distinct  bargain  for  the  forty-five  couple  only.  The  verdict 
was  then  entered  for  the  plaintiff,  leave  being  reserved  for  the  defendant 
to  move  to  enter  a  nonsuit,  if  the  court  should  be  of  opinion  that  there 
was  no  evidence  of  acceptance  to  satisfy  the  Statute  of  Frauds. 

Ci'owder  in  last  Easter  tenn  obtained  a  rule  nisi  accordingly,  against 
which 

Bar  stow  now  shewed  cause.  The  jury  have  found  that  there  were 
two  distinct  contracts,  one  for  the  forty-five  couple  and  the  other  for 
the  two.  There  was  abundant  evidence  of  the  acceptance  of  the 
forty-five.  They  were  not  only  sent  by  the  defendant's  direction  to 
his  field  at  "Wimborne,  which  of  itself  would  be  a  delivery,  but  the 


192  SAUNDERS   V.    TOPP.  [CHAP.    I. 

defendant  afterwards  sent  his  servant  to  fetch  them  away,  and  bring 
them  to  his  residence  at  Martin.  Dodsley  v.  Varley^  shews  that 
those  facts  are  evidence  of  an  acceptance.  [Parke,  B.  His  rejecting 
them  after  that  would  be  of  no  avail  unless  they  were  not  according  to 
the  contract.]  Even  if  the  forty-seven  couple  had  been  purchased 
under  one  contract,  which  the  jury  have  negatived,  acceptance  of  the 
forty-five  coupl.e  would  have  satisfied  the  statute.  Scott  v.  The  East- 
ern Counties  Railway  Company.^ 

Crowder  and  Montague  Stnith,  in  support  of  the  rule.  There  was 
no  evidence  of  acceptance.  The  sheep  were  sent  to  a  field  which  the 
defendant  occupied  at  a  distance  from  his  place  of  residence.  It  is 
true  that  he  sent  his  servant  to  fetch  them  aAvay,  but  that  was  for  the 
purpose  of  examining  them ;  and  when  he  had  done  so,  he  repudiated 
the  bargain.  The  counting  them  and  saying  that  they  were  all  right 
only  meant  that  they  were  right  in  number.  In  Baldey  v.  Parker  ^  the 
defendant  went  to  the  plaintifi^'s  shop  and  contracted  for  the  purchase 
of  various  articles,  each  of  which  was  under  the  value  of  £10,  but  the 
whole  amounted  to  £70.  A  separate  price  for  each  article  was  agreed 
upon ;  some  the  defendant  marked  with  a  pencil,  others  were  measured 
in  his  presence,  and  others  he  assisted  to  cut  from  larger  bulks.  He 
then  desired  that  an  account  of  the  whole  might  be  sent  to  his  house, 
and  went  away.  A  bill  of  parcels  was  accordingly  sent,  and  afterwards 
the  goods,  when  he  refused  to  accept  them ;  and  it  was  held  that  there 
was  no  delivery  and  acceptance  to  satisfy  the  statute.  [Parke,  B. 
That  case  is  an  authority  to  shew  that  the  selecting  particular  articles 
does  not  amount  to  a  receipt  within  the  statute,  but  is  merely  an  agree- 
ment that  the  property  in  the  sjDecific  articles  sliall  f)ass.  At  common 
law  the  property  would  pass  by  the  contract  of  bargain  and  sale ;  but 
in  order  to  satisfy  the  statute,  there  must  be  either  a  part  payment  or 
an  acceptance  and  receipt  of  the  goods.]  In  the  case  of  a  purchase 
from  the  bulk,  the  sale  is  not  complete  until  a  portion  has  been  deliv- 
ered and  accepted.  The  purchaser  has  a  right  to  have  an  opportunity 
of  examining  the  article  delivered  to  him,  and  of  refusing  it,  if  not  the 
same  as  he  purchased.  Hanson  v.  Armitage.*  Here  there  was  a  deliv- 
ery at  the  field,  but  no  acceptance  thereafter ;  for  the  defendant  was 
not  present  to  exercise  an  option,  and  his  servant  was  not  his  agent  to 
accept,  but  only  to  receive  the  sheep.  The  cases  as  to  the  delivery  to 
a  earner  or  a  whai-finger  are  in  point.  [Parke,  B.  There  are  authori- 
ties to  shew  that  if  a  person  selects  and  puts  a  mark  on  a  particular 
article,  intending  to  take  possession  of  it  as  his  own  proj^erty,  that  is 
evidence  for  the  jury  of  an  acceptance.  Hodgson  v.  Le  Bret,^  Ander- 
son V.  Scot.^]     Those  decisions  are  at  variance  with  Baldey  v.  Parker.' 

1  12  A.  &  E.  632.  2  12  M.  &  W.  33.  3  2  B.  &  C.  37. 

*  5  B.  &  Aid.  557.  »  1  Campb.  234.  6  i  Campb.  235,  note. 

1  2  B.  &  C.  37. 


SECT.    IV.]  SAUNDERS   V.    TOPP.  193 

[Parke,  B.  That  case  only  decides  that  iindev  tlie  ch-cunistancos  there 
was  no  acceptance  and  receipt.  Here  tlie  defendant  clearly  receives 
the  sheep,  if  his  selecting  them  is  an  acceptance  of  them.  In  Hanson 
V.  Armitage  ^  there  was  no  acceptance  by  the  buyer  of  the  goods.]  The 
receipt  contemplated  by  the  statute  is  a  receipt  with  an  intention  to 
accept  the  goods.  In  Norman  v.  Phillips  -  the  defendant,  a  builder  at 
Wallingford,  gave  the  plaintiff,  a  timber  merchant  in  London,  a  verbal 
order  for  timber,  directing  it  to  be  sent  to  a  certain  railway  station  to 
be  forwarded  to  him  at  Wallingford,  as  had  been  the  practice  of  the 
parties  on  previous  dealings.  The  timber  was  accordingly  sent,  and 
arrived  at  the  Wallingford  station,  of  which  the  defendant  was  informed 
by  the  railway  clerk,  but  refused  to  take  it ;  and  it  was  held  that  there 
was  no  sufficient  evidence  to  warrant  the  jury  in  finding  such  an  accept- 
ance as  satisfied  the  statute.  [Paeke,  B.  There  had  been  no  selection 
of  the  timber.]  The  acceptance  and  receipt  must  be  such  as  to  pass 
the  property  in  the  goods,  so  as  to  enable  the  purchaser  to  maintain 
trover.  Here  the  defendant  merely  directs  that  the  sheep  shall  be  sent 
to  him,  and  he  did  not  receive  them  with  the  intention  of  accepting 
them. 

Paeke,  B.  I  am  of  opinion  that  there  was  evidence  for  the  jury  of 
an  acceptance  and  receipt  of  the  forty-five  couple.  It  is  immaterial 
for  the  present  question  whether  there  was  evidence  of  a  joint  contract, 
for  the  plaintiff  is  at  all  events  entitled  to  retain  his  verdict  for  the 
forty-five  couple.  To  satisfy  the  Statute  of  Frauds,  there  must  be  an 
acceptance  and  a  receipt  of  the  goods.  A  receipt  imiDlies  delivery. 
The  subject  was  fully  considered  by  this  court  in  the  case  of  Farina 
V.  Home,^  and  the'iDrinciples  there  laid  down  are  correct.  It  is  con- 
tended that,  under  the  statute,  the  acceptance  must  follow  the  delivery. 
That,  however,  it  is  unnecessary  to  decide;  for  here  there  is  evidence 
to  go  to  the  jury  of  a  subsequent  acceptance,  since  the  defendant  had 
not  merely  an  opportunity  of  looking  at  the  quality  of  the  shee]^  and 
selecting  them ;  but  after  that  he  directs  them  to  be  sent  to  his  field  at 
Wimborne,  and  instead  of  going  there  to  examine  them,  as  he  was 
bound  to  do  if  he  meant  to  object  to  them,  he  orders  liis  servant  to 
take  them  to  another  place,  where  he  receives  them.  So  that  there 
was  evidence  of  an  acceptance  after  the  sheep  were  delivered  at  Wim- 
borne ;  and  the  jury  might  have  concluded  that  the  subsequent  circum- 
stance of  the  defendant  writing  a  letter  to  repudiate  the  contract  Avas 
a  mere  after-thought.  If  nothing  had  occurred  but  the  transaction  of 
counting  them  over,  and  the  defendant  had  then  laid  by  for  a  fortnight 
or  three  weeks,  the  jury  might  have  found  an  acceptance.  Here  the 
circumstance  of  the  defendant  having  had  full  opportunity  of  examin- 
ing the  quality  of  the  sheep,  and  merely  counting  their  number  to  ascer- 
tain whether  it  was  right,  coupled  with  the  fact  of  his  having  actually 
1  5  B.  &  Aid.  557.  2  14  m.  &  W.  277.  »  16  M.  &  W.  119. 

VOL.  I.  13 


194  SAUNDERS   V.    TOPP.  [CHAP.    I. 

selected  them  and  ordered  them  to  be  delivered  at  his  field,  were  evi- 
dence of  an  acceptance  and  receipt  of  the  sheep,  even  supposing  the 
acceptance  must  necessarily  be  contemporaneous  with  the  receipt. 

Aldersoisj",  B.  It  is  not  necessary  to  decide  whether,  under  the 
statute,  there  can  be  an  acceptance  prior  to  the  receipt.  My  present 
opinion  is,  that  the  receipt  contemplated  by  the  statute  is  a  receipt  on 
such  terms  as  denotes  an  acceptance.  I  do  not  agree  with  the  case  of 
Anderson  v.  Scot,  which  I  think  required  fuller  consideration.  There 
the  acceptance  was  independent  of  any  receipt,  and  that  is  not  suffi- 
cient to  satisfy  the  statute.  Here  there  was  evidence  of  an  acceptance 
by  the  inspection  and  separation  of  the  sheep  at  the  time  when  they 
were  in  the  vendor's  possession  ;  and  very  slight  evidence  of  the  accept- 
ance of  the  sheep,  when  received,  would  be  sufficient  to  show  an 
acceptance  coupled  with  the  receipt,  because  they  were  previously 
selected  by  the  vendee  himself.  It  is  only  a  question  of  degree.  In 
truth  the  previous  selection  of  the  sheep  is  very  material  to  show  the 
nature  of  the  acceptance  when  the  sheep  were  received.  The  defend- 
ant says,  "  It  is  all  right."  If  he  had  never  seen  the  sheep,  and  there 
had  been  no  previous  acceptance,  his  saying  "  It  is  all  right "  would 
have  had  no  effect ;  but  when  he  had  previously  examined  and  selected 
the  sheep,  it  was  for  the  jury  to  say  whether  he  did  not  mean,  "  These 
are  the  sheep  which  I  selected."  Suppose  in  the  case  of  a  remarkable 
animal,  for  instance  a  horse  with  peculiar  spots,  the  vendee  had  said, 
"  All  risxht,"  there  could  be  no  doiibt  he  would  mean,  "  This  is  the  horse 
I  bought."  That  shows  the  whole  question  is  one  of  degree  only ;  and 
the  previous  fact  of  selecting  may  well  be  used  as  a  circumstance  fi-om 
which  the  jury  might  properly  infer  an  acceptance  at  the  time  of  the 
receipt. 

RoLFB,  B.  I  concur  with  my  brother  Alderson  in  his  doubt  whether 
under  the  statute  there  can  be  an  acceptance  before  delivery.  On  that 
point,  however,  it  is  not  necessary  to  give  an  opinion,  because  there  is 
clearly  evidence  of  an  acceptance  after  delivery. 

Platt,  B.  I  also  doubt  whether  there  can  be  an  acceptance  before 
delivery ;  but  here  there  was  a  distinct  contract  in  regard  to  the  forty- 
five  couple,  which  were  sent  to  Wimborne  according  to  the  directions 
of  the  defendant.  He  then  sends  his  drover  to  bring  them  to  a  dis- 
tant place,  where  he  counts  them  over,  and  says,  "  It  is  all  right."  That 
is  evidence  for  the  jury  of  an  acceptance  by  the  defendant  of  the  forty-' 
five  couple  which  he  bargained  for.  Hule  discharged. 


^:?'/^    >x' 


^  C^  c^^t^C      ^  7i^-z^^ 


SECT.    IV.]  MORTON   V.    TIBBETT.  '  195 

f-^l<;^y2C  ^^:rt^/^  MORTON  V.  TIBBETT.  ';iu^ ti^u^k 

/  /^^^     ^'^^N  THE  Queen's  Bench,  May  31,  1850. 

'^^'t^t^-^^cC'    Cy(   ,^,^    [Reported  in  15  Queen's  Bench  Reports,  428.]  g  >J    vV 


-^-^^-i-^^^u^EBT  for  goods  sold  and  delivered,  and  goods  bargained  and  sold.  ^  ^    '^ 
5^^^vr^^lea,  nwiqimm  indebitatus.     Issue  thereon.  ^     >  *[  • 

w-    -r*-—  On  the  trial  before  Pollock,  C.  B.,  at  the   Cambridgeshire  spring  ;^  '      ft 
nt:X^/    assizes,  1849,  it  appeared  that  the  action  was  brought  to  recover  the  *.  **     f^. 
'^^^  price  of  fifty  quarters  of  wheat.     On  25th  August,  1848,  the  plaintiff  p^>/ k  ' 
^      y      sold  the  wheat  to  the  defendant  by  sample.     The  defendant  said  that  i^    t^^V^ 
'^^'^^^^^e  would  send  one  Edgley,  a  general  carrier  and  lighterman,  on  the    | 
V  following  morning  to  receive  the  residue  of  the  wdieat  in  a  lighter  for  r    "X'  M 

xCc^y  ^^  purpose  of  conveying  it  by  water  from  March,  where  it  then  was,  >^^  ^'  ^ 
Ji/^  "  to  Wisbeach ;  and  the  defendant  himself  took  the  sample  away  with  '^  ^  '^ 
^***»-<i:^  him.     On  2Gth  August  Edgley  received  the  wheat  accordingly.     On  ^^  H^    ^ 

.. :_    the  same  day  the  defendant  sold  the  Avheat  at  a  profit,  by  the  same  L 

sample,  to  one  Hampson  at  Wisbeach  market.  The  wheat  arrived  at  ^ 
Wisbeach  in  due  course  on  the  evening  of  Monday  the  28th  August,  ^  -.  . 
and  was  tendered  by  Edgley  to  Hampson  on  the  following  morning,  ^  K"  ^ 
when  he  refused  to  take  it,  on  the  ground  that  it  did  not  correspond  ^  •  s  v  fv 
with  the  sample.  Up  to  this  time  the  defendant  had  not  seen  the  ^'^  ^ 
wheat ;  nor  had  any  one  examined  it  on  his  behalf  Notice  of  Hamp- 
son's  repudiation  of  his  contract  was  given  to  the  defendant ;  and  thq, 
defendant  on  Wednesday  the  30  th  August  sent  a  letter  to  the  plain^ 
tiff  rei)udiating  his  contract  with  the  plaintiff  on  the  same  ground 
There  was  no  memorandum  in  Avriting  of  the  bargain  within  §  17  of  iT 
the  Statute  of  Frauds,  29  Car.  2,  c.  3 ;  and  it  was  objected  for  the  K 
defendant  that  there  was  no  evidence  of  acceptance  and  receipt  to  sat   -^ 


V' 


isfy  the  requirements  of  the  same  section.     The  Lord  Chief 

overruled  the  objection ;  and  the  counsel  for  the  defendant  adt 

the  jury  exclusively  on  the  question  of  such  acceptance  and  i 

A  verdict  was  found  for  the  plaintiff",  and  leave  given  to  move  to  enter  N    C^    Jsn 


BaroTi  K'  ;^ 
uvciiuiuci  tiiu  uujeijLiuii,  uuu  uiie  euuiisei  lor  me  ueienaani  atidressed     |  »^\r< 
the  jury  exclusively  on  the  question  of  such  acceptance  and  receipt,  m    '•     T^ 

a  nonsuit,  if  the  court  should  think  either  that  there  was  no  evidence  ^^     rY 
of  acceptance  and  receipt  or  no  such  evidence  as  justified  the  verdict. 
Worlledge  in  Easter  term,  1849,  obtained  a  rule  nisi  accordingly.    In 
this  term  (May  22d)  ^ 

Andreics  and  0  3fcdley  shcAved  cause.  The  evidence  justified  the 
verdict.  Delivery  to  the  carrier  was  delivery  to  the  delendaiit  (Dut- 
ton  V.  Soloraonson,^  Hart  v.  Sattley  ^),  and  the  re-sale  was  a  strong  iudica- 

1  Before  Lord  Campbell,  C.  J.,  Patteson,  Coleridge,  and  Erie.  JJ.  K    '^    \r 

2  3  B.  &  P.  582.  3  3  Campb.  529.  ,  ^      ^  ,^       \ 


196  MORTON   V.    TIBBETT.  [CHAP.   I. 

tion  of  acceptance.  Chaplin  v.  Rogers,^  Blenkinsop  v.  Clayton,^  Edan 
V.  Dudfield  °  (recognized  in  Lilly  white  v.  Devereux  *).  The  authorities 
have  been  lately  reviewed  in  Bushel  v.  Wheeler,^  where  the  court  held 
that  it  was  a  question  of  fact,  whether  under  all  the  circumstances 
there  had  been  an  acceptance,  and  that  the  lapse  of  a  reasonable  time 
without  repudiation  was  itself  some  evidence  of  acceptance.  That 
decision  was  commented  on,  but  not  questioned,  by  the  Court  of  Ex- 
chequer in  Norman  v.  Phillips.^  There  the  defendant,  a  builder  at  Wal- 
lingford,  gave  an  order  for  timber  to  be  sent  by  railway  from  London 
to  Wallingford,  as  had  been  the  practice  on  previous  dealings  between 
the  parties.  The  timber  was  accordingly  sent  to  the  Wallingford  sta- 
tion on  the  19th  of  April ;  defendant  had  notice,  and  did  not  repudiate 
till  28th  of  May.  It  was  held  that,  although  according  to  Bushel 
V.  Wheeler  '^  it  could  not  be  denied  that  there  was  a  scintilla  of  evi- 
dence of  acceptance,  yet  there  was  not  enough  to  warrant  the  jury  in 
finding  an  acceptance.  But  in  Norman  v.  Phillips  ^  there  was  no  re-sale 
or  other  act  of  ownership  to  shew  acceptance.  Alderson,  B.,  there 
adopted  the  principle  that  acceptance  under  the  statute  means  "  such 
an  acceptance  as  precludes  the  purchaser  from  objecting  to  the  quality 
of  the  goods,  as,  for  instance,  if  instead  of  sending  the  goods  back  he 
keeps  them  or  uses  them ; "  and  he  referred  ^  to  Johnson  v.  Dodgson  ^°  as 
shewing  that  the  purchaser  is  not  so  precluded  by  his  directing  them  to 
be  sent  by  a  particular  conveyance,  and  their  being  so  sent.  Even  this 
doctrine  cannot  avail  the  defendant,  for  he  did  preclude  himself  by  his 
re-sale  fi-om  objecting  to  the  quality.  In  Baines  v.  Jevons,"  where  there 
had  been  no  re-sale,  nor  indeed  any  act  done  by  the  defendant  in 
respect  of  the  goods,  Alderson,  B.,  said  in  summing  up  to  the  jury : 
"  The  question  here  is.  Whether  the  defendant  has  accejited  this  fire- 
engine  ?  We  find  that  the  defendant  takes  a  person  to  look  at  it,  and 
says  who  is  likely  to  want  it.  You  will  say  whether  that  is  not  a  deal- 
ino-  with  it  as  his  own ;  and  Avhen  another  witness  asks  him  what  he  is 
o-oing  to  do  with  it,  the  defendant  does  not  say  that  it  is  not  his ;  but 
he  replies,  'I  know  what  I  am  going  to  do  with  it.'  And  in  his 
observations  to  Mr.  Neal  he  speaks  as  if  it  were  his  own.  You  will 
consider  whether  this  convinces  you  that  the  defendant  treated  this 
fire-engine  as  his  own,  and  dealt  with  it  as  such ;  for  if  so,  the  plaintifi" 
is  entitled  to  a  verdict."  Here  the  bulk  was  delivered,  and  the  defend- 
ant had  an  opportunity  of  inspecting  it  and  of  ascertaining  that  the 
quantity  and  quality  were  in  conformity  with  the  contract.  [Erle,  J. 
The  purchaser  has  a  right  to  object  that  the  bulk  does  not  correspond 
with  the  sample  after  accei^tance  within  the  Statute  of  Frauds.    Lord 

1  1  East,  192.  2  7  Taunt.  597.  3  i  Q.  B.  302. 

i  15  M.  &  W.  285.  5  8  Jurist,  532,  15  Q.  B.  442,  note. 

6  14  M.  &  W.  277.  T  8  Jurist,  532.  8  14  M.  &  W.  277. 

9  14  M.  &  W.  279.  10  2  M.  &  W.  658,  "  7  C  &  P.  288. 


SECT.    IV.]  MORTON    V.    TIBBETT.  19T 

Campbell,  C.  J.  Tlie  acceptance  under  the  statute  is  merely  instead  of 
a  memorandum ;  wliere  tliere  is  a  memorandum,  the  j)urchaser  may- 
repudiate  the  goods  if  they  do  not  agree  with  the  sample.] 

Worlledge  and  Couch,  contra.  The  question  is,  not  whether  there 
was  any  evidence,  but  whether  there  was  evidence  sufficient  to  justify 
the  verdict.  In  Astey  v.  Emery  ^  barley  was  sent  in  the  mode  of  con- 
veyance directed  by  the  purchaser,  who  ai)pointed  an  agent  to  see  it 
delivered  and  measured  and  put  up,  and  requested  time  to  pay,  which 
was  allowed  him  ;  yet  it  was  held  that  this  did  not  amount  to  an 
acceptance.  In  Tempest  v.  Fitzgerald  -  the  vendee  had  exercised  acts 
of  ownership,  yet  it  was  held  that  there  was  no  acceptance ;  and 
Carter  v.  Toussaint  ^  is  to  the  same  effect.  In  Bushel  v.  Wheeler  * 
there  was  unreasonable  delay  before  the  goods  were  repudiated;  here 
the  repudiation  was  prompt.  The  re-sale  is  nothing.  The  defendant 
never  examined  the  wheat :  he  made  over  his  bargain  to  Hampson ; 
and  Hampson,  who  Avas  in  the  defendant's  place,  and  whose  act  is 
adopted  by  the  defendant,  repudiated  the  wheat  on  its  delivery  to  him. 
In  Chaplin  v.  Rogers  ^  the  sub-vendee  accepted  and  took  away  the 
goods.  Re-sale  by  vendee  and  payment  to  him  do  not  destroy  the 
vendor's  right  of  stoppage  in  transitu.  Craven  v.  Ryder.''  That  there 
can  be  no  acceptance  so  long  as  the  purchaser  has  the  right  of  object- 
ing to  the  quantity  or  quality  of  the  goods  is  established,  not  only 
by  Norman  v.  Phillips,^  but  by  Howe  v.  Palmer,^  Hanson  v.  Armi- 
tage,^  Smith  v.  Surman,^°  and  Acebal  v.  Levy." 

Cur.  adv.  vidt. 

Lord  Campbell,  C.  J.,  now  delivered  judgment. 

In  this  case  the  question  submitted  to  us  is,  w^hether  there  was  any 
evidence  on  wdiich  the  jury  could  be  justified  in  finding  that  the  buyer 
accepted  the  goods  and  actually  received  the  same,  so  as  to  render 
him  liable  as  buyer,  although  he  did  not  give  any  thing  in  earnest  to 
bind  the  bargain  or  in  part  payment,  and  there  was  no  note  or  memo- 
randum in  writing  of  the  bargain. 

It  would  be  very  difficult  to  reconcile  the  cases  on  this  subject ;  and 
the  difference  between  them  may  be  accounted  for  by  the  exact  words 
of  the  17th  section  of  the  Statute  of  Frauds  not  having  been  always 
had  in  recollection.  Judges  as  well  as  counsel  have  supposed  that, 
to  dispense  with  a  written  memorandum  of  the  bargain,  there  must 
first  have  been  a  receipt  of  the  goods  by  the  buyer,  and  after  that  an 
actual  acceptance  of  the  same.  Hence  perhaps  has  arisen  the  notion 
that  there  must  have  been   such  an  acceptance  as  would  preclude  the 

1  4  M.  &  S.  262.  2  3  B.  &  Aid.  680.  3  5  B.  &  Aid.  855. 

*  15  Q.  B.  442,  note  ;  8  Jurist,  532.  5  1  East,  192. 

«  6  Taunt.  433.  '  14  M.  &  W.  277.  8  3  B.  &  Aid.  321. 

9  5  B.  &  Aid.  557.  10  9  B.  &  C.  561.  "  10  Bing.  377,  384. 


198  MOETON    V.    TIBBETT.  [CHAP.    I. 

buyer  from  questioning  the  quantity  or  quality  of  the  goods,  or  in  any 
way  disputing  that    the  contract   has  been   fully  perfonned  by  the 
vendor.     But  the  words  of  the  act  of  Parliament  are  [stating  them]. 
It  is  remarkable  that,  notwithstanding  the  importance  of  having  a 
written  memorandum  of  the  bargain,  the  Legislature  appears  to  have 
been  willing  that  this  might  be  dispensed  with  where  by  mutual  con- 
sent there  has  been  part  performance.     Hence  the  payment  of  any 
sum  in  earnest  to  bind  the  bargain  or  in  part  payment  is  sufficient. 
The   same  effect  is  given   to  the    corresponding   act  by  the  vendor 
of  delivering  part   of  the   goods   sold   to   the   buyer,  if  the   buyer 
shall    accept   such    part    and   actually  receive   the    same.     As   part 
payment   however  minute   the    sum    may   be   is    sufficient,  so   part 
dehvery   however  minute   the   portion   may   be   is   sufficient.      This 
shews  conclusively  that  the  condition  imposed  was  not  the  complete 
fulfilment  of  the  contract  to  the  satisfaction  of  the  buyer.     In  truth 
the  effect    of  fulfilling   the    condition    is    merely    to    waive   written 
evidence  of  the  contract  and  to  allow  the  contract  to  be  established 
by  parol  as  before  the  Statute  of  Frauds  passed.     The  question  may 
then  arise,  whether  it  has  been  performed  either  on  the  one  side  or  the 
other.     The  acceptance  is  to  be  something  which  is  to  precede  or  at 
any  rate  to  be  contemporaneous  with  the  actual  receipt  of  the  goods, 
and  is  not  to  be  a  subsequent  act  after  the  goods  have  been  actually 
received,  weighed,  measured,  or  examined.     As  the  act  of  Parliament 
expressly  makes  the  acceptance  and  actual  receipt  of  any  part  of  the 
goods  sold  sufficient,  it  must  be  open  to  the  buyer  to  object  at  all 
events  to  the  quantity  and  quality  of  the  residue,  and  even  where 
there  is  a  sale  by  sample  that  the  residue"  offered  does  not  correspond 
with  the  sample.     We  are  therefore  of  opinion  that,  whether  or  not  a 
delivery  of  the  goods  sold  to  a  carrier  or  any  agent  of  the  buyer  is 
sufficient,  still  there  may  be  an  acceptance  and  receipt  within    the 
meaning  of  the    act  without  the  buyer  having  examined  the  goods 
or  done  any  thing  to  preclude  him  from  contending  that  they  do  not 
correspond  with  the  contract.     The  acceptance  to  let  in  parol  evi- 
dence of  the  contract  appears  to  us  to  be  a  different  acceptance  from 
that  which  affords  conclusive  evidence  of  the  contract  having  been 

ftilfilled. 

We  are  therefore  of  opinion  in  this  case  that,  although  the  defendant 
had  done  nothing  which  would  have  precluded  him  from  objecting 
that  the  wheat  delivered  to  Edgley  was  not  according  to  the  contract, 
there  was  evidence  to  justify  the  jury  in  finding  that  the  defendant 
accepted  and  received  it. 

We  will  now  examine  the  cases  which  are  supposed  to  prove  the 
doctrine  that  there  can  be  no  acceptance  within  the  meaning  of  the 
Statute  of  Frauds  unless  the  buyer  is  precluded  from  objecting  that 
the  vendor  has  not  fully  performed  the  contract  on  his  part.    The  first 


SECT.    IV.]  MORTON   V.    TIBBETT.  199 

of  these  was  Howe  v.  Palmer,^  wliicli  we  clearly  think  was  well 
decided,  although  we  cannot  concur  in  all  the  reasons  given  for  the 
decision.  There  the  only  evidence  of  acceptance  and  receipt  was  that 
the  agent  of  the  vendor  who  had  verbally  sold  to  tlie  defendant  twelve 
bushels  of  tares,  part  of  a  larger  quantity  in  the  vendor's  possession, 
had  measured  off  twelve  bushels  of  the  tares,  and  set  them  apart  for 
the  purchaser.  According  to  the  contract  they  were  to  remain  in  the 
possession  of  the  vendor  till  called  for.  The  purchaser  therefore 
neither  had  accepted  nor  recei^'ed  the  goods.  Abbott,  C.  J.,  does  say : 
"If  he  had  once  accepted  he  could  not  afterwards  make  any  objection, 
even  if  it  turned  out  that  the  tares  did  not  correspond  with  the 
sample."  But  this  observation  Avas  quite  unnecessary  for  the  deter- 
mination of  the  case ;  and,  with  the  most  sincere  respect  to  the  great 
judge  from  whom  it  fell,  we  do  not  think  that  it  is  applicable.  The 
proper  ratio  decidendi  seems  to  us  to  be  given  by  Holroyd,  J.,  where 
he  says :  "  In  this  case  there  has  been  no  actual  receipt  of  any  part  of 
the  goods  sold  within  the  usual  meaning  of  the  term,  and  I  think  that 
what  has  been  done  ought  not  to  be  considered  in  point  of  law  as  an 
acceptance.  For  supposing  that  it  was  made  part  of  the  contract  in 
this  case  that  the  seller  should  set  apart  and  measure  the  thing  sold, 
that  would  not  make  the  act  of  measuring  amount  to  a  virtual  accept- 
ance or  receipt  of  the  goods  by  the  buyer."  The  next  case  rehed  upon 
is  Tempest  v.  Fitzgerald,^  where  in  an  action  for  the  price  of  a  horse 
that  had  died  after  the  time  when  he  was  sold  by  parol  and  before  he 
was  delivered  or  paid  for,  the  question  arose  upon  whom  the  loss 
should  fall.  The  only  evidence  of  acceptance  and  receipt  was  that, 
while  the  horse  remained  in  the  possession  of  the  vendor,  the  pur- 
chaser made  his  servant  gallop  the  horse  and  gave  some  directions 
about  his  treatment,  requesting  that  he  might  be  kept  by  the  vendor  a 
week  longer.  The  court  held  that  there  had  been  no  acceptance  and 
receipt  of  the  horse  by  the  purchaser.  But  the  case  has  little  con- 
nection Avith  the  doctrine  contended  for,  that  there  must  be  an  oppor- 
tunity for  the  vendor  to  inspect  the  quality  of  the  thing  sold ;  and 
Abbott,  C.  J.,  founds  his  judgment  upon  this  consideration,  that  the 
defendant  had  no  right  of  property  in  the  horse  till  the  price  was  jiaid, 
and  could  not  till  then  exercise  any  act  of  ownership  over  him. 
Holroyd,  J.,  says :  "  There  is  no  evidence  to  shew  that "  the  vendor 
"  had  ever  parted  with  the  possession "  of  the  horse.  Next  comes 
Hanson  v.  Armitage.^  There  the  vendor,  who  resided  in  London, 
having  been  in  the  habit  of  selling  goods  to  a  customer  in  the  country 
and  of  deliveriui?  them  to  a  wharfinger  to  be  forwarded  bv  the  first 
ship,  in  pursuance  of  a  verbal  order  from  the  customer  delivered  a 
parcel  of  goods  to  the  wharfinger  to  be  forwai-ded  in  the  usual  manner. 
The  customer  had  done  nothing  beyond  giving  the  verbal  order  for 
1  3  B.  &  Aid.  321.  2  3  B.  &  Aid.  680.  s  5  b.  &  Aid.  557. 


200  MORTON   V.    TIBBETT.  [CHAP.    I. 

the  goods.     Abbott,  C.  J.,  in  a  very  few  Avords  delivered  the  judg- 
ment of  the  court  that  an  action  coukl  not  be  maintained  for  the  price 
of  the  goods,  on  the  ground  that  the  acceptance  in  this  case  not  being 
by  the  party  himself  was  not  sufficient,  referring  to  Howe  v.  Palmer,^ 
where  he  says :  ''  It  was  held  that  there  could  be  no  actual  acceptance 
so  long  as  the  buyer  continued  to  have  a  right  to  object  either  to  the 
quantum  or  quality  of  the  goods."     But  the  decision  may  well  stand 
on  other  grounds ;  and  we  may  observe  that  it  is  an  actual  receipt  of 
the  goods  which  the  statute  requires,  and  not  an  actual  acceptance. 
Carter  v.  Toussaint^  was    likewise  relied   upon,  but  it  was  merely 
(like  Tempest  v.  Fitzgerald  ^)  a  case  of  a  sale  by  parol  of  a  horse  that 
remained  always   in  the    possession    and  under    the   control  of  the 
vendor,  so  that  he  could  not  have  been  accepted  and  received  by  the 
purchaser.     Abbott,  C.  J.,  says :  "  The  plaintiff"s  character  of  owner 
remained  unchanged  from  first  to  last."     The  next  case  is  Smith  v. 
Surman,^  and  there  after  a  sale  of  timber  by  parol  the  purchaser  had 
offered  to  sell  the  butts,  and  had  given  some  directions  about  cross- 
cutting  the  timber ;  but  the  evidence  clearly  proved  that  the  whole 
continued  to  remain  in  the  possession  of  the  vendor.     The  court,  as 
might  have  been  expected,  held  that  there  could  be  no  receipt  by  the 
purcliaser  while   the    possession   of    the    goods   remained    with   the 
vendor.     A  very  learned  judge,  my  brother  Parke,  does  unnecessarily 
add :  *  "  That  the  later  cases  have  estabUshed  that,  unless  there  has  been 
such  a  dealing  on  the  part  of  the  purchaser  as  to  deprive  him  of  any 
right  to  object  to  the  quantity  or  quality  of  the  goods,  or  to  deprive 
the  seller  of  his  right  of  lien,  there  cannot  be  any  part  acceptance." 
That  there  can  be  no  acceptance  and  receipt  by  the  purchaser  while 
the  lien  of  the  vendor  remains  is  clear  enough,  for  the  vendor's  lien 
necessarily  supposes  that  he  retains  the  possession  of  the  goods ;  but 
I  must  be  permitted  to    doubt  whether   the  cases  referred  to  have 
established  the  residue  of  the  rule.     The  last  case  cited  on  behalf  of 
the    defendant    was    Norman   v.  Phillips.^      This    case    very    much 
resembled  Hanson  v.  Armitage,'^  and  presented  no  stronger  evidence 
of  acceptance  and  receipt.     The  defendant  Uving  at  WaUingford  gave 
the  plaintiff,  a  timber  merchant  in  London,  a  verbal  order  for  timber, 
directing  it  to  be  sent  to  the  Paddington  station  of  the  Great  Western 
Railway  so  that  it  might  be  forwarded  to  him  at  WaUingford.     The 
timber  was  accordingly  forwarded  to  the  WaUingford  station;   but 
the  defendant  being  informed  of  its  arrival  refused  to  have  any  thing 
to  do  with  it.     The  court  held  that  although  there  might  be  a  scintilla  of 
CA-idence  for  the  jury  of  an  acceptance  of  the  timber  within  the  Statute 
of  Frauds,  yet  there  was  not  sufficient  to  warrant  them  in  finding  that 

1  3  B.  &  Aid.  821.  2  5  B.  &  Aid.  855.  3  3  B.  &  Aid.  680. 

4  9  B.  &  C.  561.  5  9  B.  &  C.  577.  6  u  m.  &  W.  277. 

7  5  B.  &  Aid.  557. 


SECT.   IV.]  MORTON    V.    TIBBETT.  201 

there  was  such  an  acceptance ;  and  the  court  set  aside  a  verdict  for 
the  plaintiff  as  not  warranted  by  the  evidence.  Alderson,  B.,  says : 
"  The  true  rule  appears  to  me  to  be  that  acceptance  and  delivery  under 
the  Statute  of  Frauds  means  such  an  accejjtance  as  precludes  the  pur- 
chaser from  objecting  to  the  quality  of  the  goods."  He  adds  what, 
Avith  great  deference,  is  a  better  reason  :  "  The  carrier  is  only  an  agent 
for  the  purpose  of  carrying,  and  here  the  purchaser  himself  imme- 
diately refused  to  take  the  goods."  It  was  upon  this  reason  that  the 
rest  of  the  court  appears  to  have  proceeded. 

If  there  were  such  a  rule  as  is  contended  for  it  would  be  decisive 
against  the  plaintift'in  this  case,  for  the  defendant  never  had  an  oppor- 
tunity of  examining  the  goods  sold :  there  is  no  evidence  that  Edgley 
was  his  agent  for  that  purpose ;  and  he  had  done  nothing  to  preclude 
him  from  objecting  to  the  quality  of  the  wheat.  But  if  there  be  no 
such  rule,  then  surely  there  was  evidence  to  submit  to  the  jury  and  to 
justify  them  in  finding  an  acceptance  and  receipt.  He  specially  sent 
Edgley  to  receive  the  wheat :  after  the  delivery  of  the  wheat  to  his 
agent  and  Avhen  it  was  no  longer  in  the  possession  of  the  vendor, 
instead  of  rejecting  it  as  in  other  cases,  he  exercised  an  act  of  owner- 
ship over  it  by  re-selling  it  at  a  profit,  and  altering  its  destination  by 
sending  it  to  another  wharf,  there  to  be  delivered  to  his  vendee.  The 
wheat  was  then  constructively  in  his  own  possession ;  and  could  such 
a  re-sale  and  order  take  place  without  his  having  accepted  and  received 
the  commodity?  Does  it  lie  in  his  mouth  to  say  that  he  has  not 
accepted  that  which  he  has  re-sold  and  sent  on  to  be  delivered  to 
another?  At  any  rate  is  not  this  evidence  from  which  such  an 
acceptance  and  receipt  may  be  inferred  by  the  jury?  Upon  similar 
evidence  the  finding  of  an  acceptance  and  receipt  has  been  sanctioned 
by  very  eminent  judges.  In  Hart  v.  Sattley,^  where  goods  had  been 
verbally  ordered  to  be  sent  from  London  to  Dartmouth,  and  were  sent 
by  a  carrier  employed  by  the  defendant,  and  were  not  proved  to  have 
been  rejected  by  him,  although  there  was  no  proof  that  they  had  come 
to  his  hands,  Chambre,  J.,  is  reported  to  have  said :  "  I  think  under 
the  circumstances  of  this  case  the  defendant  must  be  considered  as 
having  constituted  the  master  of  the  ship  his  agent  to  accept  and 
receive  the  goods."  The  plaintiff  recovered  a  verdict  which  was  not 
disturbed.  In  Chaplin  v.  Rogers,-  where  a  stack  of  hay  being  sold  by 
parol  to  the  defendant  he,  without  paying  for  it  or  removing  it,  re-sold 
a  part  of  it  to  another  person  who  took  it  away,  and  the  jury  found 
that  the  defendant  had  accepted  and  received  the  stack  of  hay.  Lord 
Keuyon  said  :  "  The  question  was  specifically  left  to  the  jury  whether 
or  not  there  were  an  acceptance  of  the  hay  by  the  defendant,  and  they 
have  found  that  there  was,  which  puts  an  end  to  any  question  of  law." 
"  Here  the  defendant  dealt  Avith  this  commodity  afterwards  as  if  it 
1  3  Campb.  528.  2  i  East,  192. 


202  MOETON   V.   TIBBETT.  [CHAP.   I. 

were  in  his  actual  possession;  for  he  sold  part  of  it  to  another 
person."  "The  other  judges  agreed  that  there  was  sufficient  evidence 
of  a  delivery  to  and  accej^tance  by  the  defendant  to  Iqave  to  the 
jury."  And  the  verdict  for  the  plaintiff  was  confirmed.  So  in  Blen- 
kinsop  V.  Clayton,^  Gibbs,  C.  J.,  and  the  whole  Court  of  Common 
Pleas,  agreed  that  if  a  person  who  has  contracted  for  the  purchase 
of  goods  offers  to  re-sell  them  as  his  own,  whether  this  be  proof  of 
an  acceptance  and  receipt  of  the  goods  by  himself  is  a  question  for 
the  jury.  I  will  only  further  mention  the  well-considered  case  of 
Bushel  V.  Wheeler,^  decided  in  this  court.  The  defendant  residing 
in  Herefordshire  had  A^erbally  ordered  goods  from  a  manufacturer  at 
Bristol ;  according  to  his  orders  they  were  sent  to  Hereford  and 
deposited  in  a  warehouse  there.  After  they  had  been  a  considerable 
time  there  the  defendant  repudiated  them.  In  an  action  for  the  price 
before  a  most  learned  and  cautious  judge,  Mr.  Justice  Erskine,  it  was 
left  to  the  jury  whether  upon  the  evidence  the  buyer  had  accepted 
and  received  the  goods ;  and  the  verdict  was  for  the  defendant,  with 
liberty  to  enter  a  verdict  for  the  plaintiff  if  the  court  should  be  of 
opinion  that  there  was  an  acceptance.  A  rule  to  shew  cause  was 
granted ;  and  cause  being  shewn  the  court  unanimously  approved  of 
the  dii-ection,  but  declined  to  take  upon  themselves  to  enter  a  verdict 
for  the  plaintiff,  and  made  a  rule  absolute  for  a  new  trial.  I  particu- 
larly rely  upon  the  pointed  language  in  that  case  of  my  brother 
Coleridge,  who,  after  observing  that  the  acceptance  required  by  the 
statute  must  be  very  clear  and  unequivocal,  says  that  it  may  be  con- 
structive; and  adds  that  "it  is  a  question  for  the  jury,  whether 
under  all  the  circumstances  "  "  the  acts  which  the  buyer  does  or  for- 
bears to  do  are  an  acceptance  or  otherwise." 

These  are  express  decisions  through  a  long  course  of  years  that 
there  may  be  an  acceptance  and  receipt  of  goods  by  a  purchaser 
within  the  Statute  of  Frauds,  although  he  has  had  no  opportunity  of 
examining  them,  and  although  he  has  done  nothing  to  preclude  himself 
from  objecting  that  they  do  not  correspond  with  the  contract.  We 
approve  of  these  decisions,  thinking  that  they  do  not  infringe  upon 
the  Statute  of  Frauds  and  that  they  conduce  to  fair  dealing  in 
trade. 

We  are  therefore  of  opinion  that  in  this  case  the  rule  for  entering  a 
nonsuit  should  be  discharged.  Hule  discharged. 

1  7  Taunt.  597.  »  g  Jurist,  532,  15  Q.  B.  442,  note. 


SECT.    IV.]  MEREDITH    V.    MEIGH.  203 

MEREDITH  v.  MEIGH  and  Others. 
In  the  Queen's  Bench,  May  26,  1853. 

[Reported  in  2  Ellis  ^-  Blackburn,  364.] 

Action  for  goods  sold  and  delivered.     Plea,  general  traverse  of  the 
declaration.     Issue  thereon. 

At-  the  trial  before  Crompton,  J.,  at  the  last  Bodmin  assizes,  it 
appeared  that  the  defendants  "were  manufacturers  of  earthenAvare  at 
the  potteries  in  Staffordsliire.  The  plaintiff  was  resident  in  Cornwall. 
On  12th  April,  1850,  the  defendants  at  Handley  in  Staffordf^hire 
verbally  ordered  from  a  person  of  the  name  of  Close,  who  was  the 
agent  of  the  plaintiff  there,  a  cargo  of  china-stone  clay  to  be  sent  by 
sea  by  the  plaintiff,  consigned  to  the  Anderton  Carrying  Company, 
Liverpool,  for  the  defendants,  and  to  be  insured  by  plaintiff  on  their 
account.  The  ordinary  mode  of  transmitting  clay  from  Cornwall  to  the 
potteries  is  by  sea  to  the  Mersey,  and  thence  by  inland  navigation  to 
the  potteries.  The  Anderton  Carrying  Company  are  public  earners 
on  the  inland  na\agation  from  the  Mersey  to  the  potteries,  as  was  Avell 
known  to  all  the  parties.  No  vessel  was  named  at  the  time  the  order 
was  given.  Close  wrote  to  his  principal  the  plaintiff  advising  him  of 
the  order,  and  received  an  answer  to  the  effect  that  the  order  should 
be  complied  with  and  the  cargo  sent  by  the  sloop  Marietta,  and 
the  bill  of  lading  sent  to  the  Anderton  Carrying  Company;  but 
that  there  were  no  facilities  for  effecting  an  insurance  in  Cornwall,  and 
that  the  purchasers  had  better  effect  the  insurance  themselves,  Avhich 
Close  communicated  to  the  defendants.  Enclosed  either  in  this  letter 
or  in  a  subsequent  one,  it  did  not  on  the  evidence  appear  clearly 
which,  was  a  copy  of  the  bill  of  lading,  expressing  that  the  goods  were 
shipped  on  the  18th  April  deliverable  to  the  order  of  the  Anderton 
Carrying  Company,  Liverpool.  This  was  not  signed  by  the  master 
(probably,  it  was  suggested,  because  the  shipment  was  not  then  com- 
plete), and  seemed  to  be  sent  for  the  information  of  Meigh  &  Co. 
Close  wrote  to  the  Anderton  Carrying  Company,  inclosing  the 
unsigned  copy  of  the  bill  of  lading,  and  instructing  them  vwhen  they 
should  receive  the  bill  of  lading  itself  to  act  upon  it  and  forward  the 
cargo  to  Meigh  &  Co.  at  Handley.  Tlie  shipment  was  complete  on 
the  22d  April,  and  the  bill  of  lading  which  was  then  signed  was  sent 
by  the  ]ilaintiff  to  the  Anderton  Carrying  Company  by  post.  The 
sloop  Marietta  sailed  on  22d  April,  and  was  lost  at  sea  with  her  cargo 
on  board  on  2Gth  April.  There  was  no  distinct  evidence  of  the 
precise  dates  at  which  the  Anderton  Carrjdng  Company  received  the 
bill  of  lading  and  at  which  the  defendants   received   the  communi- 


204  MEREDITH   V.    MEIGH.  [CHAP.    I. 

cations.  They  were  sent  by  post ;  and  though  the  letters  produced  at 
the  trial  bore  postmarks,  these  were  illegible,  and  the  course  of  post 
from  Cornwall  to  Liverpool  and  Staffordshire  appeared  not  to  be  very 
regular ;  but  there  was  evidence  from  which  it  might  be  inferred  that 
the  bill  of  lading  had  been  received  by  the  Anderton  Carrying 
Company  on  26th  of  April,  before  the  vessel  was  lost,  and  that  the 
defendants  at  the  potteries  had  on  25th  April  received  notice  that  the 
bill  of  lading  was  forwarded  to  the  Anderton  Carrying  Company.  On 
4th  May  the  plaintiff  received  intelligence  that  the  vessel  was  lost  and 
sent  notice  of  this  fact  to  the  defendants,  which  notice  was  received 
by  the  defendants  on  the  5tli  May.  They  then  refused  to  have  any 
thing  to  do  with  the  cargo,  which  was  the  first  thing  which  it  was 
shewn  that  they  had  done  after  giving  the  order.  The  value  of  the 
cargo  was  £83. 

On  these  facts  it  was  objected  that  there  was  nothing  to  bind  the 
contract  within  the  17th  section  of  the  Statute  of  Frauds,  29  Car.  2,  c.  3, 
Neither  party  asked  to  have  any  specific  question  left  to  the  jury  ;  and 
the  learned  judge  directed  a  verdict  for  the  defendants,  with  leave  to 
enter  a  verdict  for  the  plaintiff  for  £83  if  this  court  should  be  of  opin- 
ion that  there  was  any  evidence  of  an  acceptance  and  receipt  on  which 
the  jury  would  have  been  justified  in  acting.  Butt  in  Easter  tei-m 
obtained  a  rule  nisi  accordingly. 

/Slade,  Smirke,  and  Maynard  now  shewed  cause.  It  is  important  to 
bear  in  mind  the  very  words  of  the  17th  section  of  the  Statute  of 
Frauds :  "  Excejjt  the  buyer  shall  accept  part  of  the  goods  so  sold  and 
actually  receive  the  same."  In  the  present  case  there  is  no  pretext  for 
saying  that  the  defendants  themselves  received  any  portion  of  the 
goods ;  the  plaintiff's  case  must  rest  either  on  the  receipt  of  the  goods 
on  board  the  Marietta,  or  on  the  receipt  by  the  Anderton  Carrying 
Company  of  the  bill  of  lading,  which  is  for  some  purposes  the  symbol  of 
the  goods.  First,  as  to  the  receipt  by  the  master  of  the  sloop  Marietta, 
it  is  to  be  observed  that  the  verbal  order  was  to  send  the  goods  by 
sea ;  but  no  vessel  was  named.  It  was  left  to  the  vendor  to  select 
what  vessel  he  liked.  A  dehvery  to  a  carrier,  even  if  selected  by  the 
vendor,  is  a  delivery  to  the  jjurchaser  if  there  is  otherwise  a  binding 
contract ;  but  the  receij^t  by  a  carrier,  even  though  selected  by  the 
purchaser,  is  not  sufficient  to  bind  the  contract  within  the  statute. 
Hanson  v.  Armitage,^  Acebal  v.  Levy,"  Johnson  v.  Dodgson.^  The  con- 
trary was  ruled  in  Hart  v.  Sattley,^  but  that  case  was  always  considered 
to  be  overruled  until  it  was  mentioned  a2:)parently  with  approbation  in 
the  judgment  of  this  court  in  Morton  v.  Tibbett.^  Then  the  receipt  of 
the  bill  of  lading  was  after  the  loss  of  the  goods ;  and  it  is  not  possible 
that  there  should  be  an  actual  receipt  of  a  non-existing  thing.     (On 

1  5  B.  &  Aid.  557.  2  lo  Bing.  376.  3  2  M.  &  W.  653. 

4  3  Campb.  528.  5  15  Q.  B.  428, 440. 


SECT.    IV.]  MEREDITH    V.    MEIGH.  205 

examining  the  note  of  the  learned  judge,  it  appeared  that  there  was 
some  evidence,  as  stated  above,  that  tlie  bill  of  lading  would  in  course 
of  post  be  I'eceived  in  Liverpool  before  the  loss  of  the  vessel  on  the 
same-  day.)     The  bill  of  lading  is  the  symbol  of  the  property.     The 
receipt  of  the  symbol  cannot  be  an  "actual"  receipt  of  the  goods. 
Farina  v.  Home.^     [Erle,  J.     Suppose  the  person  Avho  has  received 
the  bill  of  lading  were  to  sell  it  whilst  the  goods  were  yet  at  sea,  and 
so  transfer  the  property.     Would  not  that  be  an  actual  receipt  of  the 
goods  ?]     The  retention  of  the  symbol  would  be  evidence  of  an  accept- 
ance of  the  goods  (Farina  v.  Home  ^)  ;  and  if  there  was  a  dealing  with 
the  goods  by  the  purchaser  or  by  some  one  under  the  authority  of  the 
purchaser,  that  would  be  sufficient  evidence  of  actual  receipt.     Morton 
V.  Tibbett,-  Bushel  v.  Wheeler."    And  it  may  be  that  any  actual  deal- 
ing with  the  symbol,  the  bill  of  lading,  so  as  to  alter  the  property  in 
the  goods  before  they  perished  at  sea,  would  have  precluded  the  defend- 
ants from  setting  up  as  a  defence  that  the  goods  Avhich  they  had  dealt 
with  as  owners  had  not  v^ested  in  them.     But  though  they  might  in 
such  a  case  be  iDrecluded  from  saying  there  was  no  actual  receipt,  it  is 
not  easy  to  see  how  there  could  really  be  an  actual  receipt  consistently 
with  Farina  v.  Honie.^     [Crompton,  J.     In  Faiina  v.  Home  ^  the  pur- 
chaser received  a  wharfinger's  delivery  wan-ant;  and  the  court  give 
this  as  the  ground  of  their  judgment:  "This  wan-ant  is  no  more  than 
an  engagement  by  the  wharfinger  to  deliver  to  the  consignee  or  any 
one  he  may  appoint ;  and  the  wharfinger  holds  the  goods  as  the  agent 
of  the  consignee  (who"  in  that  case  was  "the  vendor's  agent),  and 
his  possession  is  that  of  the  consignee,  until  an  assignment  has  taken 
place,  and  the  wharfinger  has  attorned,  so  to  speak,  to  the  assignee,  and 
agreed  with  him  to  hold  for  him.    Then,  and  not  till  then,  the  wharfin- 
ger is  the  agent  or  bailee  of  the  assignee,  and  his  possession  that  of  the 
assignee,  and  then  only  is  there  a  constructive  delivery  to  him."   It  may 
be  made  a  question,  whether  there  is  not  a  diflference  in  this  respect 
between  the  -assignee  of  a  deliv^ery  order  and  the  original  consignee  of 
a  bill  of  lading.    May  it  not  be  said  that,  though  the  orders  were  given 
by  the  vendor  under  a  parol  contract,  and  consequently  not  binding  on 
the  vendee,  yet  that  the  bill  of  lading  was  an  ofler  on  the  part  of  the 
captain  to  hold  as  bailee  for  the  vendee,  and  that  the  retention  of  the 
bill  of  lading  by  the  vendee  is  an  acceptance  of  that  offer,  equivalent 
to  the  attornment  of  the  wharfinger  to  the  assignee  of  the  delivery 
order  ?    Lord  Campbell,  C.  J.    If  the  vendees  choose  in  such  a  case  to 
make  the  contract  of  sale  good,  they  may  sue  the  captain  on  tlie  con- 
tract in  the  bill  of  lading  without  any  further  act  on  the  captain's  part.] 
That  question  does  not  arise ;  for  the  bUl  of  lading  was  never  receiA^ed 
or  dealt  with  by  the  defendants,  or  by  any  one  ha\dng  authority  to 
bind  the  bargain  on  their  account.     It  was  transmitted  by  the  plain- 
1  IG  M.  &  W.  119.  2  15  Q.  B.  428.  3  15  Q.  B.  U2,  note. 


206  MEREDITH   V.    MEIGH.  [CHAP.   I. 

tiff's  agent  Close  to  the  Anderton  Canying  Company,  and  received  by 
them  as  agents  to  forward.  Had  the  Anderton  Carrying  Company 
received  the  goods  themselves  instead  of  the  symbol,  it  would  not  have 
bound  the  bargain. 

JButt  and  Montague  Smith,  in  support  of  the  rule.  The  bill  of  lad- 
ing was  sent  to  the  vendee's  agent,  and  was  not  returned.  That  is 
evidence  of  dealing  with  the  goods  as  owner,  which  is  evidence  of  accept- 
ance and  receipt.  Morton  v.  Tibbett.^  [Loed  Campbell,  C.  J.  The 
Anderton  Carrying  Company  were  agents  to  forward  the  goods  and  no 
more.  Where  is  the  evidence  that  the  defendants  exercised  any  domin- 
ion over  the  goods  ?]  They  had  notice  of  the  fact  that  the  bill  of  lad- 
ing had  been  forwarded  to  the  Anderton  Carrying  Company,  who  were, 
if  not  agents  to  accej^t,  at  all  events  agents  to  receive  the  goods.  Their 
silence  is  evidence  that  they  accepted  the  bill  of  lading.  [Coleridge,  J. 
If  it  was  their  duty  to  say  any  thing  their  silence  would  be  important. 
But  I  do  not  see  that  they  were  called  upon  to  say  or  do  any  thing.] 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  there  was  no  evidence 
on  which  the  jury  would  have  been  justified  in  finding  that  any  part  of 
the  goods  in  this  case  were  accej^ted  and  actually  received.  The  first 
consideration  is,  whether,  where  no  ship  is  named  by  the  vendee,  but 
the  goods  are  ordered  to  be  sent  by  sea,  the  mere  delivery  on  board  a 
ship  unnamed  by  the  vendee,  and  the  signing  by  the  master  of  that 
ship  of  a  bill  of  lading  to  carry  the  goods  for  the  vendee,  is  a  sufficient 
acceptance  and  receijJt.  I  think  it  is  not,  and  that  the  case  of  Hart 
V.  Sattley^  must  be  considered  overruled  and  not  law.  That  being  so, 
the  mere  shipment  on  board  the  sloop  Marietta,  and  the  signing  of  the 
bill  of  lading  by  which  the  goods  were,  pursuant  to  the  verbal  orders 
of  the  defendants,  made  deliverable  to  the  Anderton  Carrying  Com- 
pany, are  not  enough  to  satisfy  the  statute.  What  then  ai-e  the  other 
circumstances?  That  the  biU  of  lading  was  forwarded  to  the  Ander- 
ton Carrying  Company,  and  received  and  kept  by  them.  That  could 
be  no  evidence  of  an  acceptance  and  receipt  by  the  defendants;  for  the 
Anderton  Canying  Company  were  mere  carriers,  having  no  authority  to 
accept  and  receive  the  goods.  But  on  a  day,  which  I  think  we  must 
for  the  purposes  of  this  rule  take  to  be  the  25th  of  April,  the  defend- 
ants had  notice  of  the  shipment,  and  that  a  bill  of  lading  had  been  for- 
warded to  the  Anderton  Carrying  Company ;  and  they  did  nothing  till 
they  heard  of  the  loss  of  the  vessel  on,  as  we  must  take  it,  the  5th  of 
May.  And  the  question  comes  to  be :  Is  the  silence  and  nonfeasance 
of  the  defendants  from  the  25th  of  April  to  5th  of  May  enough  to 
prove  that  the  defendants  had  constituted  the  captain  of  the  Marietta 
their  agent  to  accept  and  receive  the  goods,  though  he  was  not  so 
before  ?  I  think  it  is  not  enough ;  for  as  my  brother  Coleridge  forcibly 
remarks,  What  were  they  called  uj^ou  to  say  or  do  ?  Their  inaction  did 
1  15  Q.  B,  428.  2  3  Campb.  628. 


SECT.    IV.]  MEREDITH   V.    MEIGH.  207 

not  cause  the  others  to  alter  their  position  at  all.  There  arc  no  other 
facts  in  the  case.  I  think  our  decision  is  in  confonnity  with  all  the 
cases  except  Hart  v.  Sattley,^  which  I  consider  not  law.  In  Bushel 
V.  Wheeler  ^  the  vendee  ordered  the  goods  to  be  sent  by  a  particular 
shi]) ;  and  they  were  so  sent  and  left  lying  in  the  warehouse  of  the 
owner  of  that  ship  for  five  months  with  the  vendee's  knowledge.  That 
was  evidence  that  the  vendee  had  constituted  the  owner  of  the  ship, 
who  had  been  agent  to  caiTy,  his  agent  to  keep  the  goods ;  and  if  he 
had  done  so,  he  had  received  them  himself.  So  in  Morton  v.  Tibbett  * 
the  vendee  re-sold  the  goods,  and  altered  the  destination  of  the  goods 
in  the  carrier's  hands ;  and  that  also  was  held  evidence  of  a  receipt. 
Farina  v.  Home  ^  is  an  authority  directly  against  the  plaintiff.  I  am 
therefore  of  opinion  that  this  rule  must  be  discharged. 

Coleridge,  J.  I  am  of  the  same  opinion,  as  I  think  that  the  plain- 
tiff gave  no  evidence  which  would  justify  the  jury  in  finding  that  the 
defendants  acce2:)ted  and  actually  received  those  goods.  I  think  it  Avill  be 
best  to  consider  the  material  ficts  by  stej^s.  The  goods  were,  pursuant 
to  the  verbal  orders  of  the  defendants,  delivered  on  board  a  ship  chosen 
by  the  vendor ;  and  a  bill  of  lading  was  signed,  making  them  deliver- 
able to  the  Anderton  Carrpng  Comj^any.  Now  it  is  clear  on  the 
authorities  that,  whatever  was  the  agency  of  the  Anderton  Carrying 
Company,  or  even  if  they  had  themselves  been  the  vendees,  there  was 
not  yet  either  an  acceptance  or  a  receipt  of  the  goods.  But  the  bill  of 
lading  was  sent  on  to  the  Anderton  Carrying  Company,  and  received 
by  them.  It  now  becomes  material  to  see  what  kind  of  authority  they 
had ;  and  it  appears  that  they  were  mere  agents  to  forward,  so  that 
their  receipt  of  the  bill  of  lading  comes  to  nothing.  But  the  defend- 
ants had  notice  of  all  these  facts,  and  they  did  nothing.  Noav,  when- 
ever a  party  has  notice  of  facts  which  call  ujjon  him  to  act,  forbearing 
to  act  is  very  important ;  but  in  the  present  case  by  the  original  verbal 
conti-act  the  vendor  was  to  choose  the  ship  by  which  the  goods  were  to 
be  sent  to  the  Anderton  Carrying  Company ;  and  when  the  defendants 
received  notice  that  the  vendor  was  doing  this,  they  were  not  called 
upon  to  do  any  thing,  so  that  their  nonfeasance  is  not  of  any  weight.  I 
think  that,  if  the  bill  of  lading  had  been  received  by  the  defendants 
themselves,  especially  if  they  had  dealt  with  it,  the  case  might  have 
been  different. 

Erle,  J.  The  question  reserved  for  our  opinion  is.  Whether  there 
was  evidence  on  which  the  jury  Avould  have  been  justified  in  finding 
that  the  defendants  had  accepted  part  of  the  goods  sold  and  actually 
received  the  same  ?  And  I  answer  it  in  the  negative.  Placing  goods 
ordered  on  board  ship  is  good  evidence  of  a  delivery  in  sui)port  of  a 
count  for  goods  sold  and  delivered ;  but  that  is  not  the  same  as  the 

1  3  Campb.  528.  2  15  q.  b.  442,  note. 

8  15  Q.  B.  428.  <  16  M.  &  W.  119. 


208  HUNT   V.    HECHT.  [CHAP.   I. 

question  under  the  17th  section  of  the  Statute  of  Frauds.  I  have  no 
doubt  that  the  bill  of  lading,  which  is  the  symbol  of  the  j^roperty,  may 
be  so  received  and  dealt  with  as  to  be  equivalent  to  an  actual  receipt 
of  the  propex'ty  itself;  but  in  the  i^resent  case  the  defendants  neither 
acted  nor  led  the  plaintiff  to  believe  that  they  acted  as  if  they  had 
received  the  goods  or  were  owners  of  them. 

Crompton,  J.  The  question  reserved  was,  not  whether  there  was 
any  evidence  for  the  jury,  but  whether  a  verdict  for  the  plaintiff 
would  have  been  justified.  It  is  clear  that  a  dehvery  to  a  carrier  is  a 
sufiicient  delivery  in  an  action  for  goods  sold  and  dehvered,  but  not 
enouarh  within  the  17th  section  of  the  Statute  of  Frauds.  Hanson  v. 
Armitage  ^  is  now  always  considered  to  lay  down  the  law  con-ectly. 
Then  the  question  comes  to  be,  whether  the  communication  to  the 
defendants  of  the  fact  of  shipment  and  transmission  of  the  bill  of  lad- 
ing to  the  Anderton  Carrying  Company,  and  the  silence  of  the  defend- 
ants, make  any  difference.  These  facts  Avere  such  as  the  vendees  who 
had  given  the  order  must  have  expected  to  take  place ;  and  therefore 
they  were  not  called  on  to  say  any  thing  on  receiving  notice  that  they 
had  taken  place.  Where  goods  or  the  indicia  of  the  property  in 
goods  remain  long  under  the  control  of  the  vendee,  esiDCcially  where 
the  vendee  has  in  any  respect  acted  as  owner  of  the  goods,  there  may 
be  sufiicient  evidence  of  an  acceptance  and  receipt,  although  the  goods 
themselves  are  not  received.  But  in  the  present  case  there  are  no 
facts  of  that  kind  on  which  the  jury  would  have  been  justified  in  find- 
ing a  verdict  for  the  vendor.  Utile  discharged. 


HUNT  V.  HECHT. 

In  the  Exchequer,  June  6,  1853. 

[Reported  in  8  Exchequer  Reports,  814.] 

Declaeation  for  goods  sold  and  delivered.     Plea,  never  indebted. 

At  the  trial  before  Martin,  B.,  at  the  London  sittings  after  Easter 
term,  it  appeared  that  in  February  last  the  defendant  went  to  the 
warehouse  of  the  plaintiff,  who  was  a  bone  merchant,  for  the  purpose 
of  purchasing  some  bones.  The  defendant  there  inspected  a  heap  con- 
sisting of  ox  bones  mixed  with  cow  bones  and  other  bones  of  an  infe- 
rior  description.  The  defendant  objected  to  the  latter,  but  verbally 
agreed  to  purchase  a  quantity  of  the  other  bones,  to  be  separated  from 
the  rest  and  to  contain  not  more  than  15  per  cent,  of  cow  bones;  and 
he  directed  them  to  be  sent  in  sacks  bearing  particular  marks  to  the 

1  5  B.  &  Aid.  557. 


SECT.    IV.]  HUNT   V.    UECHT.  209 

wharf  of  one  Barber  in  Lower  Thames  Street.     Sliortly  afterwards 
the  defendant  sent  to  the  plaintiff  the  following  shipping  note  :  — 

Brewek's,  Chester's,  and  Galley  Quays,  Lower  Thames  Street. 
J.  Barber,  Wharfinger  and  Warclioiise-keepcr. 

Receive  and  ship  per  James  Stuckbury  &  Sons,  lighters,  the  under-mentioned 
goods : — 

I     Mark        |     No.        | 

Wharf  charges  to  be  paid  by  Hecht  Brotliers,  London. 

The  above  sliipping  note  was  enclosed  in  the  following  letter :  — 

35  Seething  Lane,  Feb.  7,  1853. 
Dear  Sir,  —  We  beg  to  enclose  you  shipping  note  for  the  bones,  the  leg  bones 
to  be  marked  — ,  and  the  bullocks  — .     Please  fill  up  the  number  of  bass  in  the 
shipping  note  and  send  the  goods  to  the  wharf,  latest  by  Wednesday  morning 
next.     Waiting  your  invoice  stating  how  many  bags  of  each  sort,  we  are,  sir, 

Yours  sincerely,  IIecht  Brothers. 

Mr.  a.  Jakred  Hunt,  Lambeth. 

The  plaintiff  accordingly  sent  fifty  bags  marked  as  requested,  and 
filled  up  the  shipping  note.  The  bags  were  delivered  at  the  wharf  and 
received  by  the  wharfinger  on  Wednesday  the  9th  of  February ,  but 
the  defendant  was  not  aware  of  their  having  been  sent  until  the  fol- 
lowing  day  when  the  invoice  was  received.  The  defendant  then  exam- 
ined the  bones,  and  refused  to  accept  them,  on  the  ground  that  they 
were  not  Avhat  he  had  bargained  for.  It  was  objected  on  behalf  of  the 
defendant  that  there  was  no  evidence  of  acceptance  and  receipt  to 
satisfy  the  requirements  of  the  17th  section  of  the  Statute  of  Frauds, 
29  Car.  2,  c.  3 ;  and  the  learned  judge  being  of  that  opinion  nonsuited 
the  plaintiff,  rcsei-ving  leave  for  him  to  move  to  enter  a  verdict  for  the 
amount  claimed. 

Knoxcles  in  the  present  tenn  obtained  a  rule  nisi  on  the  authority  of 
Morton  v.  Tibbett ;  ^  against  which 

Brainxoell  shewed  cause.  There  was  no  evidence  of  the  acceptance 
and  actual  receipt  of  the  goods  as  required  by  the  29  Car.  2,  c.  3,  §  17. 
The  wharfinger  was  not  the  agent  of  the  defendant  to  bind  him  by  the 
acceptance  of  any  kind  of  bones  Avhich  might  be  sent;  he  had  only 
authority  to  receive  bones  of  the  description  bargained  for.  In  Morton 
v.  Tibbett  the  vendee  had  re-sold  the  goods,  so  that  he  was  no  longer 
in  a  situation  to  say  that  he  had  not  accepted  them.  Here  the  defend- 
ant repudiated  the  contract  immediately  he  saw  the  bones.  He  also 
referred  to  Meredith  v.  Meioh.^ 

The  court  then  called  on 

Maule  to  support  the  rule.     There  was  ample  evidence  of  an  accept- 
ance and  receipt  of  the  goods.     The  wharfinger  was  the  defendant's 
agent  for  that  purpose ;  and  when  the  goods  were  delivered  at   the 
1  15  Q.  B.  428.  2  Q.  B.,  T.  T.,  May  2G,  1853. 

VOL.  I.  14 


210  HUNT   V.   HECHT.  [CHAP.    I. 

wharf  they  remained  at  the  risk  of  the  vendee,  and  the  vendor  had  no 
longer  any  lien  on  them.  Some  of  the  cases  on  this  subject  have 
attached  a  meaning  to  the  statute  inconsistent  mth  its  language.  It 
has  been  considered  that  so  long  as  the  vendee  was  in  a  situation  to 
object  either  to  the  quantity  or  quality  of  the  goods  there  could 
be  no  acceptance.  The  object,  however,  of  the  statute  was  not  to 
afford  jDrotection  in  cases  where  the  goods  delivered  did  not  correspond 
with  the  contract,  but  to  prevent  persons  from  being  sued  on  fictitious 
contracts.  Morton  v.  Tibbett  ^  shews  that  there  may  be  an  acceptance 
and  receipt  to  satisfy  the  statute,  although  the  contract  has  not  been 
strictly  fulfilled.  Here  the  note  addressed  to  the  whai-finger  is  in  its 
tenns  an  acceptance  of  the  goods.  [Pollock,  C.  B.  The  bones  were 
not  in  a  condition  to  be  accepted  until  a  separation  took  place.  It  is 
like  the  sale  of  oil  which  requires  to  be  measured.]  Elmore  v.  Stone  ^ 
decided  that,  if  a  person  bargains  for  the  purchase  of  goods,  and  desires 
the  vendor  to  keep  them  in  his  possession  for  the  vendee,  and  the  ven- 
dor accepts  the  order,  that  is  a  sufiicient  delivery  of  the  goods  within 
the  statute.  The  acceptance  may  be  either  before  the  receipt  or  con- 
temporaneous with  it.  The  true  criterion  is,  whether  the  property  in 
the  goods  is  changed.  Carter  v.  Toussaint.^  [Martin,  B,  Hanson  v. 
Armitage  *  and  Norman  v.  Phillips  ^  are  express  authorities  that  a 
Avharfinger  or  carrier  is  not  the  agent  of  a  vendee  so  as  to  bind  him  by 
acceptance  of  the  goods.]  At  all  events  there  was  evidence  from 
which  the  jury  might  reasonably  find  an  acceptance  of  the  goods. 
Beaumont  v.  Brengeri,^  Bushel  v.  Wheeler.'^ 

Pollock,  C.  B.  I  am  of  opinion  that  there  was  no  evidence  of  an 
acceptance  and  receipt  to  satisfy  the  requisites  of  the  statute.  All  that 
the  defendant  agreed  to  buy  was  a  quantity  of  bones  of  a  particular 
description,  to  be  separated  from  others  in  the  heap.  He  afterwards 
sent  to  the  plaintiff  a  note  addressed  to  a  wharfinger,  authorizing  the 
latter  to  receive  and  ship  the  bones ;  but  when  the  defendant  saw  them 
at  the  wharf,  he  found  that  they  did  not  correspond  with  his  order, 
and  he  refused  to  accept  them.  Therefore,  although  there  was  a_ 
receipt  of  the  goods  by  a  person  who  had  authority  from  the  defendant 
to  receive  them,  there  was  no  acceptance.  A  person  cannot  accept  a 
commodity  which  is  not  in  a  condition  to  be  accepted  by  reason  of 
its  requiring  to  be  separated  from  a  larger  bulk.  If  the  contract  be  for 
the  purchase  of  a  certain  quantity  of  flour  or  wheat,  part  of  a  larger 
quantity,  there  can  be  no  acceptance  until  it  is  measured  and  set  apart. 
It  seems  to  me  that  the  reqviisites  of  the  statute  have  not  been  com- 
plied with,  and  the  rule  must  be  discharged. 

Alderson,  B.     I  am  of  the  same  opinion.     If  a  person  agrees  to  buy 
a  quantity  of  goods  to  be  taken  from  the  bulk,  he  does  not  purchase 

1  15  Q.  B.  428.  2  1  Taunt.  458.  3  5  B.  &  Aid.  855,  1  D.  &  K.  515. 

4  5  B.  &  Aid.  557.      5  14  M.  &  W.  277.      6  5  c.  B.  301.      ^  15  Q.  B.  442,  note. 


SECT.    IV.]  HUNT   V.    HECHT.  211 

the  particular  part  bargained  for  until  it  is  separated  from  the  rest ; 
and  he  cannot  be  said  to  accept  that  which  he  knows  nothing  of, 
otherwise  it  would  make  him  the  acceptor  of  whatever  the  A'endor 
chose  to  send  him  ;  whereas  he  has  a  right  to  see  M'hether  in  his  judg- 
ment the  goods  sent  correspond  with  the  order.  The  statute  requires 
an  acceptance  and  actual  receipt  of  the  goods ;  here  there  has  been  a 
delivery,  but  no  acceptance- 

Platt,  B.  I  am  of  the  same  opinion.  Until  a  separation  took  place, 
the  thing  bargained  for  was  incapable  of  being  accepted. 

Martix,  B.  The  question  is.  Whether  the  defendant  has  accepted 
and  actually  received  the  goods  bargained  for  ?  The  contract  Avas  to 
buy  such  bones  as  Avere  ordinary  merchantable  bones.  It  appears  that 
there  were  various  sorts  of  bones  intermixed  in  a  heap,  and  that  thei*e 
was  no  purchase  of  the  bulk,  but  of  a  certain  article  to  be  selected  from 
it.  The  defendant  Avas  only  bound  to  accept  merchantable  bones;  and 
an  order  is  given  to  a  Avharfinger  to  receive  those  bones.  No  doubt  in 
one  sense  the  goods  Avere  received  by  the  defendant,  because  they 
were  received  by  a  wharfinger  directed  by  him  to  receive  them.  But 
the  question  is,  Avhether  there  has  been  an  acceptance  to  satisfy  the 
statute.  There  are  A^arious  authorities  to  shoAV  that,  for  the  purpose  of 
an  acceptance  within  the  statute,  the  vendee  must  have  had  the  oppor- 
tunity of  exercising  his  judgment  Avith  resj^ect  to  the  article  sent. 
Morton  v.  Tibbett  has  been  cited  as  an  authority  to  the  contrary ;  buf 
in  reality  that  case  decides  no  more  than  this,  that  Avhere  the  purchaser 
of  goods  takes  upon  himself  to  exercise  a  dominion  over  them,  and 
deals  Avith  them  in  a  manner  inconsistent  with  the  right  of  jDroperty 
being  in  the  vendor,  that  is  evidence  to  justify  the  jury  in  finding  that 
the  vendee  has  accepted  the  goods  and  actually  received  the  same. 
The  court  indeed  there  say  that  there  may  be  an  acceptance  and 
receipt  within  the  statute,  although  the  vendee  has  had  no  opportunity 
of  examining  the  goods,  and  although  he  has  done  nothing  to  j)reclude 
himself  from  objecting  that,  they  do  not  correspond  Avith  the  contract. 
But  in  my  opinion  an  acceptance  to  satisfy  the  statute  must  be  some- 
thing more  than  a  mere  receipt ;  it  means  some  act  done  after  the 
vendee  has  exercised  or  had  the  means  of  exercising  his  right  of  rejec- 
tion. Jiule  discharged. 


212  BIGG   V.   WHISKING.  [CHAP.   I. 

BIGG  V.  WHISIUNG. 
In  the  Common  Pleas,  November  25,  1853. 

[Reported  in  14  Common  Bench  Reports,  195.] 

This  was  an  action  for  goods  sold  and  delivered,  goods  bargained 
and  sold,  &c.  The  defendant  paid  into  court  £38 ;  and  the  plaintiff 
replied  in  damages  ultra. 

The  cause  was  tried  before  Cresswell,  J.,  at  the  second  sitting  in 
London  in  this  term,  when  a  verdict  was  found  for  the  plaintiff,  dam- 
ages £260.  The  facts  were  as  follows :  The  plaintiff  was  a  timber 
dealer  residing  at  Diss  in  Norfolk;  the  defendant  was  a  chair-maker  in 
London.  In  October,  1852,  the  defendant  went  to  Diss,  where  he 
entered  into  a  verbal  contract  with  the  plaintiff  for  the  purchase  of 
some  timber.  The  plaintiff  and  defendant  then  went  to  Mellis,  a  few 
miles  off,  and  to  five  other  places  in  the  neighborhood,  at  each  of  which 
similar  contracts  were  made  for  the  purchase  of  other  lots  of  timber. 
When  they  arrived  at  the  last  place,  viz.,  Stowmarket,  the  parties  pro- 
ceeded to  an  inn  and  dined;  and  the  defendant,  who  was  an  extremely 
illiterate  person,  asked  the  plaintiff  to  make  him  a  memorandum  of 
the  timber  agreed  to  be  bought  and  the  terms.  This  was  accordingly 
done.  A  portion  of  the  timber  was  sent  by  railway  to  London,  the 
defendant  advancing  the  money  for  payment  of  the  carriage,  which 
was  to  be  allowed  liim  by  the  plaintiff.  Several  consignments  of 
timber  were  made  to  the  defendant,  and  accepted  by  him.  On  the 
arrival  of  the  residue  at  the  terminus  in  London,  the  defendant  objected 
that  some  portion  of  it  was  unsound,  and  other  portion  not  the  timber 
contracted  for ;  and  ultimately  he  refused  to  receive  it. 

On  the  part  of  the  defendant  it  was  submitted  that  the  action  would 
not  He,  inasmuch  as  there  was  no  written  contract  applicable  to  each 
purchase,  no  part  payment,  and  no  part  delivery,  and  no  acceptance. 

For  the  plaintiff  the  memorandum  made  at  Stowmarket  was  relied 
on  as  binding  upon  the  plaintiff  by  reason  of  his  signature,  and  upon 
the  defendant  by  reason  of  his  acceptance  of  part  of  the  timber  under 

it. 

The  learned  judge,  upon  the  authority  of  Elliott  v.  Thomas,  3  M.  & 
W.  170,  ruled  that  the  whole  transaction  amounted  to  one  entire  con- 
tract ;  and  that,  as  part  of  the  timber  had  been  received  by  the  defend- 
ant and  money  paid  on  account,  the  provisions  of  the  statute  29  Car. 
2,  c.  3,  §  17,  were  satisfied. 

Byles,  Serjt.,  on  a  foriner  day  in  this  term  moved  for  a  new  trial  on 
the  ground  of  misdirection.  This  was  not  like  the  case  of  Elliott  v. 
Thomas.     There  a  joint  order  was  given  for  the  several  classes  of 


SECT.    IV.]         •  BIGG    V.   WHISKING.  213 

goods,  and  the  acceptance  of  one  class  was  properly  held  to  he  a  part 
acceptance  of  the  avIioIc  Avitliin  the  statute.     Here,  liowever,  the  con- 
tracts were  clearly  and  unmistakably  several ;  and  there  Avas  nothing 
to  tie  them  into  one  contract  except  the  memorandum,  Avhich  was  not 
binding  upon  the  defendant.    [Talfourd,  J.    Surely  the  memorandum, 
which  Avas  made  at  the  defendant's  request,  Avas  some  CAddence  that 
the  parties  had  agreed  that  the  Avhole  should  be  considered  as  one 
contract.     Maule,  J.     Could  the   defendant  haA'e   sued  the  plaintiff, 
treating  the  contracts  as  seA'eral  ?]     The  memorandum  possibly  might 
make  it  a  joint  contract  as  to  the  plaintiff     [Maule,  J.     Did  not  the 
acceptance  of  part  have  the  like  effect  as  to  the  defendant?]     It  might 
be  evidence  a^rainst  him  ;    but  it  did  not  make  the  contract  joint  in 
point  of  laAV.     The  question  should  have  been  submitted  to  the  jury. 
[JiIaule,  J.     There  Avas  uncontradicted  evidence  of  this :  after  having 
agreed  upon  the  purchase  of  various  lots  of  timber,  at  various  places, 
the  defendant  said  to  the  plaintiff,  "  Make  out  a  memorandum  of  the 
contract  for  all  the  timber."     The  plaintiff  does  so,  and  signs  the  memo- 
randum.    That,  if  the  statement  is  believed,  — and  the  defendant  docs 
not  disjjute  it,  —  clearly  constitutes  a  joint  contract.]     The  defendant 
does  dispute  it.     [Maule,  J.     He  does  not  deny  that  the  circumstances 
took  place  as  represented  by  the   plaintiff.      My  brother   Cresswell 
seems  to  have  considered  the  actual  purchase,  before  the  making  of  the 
memorandum,  Avas  one  transaction.]     There  Avas  no  pretence  for  calling 
these  several  })urchases  one  transaction.     If  I  purchase  goods  at  a  shop, 
and  then  go  to  another  shop  belonging  to  the  same  tradesman,  or  even 
to  another  department  or  floor  of  the  same  premises,  and  there  make 
another  bargain,  however  short  the  interval  of  time,  the  transactions 
are  separate.     [Maule,  J.      No  doubt  it  is  perfectly   competent   to 
parties  to  make  separate  contracts,  even  upon  the  same  spot.     Wil- 
liams, J.,  referred  to  Baldey  v.  Parker,  2  B.  &  C.  37,  3  D.  &  R.  220. 
There  A.  went  to  the  shop  of  B.  &  Co.,  linen  drapers,  and  contracted 
for  the  purchase  of  various  articles,  each  of  which  Avas  under  the  value 
of  £10,  but  the  Avhole  amounted  to  £70.     A  separate  price  of  each 
article  Avas  agreed  upon :  some  A.  marked  Avith  a  pencil ;  others  Avere 
measured  in  his  presence ;    and  others  he  assisted  to  cut  from  larger 
bulks.     He  then  desired  that  the  account  of  the  Avhole  might  be  sent 
to  his  house,  and  Avent  aAvay.     A  bill  of  parcels  was  accordingly  sent, 
together  with  the  goods,  AA'hen  A.  refused  to  accept  them.     It  Avas  held 
that  the  AA^hole  was  one  contract.]     No  doubt  where  there  is  one  entire 
order  for  goods,  —  even  though  part  are  to  be  manufu-tured  (Scott  v. 
The  Eastern   Counties   Raihvay  Company,   12  M.  &  W.   33),  — the 
whole  may  be  treated  as  one  transaction.     But  here  the  purchases  of 
the  several  lots  took  place  at  intervals  of  several  miles ;  and  there  Avas 
no  evidence  of  any  agreement  betAveen  the  plaintift'  and  defendant  at 
starting  that  they  should  go  to  the  several  places  named.     [Maule,  J. 


214  BIGG   V.   WHISKING.  •        [CHAP.    I. 

It  seems  they  went  about  timber  buying.  The  case  is  left  in  some 
obscurity.  I  doubt  whether  it  would  be  right  to  grant  a  rule  without 
first  speaking  to  my  brother  CresswelL]  Cur.  adv.  vult. 

Cresswell,  J.  The  facts  of  the  case  were  shortly  these :  The 
plaintiff  and  defendant  first  bargained  together  for  some  timber  which 
was  lying  at  Diss.  They  then  went  to  Mellis  and  bargained  for  more 
timber  there,  and  so  on  at  four  or  five  other  places ;  and  at  the  last 
place,  Stowmarket,  they  dined  together  as  might  have  been  expected. 
Whilst  there  the  defendant,  who  it  appeared  could  not  write,  said  to 
the  2:)laintiff,  "I  should  like  you  to  put  down  what  we  have  been 
doing;"  and  accordingly  the  plaintiff  made  a  memorandum  embodying 
the  whole  transaction,  and  signed  it  and  gave  it  to  the  defendant. "  Part 
of  the  timber  was  sent  and  received  by  the  defendant  in  London  and 
used  in  his  business.  A  considerable  quantity  remained  at  the  railway 
station,  but  the  defendant  upon  some  pretence  refused  to  accept  that. 
I  thought  the  case  fell  clearly  ^^ithin  that  of  Elliott  v.  Thomas, 
3  M.  &  W.  170,  and  that  the  whole  was  one  transaction ;  and  part 
of  the  timber  having  been  accepted  and  paid  for,  the  statute  was 
satisfied. 

Maule,  J,  This  is  certainly  a  very  confused  case;  but  I  think  it 
would  only  be  making  confusion  worse  confounded  to  send  it  down  to 
a  new  trial.  Elliott  v.  Thomas  is  quite  in  point.  It  clearly  was  one 
transaction,  regard  being  had  to  the  peculiar  nature  and  situation  of 
the  bulky  articles  which  formed  the  subject  of  the  contract.  The 
whole  thing  was  in  fieri  until  the  dinner  had  taken  place.  That  being 
over,  a  memorandum  was  made  which  was  binding  upon  the  plaintiff, 
and  also  to  a  certain  extent  (part  of  the  timber  having  been  accepted) 
upon  the  defendant.  I  think  there  has  been  no  failure  of  justice,  and 
no  misdirection.  On  the  contrary  I  think  my  brother  Cresswell  has 
rightly  and  even  dexterously  applied  the  law  to  the  very  confused  state 
of  facts  which  he  had  to  deal  with. 

Williams,  J.  I  am  of  the  same  opinion.  Baldey  v.  Parker  and 
Elliott  V.  Thomas  clearly  govern  this  case.  The  transaction  amounted 
to  a  joint  contract  for  all  the  timber. 

Talfourd,  J.,  concurred.  Hide  refused. 


SECT.    IV.]  HOLMES   V.    HOSKINS.  215 

HOLMES  V.  HOSKINS. 

In  the  Exchequer,  April  22, 1854. 

[Reported  in  9  Exchequer  Reports,  753.] 

AcTiox  for  the  price  of  cattle  sold  by  the  plaintiff  to  the  defendant. 
Plea,  never  indebted. 

At  the  trial  before  Martin,  B.,  at  the  last  Taunton  assizes,  it  appeared 
that  the  defendant,  who  was  a  butcher,  having  seen  fifteen  head  of  cattle 
in  the  plaintiflf's  field  verbally  agreed  Avith  him  on  a  Saturday  to  buy 
the  lot  for  £190.  After  the  bargain  was  concluded  the  defendant  felt 
in  his  pocket  for  his  cheque-book  in  order  to  pay  for  the  cattle ;  but 
finding  that  he  had  not  got  it,  he  told  the  plaiutifi"  to  call  at  his  house 
in  the  evening  and  he  would  pay  him.  It  was  then  arranged  that  the 
cattle  should  remain  in  the  plaintiff's  field  until  the  following  Tuesday, 
as  it  was  inconvenient  for  the  defendant  to  remove  them  before  that 
time  to  his  farm  which  was  ten  miles  distant.  The  plaintiff  called  at 
the  defendant's  house  for  the  money,  but  the  defendant  was  from 
home.  On  the  same  evening  the  defendant  sent  his  men  to  the  plain- 
tiff to  request  that  he  would  allow  them  to  get  some  of  the  jilaintiff 's 
hay  to  feed  the  cattle  with  until  the  defendant  could  remove  them. 
The  plaintifi"  consented,  and  the  men  took  the  hay  from  the  ricks  and 
so  fed  the  cattle  until  the  following  Wednesday.  The  defendant  on 
being  afterwards  asked  for  the  money  said  that  he  had  ofiered  too 
much  for  the  cattle,  and  would  not  have  them. 

It  was  objected  on  behalf  of  the  defendant  that  there  was  no 
evidence  of  an  acceptance  and  receipt  of  the  cattle  to  satisfy  the 
requirements  of  the  17th  section  of  the  Statute  of  Frauds,  29  Car.  2, 
c.  3.  The  learned  judge  Avas  of  that  opinion  and  nonsuited  the 
plaintiff,  reserving  leave  to  him  to  move  to  enter  a  verdict  for  £190 
if  the  court  should  be  of  opinion  that  the  evidence  was  sufficient. 

Kinglahe^  Serjt.,  now  moved  accordingly.  There  was  evidence  for 
the  jury  of  an  acceptance  and  receipt  of  the  cattle  by  the  defendant. 
There  may  be  a  constructive  receipt  by  a  vendee,  although  the  goods 
remain  in  the  jDossession  of  the  vendor.  Whenever  the  vendee  deals 
with  the  goods  in  such  a  manner  as  to  exercise  an  act  of  ownership  over 
them,  that  is  sufficient  to  satisfy  the  requisites  of  the  statute.  Morton  v. 
Tibbett,^  Bushel  u.  Wheeler.^  Here  there  were  circumstances  from 
which  the  jury  might  infer  a  state  of  things  inconsistent  with  the 
possession  of  the  plaintiff".  The  doctrine  laid  down  in  Xorman 
V.  Phillips^  is  qualified  by  Morton  v.  Tibbett.  [Pollock,  C.  B. 
Assuming  that  there  is  a  scintilla  of  evidence,  that  is  not  enough  to 
1  15  Q.  B.  428.  2  15  q.  b.  442,  note.  3  u  M.  &  W.  277. 


216  HOLMES   V.    HOSKINS.  [CHAP.   I. 

warrant  us  in  setting  aside  the  nonsuit.  The  general  rule  is  that 
where  the  evidence  is  so  slight  that  supj^osing  the  jury  found  one  way 
the  court  would  set  aside  the  verdict,  if  in  such  a  case  the  judge 
directs  a  nonsuit  the  court  will  not  interfere.]  Although  the  cattle 
remained  in  the  plaintiff's  field,  they  were  fed  by  the  defendant's 
servants,  and  that  Avas  a  clear  exercise  of  an  act  of  ownership. 
Elmore  v.  Stone  ^  is  an  authority  in  point.  There  the  defendant, 
having  at  first  objected  to  the  price  which  the  plaintifiT  asked  for  some 
horses,  afterwards  sent  word,  "  The  horses  were  his ;  but  that  as  he  had 
neither  servant  nor  stable  the  plaintifi"  must  keep  them  at  livery  for 
him."  The  plaintiff  having  assented,  that  was  held  a  sufficient  .delivery 
within  the  statute.  [Maetix,  B.  In  this  case  neither  party  ever 
intended  that  the  defendant  should  have  the  cattle  until  he  paid  for 
them.  It  was  part  of  the  bargain  that  the  defendant  should  go 
to  the  plaintiff's  field  and  take  his  hay  to  feed  the  cattle  with.] 
Chaplin  v.  Eogers  ^  and  Blenkinsop  v.  Clayton^  are  authorities  to 
shew  that  it  is  a  question  for  the  jury,  whether  the  act  of  the  vendee 
amounts  to  an  act  of  ownership.  [JNlAETm,  B.,  referred  to  Hunt  v. 
Hecht."] 

Pollock,  C.  B.  I  am  of  opinion  that  there  was  no  evidence  to  go 
to  the  jury  of  an  acceptance  and  receipt  of  the  cattle  as  required  by 
the  Statute  of  Frauds.  The  words  of  the  statute  are  very  plain, 
though  no  doubt  there  has  been  a  considerable  fluctuation  of  opinion 
on  the  subject,  and  it  is  difficult  to  reconcile  all  the  cases.  This  may 
perhaps  have  arisen  from  a  rule  being  laid  down  in  one  class  of  cases 
which  is  applicable  to  another  class.  There  may  be  an  acceptance  and 
receipt  of  the  goods  although  they  remain  in  the  possession  of  the 
vendor ;  for  instance,  if  the  vendee  takes  the  goods  and  gives  them 
to  a  porter,  and  as  he  is  about  to  carry  them  away  the  vendee  says  to 
the  vendor,  "  I  would  rather  leave  them  here  until  to-morrow."  In 
this  case,  however,  there  is  no  evidence  of  acceptance  and  receipt. 

Parke,  B.  I  am  of  opinion  that  there  was  no  reasonable  evidence 
to  go  to  the  jury  of  an  acceptance  and  receipt  of  the  cattle.  In  order 
to  satisfy  the  statute,  there  must  be  an  acceptance  and  an  actual  or 
constructive  delivery.  Now  in  this  case  there  was  no  actual  delivery ; 
and  therefore,  to  entitle  the  plaintifiT  to  recover,  there  must  be  such  a 
dealing  with  the  cattle  by  the  defendant  as  owner  that  the  plaintiff 
would  lose  his  lien.  But  it  is  clear  that  the  plaintiff  never  meant  to 
part  with  the  cattle  until  the  price  was  paid,  and  there  is  no  ground 
for  holding  that  the  mere  giving  permission  to  feed  the  cattle  changed 
the  possession.  In  Tempest  v.  Fitzgerald,"  which  was  an  action  for  the 
price  of  a  horse  which  had  died  after  the  time  when  it  was  sold  by 
parol,  and  before  it  was  delivered  or  paid  for,  the  only  evidence  of 

1  1  Taunt.  458.  2  i  East,  192.  3  7  Taunt.  597,  1  B.  Moore,  328. 

♦  8  Excb.  814.  5  3  B.  &  Aid.  680. 


SECT.    IV.]  HOLMES   V.    HOSKINS.  217 

acceptance  and  receipt  M'as  that,  while  the  horse  remained  in  tlie  pos- 
session of  the  vendor,  tlie  purchaser  made  his  servant  gallop  it,  and 
gave  directions  about  its  future  treatment,  requesting  that  it  might  be 
kept  by  the  vendor  a  Aveek  longer ;  and  the  Court  of  King's  Bench 
held  that  there  was  no  accejitance  of  the  horse  within  the  meaning  of 
the  statute.  In  this  case  there  has  been  no  actual  receipt,  for  the 
defendant  never  had  the  cattle ;  and  the  only  question  is,  whether  the 
act  of  feeding  the  cattle  with  the  plaintiff's  assent  is  an  exercise  of 
such  an  act  of  ownership  as  to  amount  to  an  acceptance  and  construc- 
tive delivery.  I  think  that  it  is  not.  In  the  case  of  Tempest  v.  Fitz- 
gerald the  jury  found  that  the  defendant,  by  riding  the  horse  and 
giving  directions  respecting  its  future  treatment,  exercised  an  act  of 
ownership  over  it ;  but  the  court  held  that  there  was  no  acceptance, 
since  by  the  terms  of  the  contract  the  defendant  had  no  right  of  prop- 
erty in  the  horse  until  the  price  was  paid,  and  therefore  he  could  not 
exercise  any  right  of  ownership.  My  brother  Kinglake  relied  on 
Elmore  v.  Stone ;  but  that  case  is  very  different  from  the  present ;  for 
there,  when  the  vendor  assented  to  the  purchaser's  request,  there  was 
an  act  of  acceptance  by  which  the  former  lost  his  lien.  Lord  Mansfield, 
C.  J.,  in  delivering  the  judgment  of  the  court  says :  "After  the  defend- 
ant had  said  that  the  horses  must  stand  at  livery,  and  the  plaintiff  had 
accepted  the  order,  it  made  no  difference  whether  they  stood  at  livery 
at  the  vendor's  stable,  or  whether  they  had  been  taken  away  and  put 
in  some  other  stable.  The  plaintiff  possessed  them  from  that  time,  not 
as  owner  of  the  horses,  but  as  any  other  livery-stable  keeper  might 
have  them  to  keep."  In  this  case  the  plaintiff  never  lost  his  lien  on 
the  cattle;  for  there  is  nothing  to  shew  that  he  ever  intended  to 
deliver  them  up  without  being  paid. 

Aldeksox,  B.  I  am  of  the  same  opinion.  It  seems  to  me  that  the 
case  of  Tempest  v.  Fitzgerald  is  precisely  in  point.  There  the  defend- 
ant's servant  galloped  the  horse,  here  the  defendant's  servant  fed  the 
cattle.  The  two  acts  are  in  substance  the  same ;  the  one  is  the  giving 
proper  exercise,  the  other  proper  food. 

Martin,  B.  I  am  of  the  same  opinion.  There  was  a  perfectly  good 
verbal  bargain ;  and  if  the  common  law  had  not  been  altered  by  the 
statute  in  question,  the  plaintiff  would  have  been  clearly  entitled  to 
recover.  But  the  statute  says  that  no  contract  of  this  sort  shall  be 
binding  unless  the  buyer  shall  accept  part  of  the  goods  and  actually 
receive  the  same,  or  unless  there  be  a  part  payment  or  note  in  writing. 
In  this  case  none  of  those  requisites  have  been  complied  with.  Xuither 
party  intended  that  the  defendant  should  have  the  cattle  until  he  paid 
for  them.  Indeed  if  the  plaintiff  had  been  told  that  the  defendant  had 
removed  the  cattle  from  the  field,  he  would  no  doubt  have  considered 
that  the  defendant  had  robbed  him.  It  is  evident  that  the  cattle  were 
sold  for  ready  money ;  for  when  the  bargain  was  concluded  the  defend- 


218  PARKER  V.    WALLIS.  [CHAP.  I. 

ant  felt  in  his  pocket  for  his  cheque-book,  but  finding  that  he  had  not 
got  it  he  told  the  plaintiff  to  come  to  his  house  for  payment.  It  was 
part  of  the  bargain  that  for  a  few  days  the  defendant's  servants  should 
go  to  the  plaintiff's  field  and  take  his  hay  to  feed  the  cattle  with ;  but 
that  did  not  alter  the  property  in  the  cattle,  which  remained  in  the 
possession  of  the  plaintiff  throughout;  and  if  the  defendant  had  taken 
them  away,  he  would  have  been  liable  to  an  action  of  trespass. 

Mule  refused. 


WILLIAM    PARKER  v.  HENRY    WALLIS    and    ABRAHAM 

WALLIS. 

In  the  Queen's  Bench,  May  5,  1855. 

[Reported  in  5  Ellis  ^-  Blackburn,  21.] 

Count  alleging  that  plaintiff  sold  to  defendants  turnip-seed  then 
growing,  to  be  haiwested  and  thrashed  by  plaintiff  and  then  delivered 
to  defendants  as  they  should  direct ;  that  the  seed  was  harvested  and 
thrashed,  and  plaintift'  delivered  part  which  was  accepted  and  actually 
received  by  the  defendants.  General  averments  of  performance. 
Breaches ;  that  defendants  would  not  accept  the  residue,  nor  pay  for 
the  part  received. 

Pleas :  amongst  others,  that  plaintiff  did  not  sell  to  the  defendants, 
nor  did  they  buy  of  the  plaintiff  the  seed ;  and  that  the  plaintiff  did 
not  deliver,  nor  did  the  defendants  accept  the  part.     Issues  thereon. 

On  the  trial  before  Wightman,  J.,  at  the  last  spring  assizes  for  Suf- 
folk, the  plaintiff  gave  evidence  by  which  it  appeared  that  the  plaintiff 
was  a  farmer,  and  the  defendants  were  in  partnership  as  seed  and  com 
merchants  at  Ipswich.  On  the  21st  June,  1854,  the  plaintiff  and  the 
defendants  being  at  Bury  market  verbally  made  a  contract  for  the  sale 
of  seed  of  the  value  exceeding  £10  to  the  effect  set  forth  in  the  count; 
and  the  defendants  named  the  railway  to  Ipswich  as  one  mode  by 
which  the  seed  might,  when  harvested,  be  sent  to  them  at  Ii^swich.  In 
July  the  seed  was  harvested  and  thrashed  ;  and  on  the  24th  July 
twenty  sacks  of  the  seed  were  sent  by  the  plaintiff  by  railway  to  the 
defendants  at  Ipswich.  On  Wednesday,  26th  July,  the  twenty  sacks 
arrived  at  Ipswich.  On  that  same  day  the  plaintifi"  and  the  defendant 
Abraham  Wallis  were  both  at  Bury  market.  The  defendant  Abraham 
Wallis  said  to  the  plaintiff  that  a  messenger  had  just  come  up  from 
Ipswich  from  his  brother  Henry,  to  say  that  the  seed  sent  by  plaintiff 
had  just  arrived  and  was  out  of  condition.     The  plaintiff  said  that  the 


SECT.    IV.]  PARKER   V.    WALLIS.  219 

seed  was  in  goocT  conclition,  and  so  Abraham  TVallis  would  find  when 

he  examined  it.     Abraham  Wallis  said  lie  could   say  no  more,  as  he 

had  not  seen  it  himself.     The  only  evidence  of  this  conversation  was 

given  by  the  plaintiff;    and  according  to  his  recollection  nothing  more 

then  passed.     The  following  correspondence  was  given  in  evidence: — 

Defendants  to  plaintiff:  — 

Ipswich,  7  Mo.  28. 

Rkspected  Fkiend,  —  A  personal  inspection  of  the  twenty  sacks  turnip-seed 
fully  confirmed  what  we  said  on  Wednesday.  It  is  both  hot  and  mouldy  ;  and 
we  must  beof  to  decline  it  alt02ether.     It  now  waits  your  instructions  for  removal. 

Plaintiff  to  defendants  :  — 

MlLDENHALL,  31st  Julv,  1854. 

The  twenty  combes  of  turnip-seed  was  in  good  condition  this  day  week  when 
delivered,  as  good  as  any  that  I  have  delivered  this  season,  which  I  have  witness 
to  prove,  and  I  duly  advised  you  of  it ;  and  as  to  what  may  have  happened  to  it 
since,  of  course  I  cannot  be  accountable  for.  I  have  the  remaining  forty  combes 
ready  for  delivery,  waiting  your  order. 

Defendants  to  plaintiff:  — 

Ipswich,  8  Mo.  1,  1854. 

As  you  have  failed  to  fulfil  your  contract,  we  shall  purchase  seed  elsewhere. 
The  twenty  sacks  which  you  authorized  us  to  receive  for  you,  and  to  lay  out  thin 
in  consequence  of  its  being  hot  and  mouldy,  we  have  now  directed  td  be  returned 
to  the  Eastern  Counties  Railway  Station  to  wait  your  orders,  and  must  request 
you  to  return  and  empty  sacks. 

Plaintiff's  attorney  to  defendants  (extract) :  — 

Gentlemen,  —  I  am  instructed  by  Mr.  William  Parker  of  Mildenhall  to 
apply  to  you  for  payment  of  the  turnip-seed  you  purchased  of  him,  twenty  sacks 
of  which  have  been  delivered,  and  the  remainder  has  been  for  some  time  past 
waiting  your  directions  and  standing  at  your  expense.  The  authority  you  alluded 
to  in  your  letter  of  the  1st  instant  is  most  positively  denied  by  my  client ;  and 
the  date  of  the  delivery  to  you,  and  of  the  letters  passing  between  you  and  Mr. 
Parker,  plainly  shew  that  such  an  authority  could  never  have  been  given,  and 
certainly  never  was  contemplated  by  my  client. 

Defendants  to  plaintiff's  attorney  (extract) :  — 

Ipswich,  8  Mo.  8,  1854. 

In  reply  to  thy  letter  we  beg  to  say  that,  as  Mr.  Parkers  memory  seems  so 
very  forgetful,  we  fortunately  are  able  to  remember  for  him ;  and  we  have  full 
and  sufficient  witness  to  the  authority  upon  which  we  acted,  and  to  which  allusion 
is  made  in  our  letter  of  the  1st  instant,  in  our  young  man  who  stood  by  and  heard 
the  order  given  to  us  to  receive  it  on  his  account  and  lay  it  out  thin  to  cool. 

The  rest  of  the  evidence  of  the  plaintiff  went  to  shew  that  the  seed 
in  point  of  fact  was  good  when  it  went  to  the  railway ;  that  the  condi- 
tion of  the  seed  can  easily  be  ascertained  without  spreading  it  out 
thin  ;  and  that  prices  had  fallen  very  much  between  the  21st  June  and 
the  26th  July. 


220  PAEKER   V.    WALLIS.  [CHAP.    I. 

The  defendants  claimed  a  nonsuit  on  the  ground  that  there  was  no 
evidence  to  satisfy  the  Statute  of  Frauds.  The  learned  judge  directed 
a  nonsuit,  with  leave  to  move  to  enter  a  verdict  for  £140  if  there  was 
evidence  of  an  acceptance  and  actual  receipt  of  any  j)art  of  the  tur- 
nip-seed. 

G' Medley  in  the  ensuing  term  obtained  a  rule  nisi  accordingly. 
D.  Povjer  and  II.  3Iills  now  shewed  cause.  The  question  is,  not 
whether  there  was  evidence  that  the  defendants  ought  to  have  accepted 
part  of  the  seed,  but  whether  there  was  evidence  that  they  did  accept 
it.  Now  it  appears  that  on  the  very  day  it  arrived  Abraham  Wallis 
infoi-med  the  plaintiff  that  it  was  rejected.  The  plaintiff  relies  on  let- 
ters subsequent  to  that  date,  in  which  the  defendants  say  that  the  seed 
had  been  spread  out  thin  by  plaintiff's  authority.  Supposing  that  this 
Avas  not  really  authorized  by  plaintiff,  and  that  defendants  by  mistake 
or  even  wilfully  did  an  unauthorized  act,  still  it  is  not  an  acceptance 
of  the  seed  which  they  have  rejected.  [Lord  Campbell,  C.  J.  This 
court  in  Morton  v.  Tibbett  ^  held,  contrary  to  some  previous  dicta, 
though  not  I  think  to  any  decision,  that  acts  might  amount  to  an 
acceptance  within  the  statute,  though  they  did  not  preclude  the  vendee 
fi-om  contending  that  the  goods  were  not  such  as  to  corresj^ond  with 
the  contract;  but  still  there  must  be  an  act  of  acceptance.]  There 
must  be  such  an  act,  something  done  with  intent  to  take  to  the  goods 
as  owner.  Curtis  v.  Pugh.^  It  may  be  admitted  that  if  the  defendants 
had  done  any  act  inconsistent  with  their  refusal  to  take  the  goods, 
that  might  have  operated  as  an  acceptance,  as  if  they  had  sold  them 
(Chapman  v.  Morton  ^),  or  kept  them  unreasonably  long,  or  done  any 
other  unequivocal  act  of  ownership  ;  but  here  they  merely  do  an  act 
necessary  for  the  benefit  of  the  goods. 

O' Medley  and  Worlledge,  contra.  The  case  for  the  plaintiff  was 
that  the  partner  who  stayed  at  Ipswich  took  to  the  goods  as  owner, 
and  as  such  spread  them  out  thin.  The  refusal  of  the  other  partner  at 
Bury  could  not  prevent  that  from  oj^erating  as  an  acceptance.  [Ekle, 
J.  If  the  seed  was  hot  and  mouldy,  it  would  be  a  very  proper  thing 
to  spread  it  out  thin  and  air  it,  so  as  to  prevent  it  fi-om  perishing.  I 
should  be  very  unAvilling  to  say  that,  if  perishable  property  is  delivered 
out  of  condition,  the  vendee  who  rejects  it  must  suffer  it  to  perish  or 
take  to  it  as  owner.]  It  is  not  contended  for  the  plaintiff  that  an  act 
done  for  the  benefit  of  the  article  would  necessarily  be  an  act  of  accept- 
ance ;  but  in  this  case  there  was  evidence  that  the  seed  was  in  good 
condition,  that  spreading  it  out  thin  was  not  necessary  for  its  examina- 
tion, and  that  the  plaintiff  had  not  authorized  the  defendants  to  spread 
it  out  thin.  The  defendants  after  the  dispute  asserted  that  they  spread 
it  out  thin  by  the  plaintiff's  authoi-ity,  because  it  was  hot  and  mouldy. 
That  was  evidence  from  Avhich  the  plaintiff  might  fairly  ask  the  jury 
1  15  Q.  B.  428.  2  10  Q.  B.  111.  a  11  M.  &  W.  534. 


SECT.    IV.]  PARKER   V.    WALLIS.  221 

to  infer  that  the  defendants  at  Ipswich  had  done  an  act  of  ownership, 
and  that  they  afterwards  gave  false  reasons  in  the  hope  of  doing  away 
with  its  effect. 

Lord  Campbell,  C.  J.  I  do  not  think  Ave  shonUl  be  justified  in 
making  the  rule  absolute  to  enter  a  v^erdict  for  the  plaintiff;  for  whether 
the  evidence  would  have  warranted  the  jury  in  finding  that  there  was 
an  acceptance  is  at  least  very  doubtful ;  but  at  the  same  time  I  cannot 
say  that  there  is  not  some  evidence  to  go  to  the  jury. 

Of  the  law  there  is  no  doubt.  To  make  an  acceptance,  it  is  not 
necessary  that  the  vendee  should  have  acted  so  as  to  preclude  himself 
from  afterwards  making  objection  to  the  quality  of  the  article  deliv- 
ered ;  but  he  must  have  done  something  indicating  that  he  has  accepted 
part  of  the  goods  and  taken  to  them  as  owner.  This  may  be  indicated 
by  his  conduct,  as  when  he  does  any  act  which  Avoxild  be  justified  if  he 
was  the  owner  of  the  goods  and  not  othei'wise.  In  such  a  case  the 
vendee  doing  that  act  is  supposed  to  have  accepted  the  goods  and 
become  owner  of  them.  Thus  detention  of  the  goods  for  a  long  and 
unreasonable  time  by  the  vendee  is  evidence  that  he  has  accepted 
them ;  but  in  the  present  case  there  was  no  detention  of  that  kind 
before  the  letter  of  the  28th  of  July ;  and  detention  after  that  letter, 
stating  that  the  seed  was  rejected  and  waited  the  plaintiff's  order  for 
its  removal,  amounted  to  nothing.  But  then  it  appears  by  the  defend- 
ants' own  letters  that  they  had  spread  the  seed  out  thin.  That  is  an 
act  of  a  doubtful  character.  If  the  seed  was,  as  the  defendants  assert, 
hot  and  mouldy,  I  should  say  that  spreading  it  out  thin  was  an  act 
done  by  the  vendee,  not  as  an  act  of  ownership,  but  for  the  benefit  of 
the  vendor ;  but  in  this  case  there  was  evidence  that  the  seed  was 
good.  Whether  it  was  an  act  of  acceptance  depends  on  whether  it 
was  an  act  done  by  the  defendants  as  owners  of  the  goods,  or  an  act 
done  for  the  benefit  of  the  article  by  the  disapi)ointed  vendee  acting 
for  the  benefit  of  the  vendor.  On  the  evidence  it  is  left  in  doubt  which 
it  was ;  and  I  think  that  was  a  question  for  the  jury.  I  think  therefore 
that  the  rule  should  be  moulded,  and  made  absolute  for  a  new  trial. 

WiGiiTMAjf,  J.  I  do  not  doubt  that  such  a  dealing  Avith  the  goods 
as  this  may  in  law  amount  to  an  acceptance,  if  it  be  done  with  the 
intent  to  accept  the  goods;  but  in  the  present  case  I  find  great  ditli- 
culty  in  discovering  any  evidence  of  such  an  wiimits  accipiendi.  The 
whole  transaction  from  the  time  the  goods  were  sent  off  by  the  ])lain- 
tifi*  occupied  less  than  a  week ;  and  from  the  first  to  the  last  the  defend- 
ants refuse  to  take  to  the  goods.  In  the  letter  of  the  1st  of  August 
the  defendants  state  that  they  had  spread  out  the  twenty  sacks  thin  in 
consequence  of  authority  from  the  plaintiff,  it  being  hot  and  mouldy ; 
and  the  plaintiff  denies  that  he  gave  such  authority ;  but  I  can  see 
nothing  in  that  letter  to  indicate  any  intention  to  accej)t  any  part  of 


222  PARKER   V.    WALLIS.  [CHAP.    I. 

the  goods.  It  may  be  that  the  seed  was  not  hot  and  mouldy  ;  but  it 
would  be  suiBcient  to  explain  the  act  that  the  defendants  thought  it 
was.  I  confess  therefore  that  I  find  difficulty  in  seeing  what  evidence 
there  was  of  the  animus  accipiendi  to  leave  to  the  jury. 

Ekle,  J.  There  being  a  verbal  contract  for  the  suj^ply  of  goods  of 
above  the  value  of  £10,  the  vendor  had  delivered  some  goods,  which 
according  to  his  evidence  were  of  that  kind  which  according  to  the 
contract  he  was  to  supply.  And  the  question  is,  whether  that  contract 
was  binding  on  the  defendants.  One  mode  in  which  such  a  contract 
may  be  made  binding  is  if  the  vendee  accept  and  actually  receive  part 
of  the  goods.  I  think  it  clear  that  if,  after  goods  have  arrived,  the 
vendee  does  any  act  to  the  goods,  of  wrong  if  he  is  not  owner  of  the 
goods,  and  of  right  if  he  is  owner  of  the  goods,  the  doing  of  that  act 
is  evidence  that  he  has  accepted  them. 

In  the  present  case  the  seed  came  to  the  premises  of  the  defendants ; 
and  it  appears  by  the  admission  contained  in  their  letters  that  the 
defendants  took  the  seed  out  of  the  sacks  and  spread  it  out  thin.  Now 
if  the  seed  was  hot  and  mouldy,  the  taking  it  out  of  the  sacks  and 
spreading  it  out  thin  would  not  be  a  wrongful  act,  though  not  done  by 
the  defendants  as  owners ;  nor  would  it  be  done  by  the  authority  of 
the  plaintiff.  In  the  letter  the  defendants  set  up  both  these  explana- 
tions ;  but  at  the  time  the  nonsuit  is  ordered  the  evidence  stands  that 
the  seed  was  not  hot  and  mouldy,  and  also  that  there  was  not  authority 
from  the  plaintiff  to  spread  it  out.  These  two  suppositions  being  nega- 
tived, the  spreading  out  of  the  seed  is  an  act  which  would  be  one  of 
wrong  if  the  defendants  were  not  owners  of  the  goods  and  of  right  if 
they  were.  Therefore  the  doing  of  that  act  is  evidence  for  the  jury 
that  they  had  accepted  the  goods. 

Crompton,  J.  The  question  is,  whether  there  is  any  e\adence  that 
the  defendants  in  spreading  out  this  seed  thin  acted  as  owners  receiv- 
ing it  under  the  parol  contract.  Of  the  fact  that  they  did  so  spread  it 
out  there  is  no  doubt ;  but  it  is  an  act  explainable  on  three  supposi- 
tions :  First,  they  may  have  spread  it  out  by  the  authority  of  the  ven- 
dor, the  plaintiff;  second,  they  may  have  done  it  for  the  benefit  of  the 
seed,  a  perishable  article  in  such  a  condition  as  to  j-ender  the  step 
proper ;  third,  they  may  have  done  the  act  as  owners,  spreading  it  out 
for  their  own  convenience ;  for  it  is  not  denied  that  it  Avas  a  more 
extensive  act  than  was  necessary  for  mere  examination  to  see  if  it  was 
good.  Now  there  was  contradictory  evidence  as  to  whether  the  plain- 
tiff had  authorized  it ;  so  the  plaintiff  was  not  bound  by  that  first 
explanation,  unless  the  jury  found  that  there  was  authority.  Then 
there  was  evidence  that  the  seed  was  in  such  a  condition  that  the 
defendants  could  not  have  done  the  act  for  its  benefit ;  so  that  the  plain- 
tiff was  not  bound  by  that  explanation.     If  these  two  were  negatived 


SECT.    IV.]  TOMKINSON    V.    STAIGHT.  223 

by  the  jury,  there  remained  the  third  explanation  only ;  so  that  I  cannot 
say  that  there  is  no  evidence  of  an  acceptance ;  but  I  think  that  the 
court  do  right  to  mould  the  rule,  as  the  evidence  is  not  sufficiently  satis- 
factory to  justify  us  in  entering  a  verdict. 

Hule  absolute  for  a  new  trial. 


TOMKINSON   AND  Another  v.   STAIGHT. 
In    the   Common   Pleas,   January   21,    1856. 

[Reported  in  25  Law  Journal  Rejiorts,  Common  Pleas,  85.] 

This  was  an  action  for  £25  for  goods  bargained  and  sold,  &c. 

Plea,  never  indebted  except  as  to  part,  and  as  to  that  jiart,  pay- 
ment. 

At  the  trial  before  Cresswell,  J.,  at  the  Middlesex  sittings  in 
Michaelmas  term,  it  aj^peared  that  the  action  was  brought  for  the  price 
of  a  piano  sold  by  the  plaintiffs  to  the  defendant.  It  appeared  from 
the  evidence  of  Johnson,  one  of  the  plaintiffs,  that  he  had  received 
two  bills  of  exchange  from  a  jjcrson  named  Mott,  one  for  £22  and  the 
other  for  £18,  and  .that  the  defendant  had  discounted  them.  The 
defendant  afterwards  called  at  the  plaintiffs'  sho}),  looked  at  a  piano 
and  ordered  it  to  be  sent  to  his  premises.  The  price  was  to  be 
£15  105.,  and  according  to  the  plaintiff  Johnson's  evidence  was  to  be 
paid  in  ready  money.  The  piano  was  sent  to  the  defendant's  premises 
and  delivered,  and  the  bill  was  immediately  afterwai'ds  tendered  for 
the  amount.  The  defendant  refused  to  pay  ready  money,  insisting 
that  the  pianoforte  was  by  agreement  to  remain  as  a  security  for  the 
bills,  and  he  refused  to  allow  the  plaintiffs  to  take  it  away  again  from 
his  premises.  He  gave  evidence  at  the  trial  that  at  the  time  when  he 
discounted  the  bills  for  the  plaintiffs  it  was  agreed  between  him  and 
them  that  two  pianofortes  should  be  delivered  to  him  as  security  for 
the  amount  of  the  bills,  and  that  the  acceptor  Mott  had  become 
insolvent  before  the  bills  had  become  due.  There  Avas  no  agreement 
or  memorandum  in  Avriting  as  to  the  sale  of  the  jiianoforte.  For  the 
defendant  it  was  contended  that,  even  if  the  'plaintiffs'  evidence  were 
believed,  they  were  not  entitled  to  recover,  as  the  contract  Avas  for 
the  sale  of  goods  for  the  price  of  £10  and  upwards  and  was  not  in 
writing,  nor  Avas  there  any  sufficient  acceptance  imder  the  17th  section 
of  the  Statute  of  Frauds,  29  Car.  2,  c.  3.  The  jury  found  a  verdict 
for  the  jilaintiffs  for  £15  10s.,  and  the  learned  judge  reserved  leave 
to  the  defendant  to  move  to  set  aside  the  verdict  and  enter  a  non- 
suit. 


224  TOMKINSON  V.    STAIGHT.  [CHAP.   I. 

A  rule  nisi  having  been  obtained  accordingly, 

J.  Broion  now  shewed  cause.     There  is  no  ground  for  entering  a 
nonsuit.     There  was  abundant  evidence  of  an  acceptance  of  the  goods 
to  satisfy  the  17th  section  of  the  Statute  of  Frauds.     The  plaintiff 
Johnson  says  that  he  sold  and  delivered  to  the  defendant  a  pianoforte 
for  £15  10s.  to  be  paid  for  in  cash,  and  that  the  defendant  actually 
received  it,  and  that  therefore  there  was  no  necessity  for  a  memo- 
randum of  the  contract  in  writing.     The  defendant  does  not  deny  that 
the  pianoforte  was  ordered  and  received  and  that  there  was  a  contract, 
but  he  says  it  had  been  previously  arranged  that  it  was  to  be  taken  as 
security  for  moneys  which  he  had  advanced  upon  certain  bills ;  and  it  is 
contended  for  the  defendant  that  this  acceptance  not  being  on  the 
terms  set  up  by  the  plaintiff  was  not  an  acceptance  under  the  statute. 
The  words  of  the  statute   29  Car.  2,  c.  3,  §  17,  are:    "Except  the 
buyer   shall   accept   part  of  the  goods  so  sold   and   actually   receive 
the  same."     The  pianoforte  was  accepted  and  actually  received  by  the 
defendant.     But  it  is  said  that  the  acceptance  in  order  to  satisfy  this 
section  must  be  such  an  acceptance  as  will  be  equivalent  to  a  memo- 
randum in  writing  containing  all  the  substantial  terms  of  the  contract. 
The  real  meaning  of  the  provision  of  the  statute  however  seems  to  be 
that,  if  a  man  has   accepted  and  kept   goods   delivered  to  him  by 
another,  there  is  good  reason  for  supposing  that  there  was  a  contract 
between  them,  and  then  a  jury  may  find  the  terms  of  the  contract  on 
parol  evidence.     If  goods  are  received,  and  there  is  no  dispute  about 
the  quaUty  or  any  matter  of  that  sort,  the  jury  may  inquire  into  the 
terms  on  which  they  were  received ;  otherwise  the  ordinary  case  of 
acceptance  would  be  the  most  complicated  of  any  under  the  statute. 
It  does  not  appear  that  the  objection  now  taken  was  ever  taken  before, 
though  the  case  must  have  occurred  very  often  since  the  passing  of  the 
statute.     In   Phillips  v.  BistolH^  it  was  said  that  there  must  be  a 
delivery  of  the  goods  by  the  vendor  with  an  intention  of  vesting  the 
right  of  possession   in  the   vendee;    and  there   must  be   an  actual 
acceptance  by  the  latter  with  an  intention  of  taking  possession  as 
owner.     In  the  present  case  there  were  both.     Supposing  the  goods 
had  been   consumable  goods   and   had  been   consumed,  it  must  be 
contended    on   the    other  side,  in  order  to  support  their  argument, 
that  that  did  not  amount  to  an  acceptance.     In  Morton  v.  Tibbett  ^ 
it  was  held  that  an  acceptance  and  receipt  under  the  statute  do  not 
preclude  the  purchaser  of  goods  from  objecting  to  the  quantity  or 
quality  of  the  goods,  or  disputing  the  fact  of  the  performance  of  the 
contract,  but  the  effect  of  them  is  only  to  dispense  with  the  necessity 
of  a  written  memorandum  of  the  contract.     In  the   notes  in   Chitty's 
Statutes  to  the  17th  section  the  cases  on  this  point  are  collected.     It 

1  2  B.  &  C.  511 ;  s.  c.  2  Law  J.  Rep.  K.  B.  116. 

•i  15  Q.  B.  Rep.  428 ;  s.  c.  19  Law  J.  Rep.  (n.  s.)  Q.  B.  382. 


SECT.    IV.]  TOMKINSON    V.    STAIGHT.  225 

surely  is  not  competent  for  the  defendant  to  set  up  under  the  statute 
the  objection  that  he  liimself  is  a  tortfeasor.  If  tliis  olyection  were  to 
prevail,  a  much  wider  and  very  different  operation  would  be  o-iven  to 
the  Statute  of  Frauds  than  has  ever  yet  been  thoutrlit  of 

jByles,  Serjt.,  and  Sumner,  in  support  of  the  rule.     The  rule  ought 
to  be  made  absolute.      There  was  no  acceptance  by  the  defendant 
under   the    17th   section    of  the   Statute   of   Frauds.      The   plaintiff 
Johnson   alleges  that  the  piano  was  sold  and  delivered,  to  be  paid  for 
on  delivery ;  but  the  defendant  says  that  by  agreement  Avitli  the  ])lain- 
tiffs  he  was  to  discount  certain  bills  for  the  plaintiffs,  and  to  take  the 
pianoforte  in  question   and  another  and  to  hold  them  as  security  for 
the  payment  of  the  bills ;   and  he  accepted  the  pianoforte  in  pursuance 
of  that  agreement,  and  that  therefore  there  was  no  acceptance  on  the 
terms   set   up   by   the   plaintifis   to  satisfy   the   statute.      The   main 
question   is   upon   Avhom    the    onus   proba)idi    lay,   because    if   the 
defendant  had  said,  "  I  take  the  piano  on  the  terms  of  the  contract 
stated  by  the  plaintifis,"  there  would  have  been  no  doubt  about  the 
matter.     It  is  for  the  plaintiffs  to  make  out  the  acceptance  in  order  to 
satisfy  the  statute.     Lillywhite  v.  Devereux  ^  and  Morton  v.  Tibbett. 
The  plaintiffs  must  prove  the  acceptance  of  the  goods  upon  the  con- 
tract set  up.     [Cresswell,  J.     Can  you  say  the  defendant  did  not  get 
the  goods  on  the  contract  made  ?]    The  defendant  says  he  got  them  on 
a  contract  made.     [Cresswell,  J.    The  jury  found  what  was  the  con- 
tract made.]     The  acceptance  must  be  one  which  is  equivalent  to  a 
memorandum  in  Avriting  and  that  must  shew  all  the  terms  of  the  con- 
tract, and  the  plaintiffs  must  prove   such   an   acceptance.      [Cress- 
well, J.    If  this  doctrine  were  established  it  would  lead  to  some  most 
extraordinary  results,  and  would  give  a  defendant  a  remarkable  op})or- 
tunity  of  defrauding  a  creditor.      The  defendant  on  the  delivery  of 
goods  sold  at  a  certain  price  would  have  only  to  say  that  was  not  the 
price,  but  a  smaller  one,  and  to  refuse  to  give  them  up ;  and  though  a  jurv 
found  that  the  greater  price  was  agreed  on,  the  defendant  might  defeat 
the  action  by  saying  that  he  did  not  accept  the  goods  at  the  greater 
price.]     The  acceptance  in  this  case  was  not  in  fact  accordino-  to  the 
evidence  an  acceptance  on  the  terms  suggested  by  the  plaintiffs,  but  the 
defendant  took  the  piano  on  his  own  representation  of  the  contract. 
In  Maberley  r.  Sheppard  -  it  was  held  that,  where  the  defendant  hail 
employed  the  plaintiff  to  construct  a  wagon,  'and  while  the  Avao-on 
was  in  the  plaintiff's  yard  unfinished  procured  another  person  to  fix 
the  iron-work  and  a  tilt  upon  it,  there  was  not  an  acceptance  of  the 
wagon   under  the   17th  section.      Tindal,  C.  J.,  there  said:  "The  cir- 
cumstances of  this  case  certainly  leave  it  open  to  doubt  whether  the 

1  15  Mee.  &  W.  285. 

2  10  Bing.  99 ;  8.  c.  2  Law  J.  Rep.  (n.  s.)  C.  P.  181. 

VOL.    1.  15 


226  TOMKINSON    V.    STAIGHT.  [CHAP.   I. 

statute  has  been  complied  with  or  not,  but  we  think  it  is  the  duty  of 
the  plaintiff  to  fi*ee  the  case  from  all  doubt."    [Cresswell,  J,    In  any 
event  the  defendant  was  to  take  the  goods  as  owner.]     Not  as  owner 
of  goods  then  to  be  paid  for.     [Cresswell,  J.     He  was  to  take  them 
as  owner  ;  and  according  to  one  account  they  were .  to  be  paid  for  in 
cash,  according  to  the  other  by  the  bills  which  had  been  discounted. 
Jervis,  C.  J.     How  does  this  case  differ  from  a  case  where  goods  are 
sold  on  six  months'  credit  ?]     It  is  very  near  that  case,  but  still  that 
acceptance  is  not  of  goods  "  so  sold "  under  the  statute  ;  that  means 
sold  by  the  contract  set  up.    In  Elliott  v.  Thomas  ^  Alderson,  B.,  in  his 
judgment  says:  "What  are  the  ' goods  so  sold  ? ' — the  goods  sold  by 
that  contract,"     [Cresswell,  J.     This  is  an  acceptance  of  the  goods 
"  so  sold."     The  goods  were  delivered  by  the  plaintiffs,  and  they  say 
they  were  delivered  and  were  "  so  sold  "  under  the  contract  alleged ; 
and  the  defendant  says,  I  took  them,  but  they  were  not  "  so  sold."   The 
jury  says  they  were  "  so  sold."     The  defendant  did  not  state  that  he 
did  not  accept  them  on  the  terms  stated  by  the  plaintiffs,  till  the  goods 
were  so  delivered  that  the  plaintiffs  could  not  get  them  again ;  and  he 
intended  to  keej)  them  at  all  events.]    Surely  the  defendant  had  a  right 
to  say,  "I  do  not  accept  the  goods  on  the  contract  you  set  up,  but 
under  another  which  entitles  me  to  them  on  other  terms."    [Crowder, 
J.    In  many  cases  the  acceptance  of  goods  could  afford  no  clew  as  to 
the  contract  upon  which  they  were  accejDted.    Cresswell,  J.    It  seems 
to  me  it  does  not  signify  whether  the  defendant  in  accepting  the  goods 
stated  the  terms  on  which  he  accepted  them  one  moment  after  the 
delivery  or  one  month  after.     The  plaintiffs  have  done  all  they  could 
to  deliver  under  the  true  contract,  and  the  defendant  treats  it  as  a 
delivery  in  fact  because  he  insists  on  keeping  the  piano.    Williams,  J. 
It  seems  remarkable  that  the  statute  should  have  treated  acceptance 
as  a  badge  of  the  truth  of  all  the  terms  of  the  contract,  whereas  it  is 
only  a  badge  of  the  truth  of  the  fact  that  some  contract  existed.]    The 
case  of  Bill  v.  Bament-  is  something  like  the  present.     In  order  to 
make  an  acceptance  under  the  statute  there  must  be  an  intention  of 
both  parties  that  the  acceptance  should  be  on  the  same  terms.     In 
Tempest   v.  Fitzgerald,^  Abbott,  C.  J.,  said :  "  The   Avord   '  accepted ' 
imports  not  merely  that  there  should  be  a  delivery  by  the  seller,  but 
that  each  party  should  do  something  by  which  the  bargain  should  be 
bound."     In  Baldey  v.  Parker,^  Best,  J.,  says :  "  It  was  formerly  con- 
sidered that  a  delivery  of  the  goods  by  the  seller  was  sufficient  to  take 
a  case  out  of  the  17th  section  of  the  Statute  of  Frauds ;  but  it  is  now 
clearly  settled  that  there  must  be  an  acceptance  by  the  buyer  as  well 

1  3  Mee.  &  W.  170;  s.  c.  7  Law  J.  Rep.  (n.  s.)  Exch.  129. 

2  9  Mee.  &  W.  36 ;  s.  c.  11  Law  J.  Eep.  (n.  s.)  Exch.  81. 

3  3  B.  &  Aid.  680. 

*  2  B.  &  C.  37 ;  8.  0.  1  Law  J.  Rep.  K.  B.  229. 


SECT.    IV.]  TOMKINSON    V.    STAIGHT.  227 

as  a  delivery  by  the  seller.  Tlie  statute  enacts  that  where  the  bargain 
is  for  something  to  the  value  of  £10  it  shall  not  bind  unless  something 
unequivocal  has  been  done  to  shew  that  the  contract  is  complete." 
The  Avords  of  the  statute  shew  that  the  earnest  or  part  payment  which 
are  on  the  same  footing-  as  acceptance  must  be  to  bind  the  bargain. 
So  also  the  acceptance  must  be  under  the  contract  sought  to  be 
enforced. 

Jervis,  C.  J.  My  mind  has  wavered  considerably  during  the  dis- 
cussion of  this  case.  At  one  time  I  was  inclined  to  think  that  there 
had  been  no  acceptance  under  tlie  statute ;  but  after  looking  into  the 
matter,  I  now  think  that  there  was,  and  that  the  rule  ought  therefore 
to  be  discharged.  In  order  to  satisfy  the  statute  on  a  sale  of  goods 
for  £10  or  more,  there  must  be  either  a  writing  or  a  part  payment,  or  a 
delivery  and  acceptance  of  the  goods  "  so  sold."  I  think  those  words 
mean  an  acceptance  of  goods  sold  at  a  price  of  £10  or  more.  In  this 
case  there  is  no  doubt  that  there  was  a  delivery  of  that  which  the 
plaintiffs  say  was  sold  for  more  than  £10  ;  and  there  is  no  doubt  there 
was  an  acceptance,  as  the  defendant  says  that  he  accepted  on  certain 
terms.  It  is  just  as  if  the  defendant  had  said  he  accepted  on  six 
mouths'  credit.  The  terms  of  the  contract  as  to  the  time  when  the 
money  is  to  be  paid  would  then  be  the  question  in  dispute,  there  being 
no  doubt  about  the  acceptance.  The  jury  has  found  the  acceptance 
and  the  terms  set  up  by  the  plaintiffs.  This  case  really  does  not  differ 
from  the  ordinary  case  where  a  man  says  to  another,  "  I  have  sold  you 
goods  for  present  payment ; "  and  the  other  answers,  "  You  sold  them 
on  a  month's  credit,  and  you  have  brought  your  action  too  soon." 
The  fact  that  there  is  no  case  to  be  found  in  the  books  to  support  the 
defendant's  view  affords  a  strong  argument  to  shew  that  it  is  not  in 
accordance  with  the  meaning  of  the  statute.  I  think  in  this  case  the 
defendant  is  precluded  by  the  finding  of  the  jury,  and  that  therefore 
the  rule  ought  to  be  discharged. 

Cresswell,  J.  I  am  of  the  same  opinion.  After  the  finding  of  the 
jury  we  must  take  it  that  the  contract  was  for  the  sale  and  delivery  of 
the  goods  on  the  defendant's  premises  for  the  purpose  of  making  him 
the  owner.  He  was  told  of  the  delivery,  and  assented  in  such  a  man- 
ner as  to  make  him  owner,  and  he  insists  on  keeping  the  goods  as 
owner ;  and  he  cannot  say  that  he  did  not  accept  them  on  the  true 
terms  of  the  bargain.  He  disputed  the  terms  on  which  he  became 
owner,  which  he  was  at  liberty  to  do;  but  the  jury  have  found  against 
him  on  that  question,  and  he  is  bound  by  their  finding. 

Williams,  J.  I  am  of  the  same  opinion. .  I  think  there  is  no  doubt 
there  was  a  delivery  and  acceptance  under  the  Statute  of  Frauds.  No 
doubt  the  acceptance  was  accompanied  by  a  denial  by  the  defendant 
of  one  of  the  terms  necessary  to  support  this  action,  and  for  some  time 


228  MARVIN  V.  WALLIS.  [CHAP.   I. 

I  felt  great  difficulty  in  saying  that  any  proof  could  be  oifered  in  lieu 
of  writing  which  amounted,  instead  of  a  corroboration  of  the  contract, 
to  a  denial  of  it.  But  upon  the  whole  I  am  of  opinion  that  nothing 
was  intended  in  the  statute  except  that  the  defendant  should  have 
accepted  in  the  quality  of  vendee.  The  Legislature  has  thought  that 
where  there  is  a  fact  so  consistent  with  the  alleged  contract  of  sale  as 
acceptance,  it  would  be  quite  safe  to  dispense  with  the  necessity  of  a 
writing.  The  statute  does  not  mean  that  the  thing  which  is  to  dispense 
with  the  writing  is  to  take  the  place  of  all  the  tenns  of  the  contract, 
but  that  the  acceptance  is  to  establish  the  broad  fact  of  the  relation  of 
vendor  and  vendee.  Here  the  relation  of  vendor  and  vendee  was 
established,  and  that  was  sufficient  to  satisfy  the  statute. 

Crowder,  J.  I  am  of  the  same  opinion.  I  think  there  was  an 
acceptance  within  the  Statute  of  Frauds.  The  jury  having  found  the 
acceptance,  there  is  no  doubt  there  was  a  delivery  and  acceptance,  and 
that  enables  the  plaintiffs  to  lay  before  the  jury  evidence  of  the  terms 
of  the  contract.  It  seems  to  me  that  all  that  was  necessary  under  the 
statute  was,  that  there  should  have  been  a  contract  of  sale,  and  that 
under  that  contract  the  vendee  should  have  accepted ;  it  being  a  ques- 
tion for  the  jury  on  the  parol  evidence,  what  were  the  precise  nature 
and  terms  of  the  contract.  Mule  discharged. 


MARVIN  V.  WALLIS, 

In  the  Queen's  Bench,  June  5,  1856. 

[Reported  in  6  Ellis  Sp  Blackburn,  726.] 

Action  for  money  payable  by  defendant  to  plaintiff  for  horses, 
mares,  and  geldings,  bargained  and  sold,  and  sold  and  delivered  by 
plaintiff  to  defendant ;  and  on  accounts  stated.  Plea,  never  indebted. 
Issue  thereon. 

On  the  trial  before  Lord  Campbell,  C.  J.,  at  the  last  Warwickshire 
assizes,  it  appeared  that  the  action  was  brought  to  recover  the  price  of 
a  horse.  It  was  agreed  that  there  had  been  a  complete  verbal  bargain 
for  the  sale  of  the  horse  by  the  plaintiff  to  the  defendant  for  a  price 
above  £10,  and  that  about  a  fortnight  afterwards  the  plaintiff  sent  the 
horse  to  the  defendant,  who  refused  to  take  or  pay  for  him ;  alleging 
that  the  horse  had  been  ill-used  in  the  interval.  The  plaintiff's  evi- 
dence was  that  the  bargain  was  comiDlete  for  immediate  deliveiy ;  that 


SECT.    IV.]  MARVIN   V.   WALLIS.  229 

after  it  was  complete  the  ))laintift'  asked  the  defendant  to  lend  him  the 
horse  for  a  few  weeks  till  lie  got  another,  to  M'hich  the  defendant  agreed 
if  the  plaintiff  would  take  care  of  it ;  and  that  in  consequence  the 
plaintiif  kept  the  horse  from  that  time,  not  as  vendor  but  as  borrower 
of  the  horse.  There  Avas  no  ])art  payment,  nor  any  memorandum  in 
writing.  It  was  ol)jected  that  tliere  was  no  evidence  to  go  to  tlie  jury 
of  any  acceptance  and  actual  receij)t  of  the  horse.  The  Lord  Chief 
Justice  refused  to  stop  the  case.  The  defendant  then  gave  evidence, 
accordinfr  to  which  the  original  verbal  bargain  was  that  the  horse 
should  not  be  delivered  for  a  month ;  and  the  plaintiff  retained  posses- 
sion, not  as  a  borrower,  but  in  virtue  of  the  original  bargain.  The 
Lord  Chief  Justice  left  the  question  to  the  jury,  whether  the  veibal 
contract  for  the  sale  of  the  horse  was  complete  before  there  was  any 
agreement  about  the  horse  being  retained  by  the  plaintiff,  and  the 
horse  Avas  lent  to  the  plaintiff  by  the  defendant  as  his  owner;  or 
whether  the  retainer  of  the  horse  Avas  part  of  the  bargain.  The  jury 
found  that  the  contract  was  complete  before  the  permission  to  keep  the 
horse  Avas  given  to  the  plaintiff,  and  that  the  horse  Avas  lent  by  the 
defendant  as  his  OAvner. 

The  Lord  Chief  Justice  then  directed  a  verdict  for  the  plaintiff,  AA'ith 
leave  to  move  as  after  mentioned. 

Mellor  in  last  term  obtained  a  rule  to  shew  cause  why  a  verdict 
should  not  be  entered  for  the  defendant,  or  a  nonsuit  "  on  the  ground 
that  there  Avas  no  evidence  of  sufficient  acceptance  of  the  horse  in 
question  within  the  17th  section  of  29  Car.  2,  c.  3." 

Hayes,  Serjt.,  an(\.£Utleston,  on  an  earlier  day  in  this  term  shcAved 
cause.^  The  finding  of  the  jury  is  that,  after  the  completion  of  the 
contract  of  sale  (Avhen  the  pMintiff  was  in  possession  as  unpaid  vendor, 
and  the  defendant  oAvner  of  the  horse  subject  to  the  vendor's  lien,  and 
entitled  on  paying  the  price  to  an  immediate  delivery),  there  Avas  an 
agreement  between  the  tAvo  that  the  horse  should  thenceforth  be  kept 
by  the  plaintiff,  not  as  unpaid  vendor,  but  as  gratuitous  bailee  of  the 
horse ;  the  defendant  assenting  to  this  as  OAvner  of  the  horse,  on  the 
condition  that  the  plaintiff  should  take  care  of  it.  This  responsibility 
■would  have  arisen  front  the  mere  lendhig,  though  not  expressed ;  but 
the  expression  is  important  evidence,  justifying  the  jury  in  finding  that 
the  defendant  meant  to  lend  it  as  owner.  Now  if  the  defendant  had 
taken  manual  possession  of  the  horse  for  one  second,  and  led  him  by 
the  bridle  for  one  yard,  and  then  given  him  back  to  the  plaintiff  to 
keep  on  those  terms,  it  Avould  not  be  disputable  that  there  was  a  com- 
plete delivery,  acceptance,  and  receipt,  changing  the  character  of  the 
plaintiff's  possession  and  altering  the  nature  of  his  responsibility.  But 
Avlien  tAvo  parties  having  the  present  power  to  make  a  delivery  of 
goods  agree  to  consider  it  as  made,  it  has  in  laAV  the  same  eflect  as  if 
»  June  4th.    Before  Lord  Campbell,  C.  J.,  Coleridge  and  Erie,  JJ. 


230  MARVIN   V.   WALLIS.  [CHAP.    I. 

tlie  goods  were  taken  up  and  laid  down  again.     It  is  like  settlement  in 
account  of  two  debts,  both  of  which  are  in  law  considered  paid,  though 
the  parties  have  not  gone  through  the  foi-m  of  handing  the  money 
across  and  receiving  it  back.^     If  the  holder  of  the  goods  agrees  to 
change  the  nature  of  his  possession,  it  is  the  same  thing  as  if  he  had 
made  a  corporeal  delivery  to  a  third  person  agreeing  to  hold  on  those 
terms.     Elmore  v.  Stone  ^  proceeds  on  this  principle.     In  Blenkinsop  v. 
Clayton  ^  the  horse  remained  in  the  vendor's  possession ;  but  there  were 
facts  tending  to  shew  that  the  purchaser  had  treated  it  as  his  own,  and 
the  decision  was  that  these  facts  were  evidence  to  go  to  the  jury  of  a 
delivery.   In  Tempest  v.  Fitzgerald*  and  Carter  v.  Toussaint^  the  court 
held  that  there  was  in  those  cases  no  evidence  that  the  vendor  had 
agreed  to  alter  the  nature  of  his  possession;  but  in  both  the  court 
recognized  the  principle  laid  down  in  Elmore  v.  Stone  and  Blenkinsop 
V.  Clayton,  that,  if  the  nature  of  the  possession  had  been  changed,  it 
would  be  sufficient.     In  Holmes  v.  Hoskins,^  Parke,  B.,  recognizes  the 
principle  of  Elmore  v.  Stone,  whilst  distinguishing  it  from  the  case 
before  him.     He  says  :  "  In  order  to  satisfy  the  statute,  there  must  be 
an  acceptance  and  an  actual  or  constructive  delivery.     Now  in  this 
case  there  was  no  actual  delivery ;  and  therefore,  to  entitle  the  plaintiff 
to  recover,  there  must  be  such  a  dealing  with  the  cattle  by  the  defend- 
ant as  owner  that  the  plaintiff  would  lose  his  lien.    But  it  is  clear  that 
the  plaintiff  never  meant  to  part  with  the  cattle  until  the  price  was 
paid."      "My  brother  Kinglake  relied  on  Elmore  v.  Stone,  but  that 
case  is  very  different  from  the  present ;  for  there,  when  the  vendor 
assented  to  the  purchaser's  request,  there  was  an  iict  of  acceptance  by 
which  the  former  lost  his  lien."     In  the  present  case,  on  the  finding  of 
the  jury,  the  vendor  had  given  up  his  lieh ;  he  had  completely  agreed 
to  hold  the  horse  in  a  new  capacity.      The  question  upon  this  evidence 
was  for  the  jury.     Parker  v.  Wallis.'' 

Mellor  and  Field  were  now  heard  in  support  of  the  rule.  There 
has  been  no  change  of  possession  equivalent  to  delivery  of  the  horse. 
[Lord  Campbell,  C.  J.  Your  difficulty  arises  from  the  finding  of  the 
jury.]  Where  reliance  is  placed  upon  an  act,  as  intended  by  the  parties 
to  be  equivalent  to  delivery,  the  transaction  must  be  at  least  unam- 
biguous :  it  is  incorrect  to  treat  the  question  as  one  of  an  act  o^  OAvner- 
ship.  In  Blenkinsop  v.  Clayton  it  was  held  to  be  a  question  for  the 
jury  whether  the  act  relied  upon  (an  offer  by  the  vendee  to  sell  the 
goods  as  his  own)  was  evidence  of  a  delivery  to  him ;  and  that  case 
no  doubt  is  to  a  certain  extent  in  favor  of  the  plaintiff.  But  the  other 
cases  cited  are  distinguishable.  In  Elmore  v.  Stone  the  vendor 
removed  the  horses  from  the  sale  stable  into  another,  upon  the  request 

1  See  Livingstone  v.  Whiting,  15  Q.  B.  722.  2  i  Taunt.  458. 

3  7  Taunt.  597.  4  3  B.  &  Aid.  680.  5  5  B.  &  Aid.  855. 

6  9  Exch.  753.  7  5  E.  &  B.  21. 


SECT.    IV.]  MARVIN   V.    WALLI3.  231 

of  the  vendee  that  the  vendor,  who  was  a  livery-stable  keeper,  would 
keep  tlie  horses  at  livery  for  him :  that  was  an  unequivocal  delivery,  as 
much  as  if  the  horses  had  been  sent  to  the  livery-stable  of  a  third 
party.     The  marginal  note  in  Tempest  v.  Fitzgerald  ^  does  not  quite 
accurately  represent  the  facts  of  the  case.   The  vendee  had  ridden  upon 
the  horse  sold  ;  and  the  jury  were  told  to  find  for  the  plaintiff  if  they 
thought  that  such  riding  was  an  exercise  of  ownership,  and  not  merely 
by  way  of  trial ;  and  they  found  for  the  plaintiff.     The  court  never- 
theless ordered  a  new  trial ;  and  they  pointed  out  that  the  bargain  was 
for  ready  money,  so  that  the  vendee  had  no  right  to  the  possession  of 
the  horse  until  he  had  paid  for  it,  which  he  had  not  done ;  whereas  in 
Blenkinsop  v.  Clayton  -  the  contract  was  not  for  ready  money,  but  the 
horse  was  to  be  delivered  within  an  hour,  before  the  expiration  of  which 
time  the  act  in  question  took  place.   Here  the  plaintiff  had  not  paid  for 
the  horse,  which  brings  the  case  within  Tempest  v.  Fitzgerald :  the 
horse  could  not  be  said  to  have  been  delivered,  because  the  vendor  had 
done  nothing  to  give  up  his  lien ;  and  this  meets  the  argument  sug- 
gested here  from  the  finding  of  the  jury.     In  Howe  v.  Palmer  ^  twelve 
bushels  out  of  a  quantity  of  tares  were  sold,  to  remain  in  the  pos- 
session of  the  vendor  till  called  for ;  and  the  vendor  afterwards  meas- 
ured out  the  twelve  bushels,  giving  orders  to  set  them  apart,  and  to 
deliver  them  to  the  defendant  when  he  should  call  for  them ;  and  it 
was  held  that  this  was  no  acceptance.     There  Bayley,  J.,  said  :*  "In 
Elmore  v.  Stone  the  buyer  directed  expense  to  be  incurred ;  and  the 
directing  of  that  expense  was  considered  evidence  of  an  acceptance  on 
his  part.     That  case  goes  as  far  as  any  case  ought  to  go,  and  I  think 
we  ought  not  to  go  one  step  beyond  it.     There  is  this  distinction 
between  that  case  and  this,  that  there  an  expense  was  incurred  on 
account  and  by  the  direction  of  the  buyer :  here  there  is  none.    But  I 
must  say,  however,  that  I  doubt  the  authority  of  that  decision."  [Lord 
Campbell,  C.  J.     A  delivery  to  the  vendee's  agent  would  do,  you 
admit :  may  not  the  vendor  be  such  agent  ?]     That  would  be  an  eva- 
sion of  the  letter  and  intent  of  the  statute.    In  Carter  v.  Toussaint  ^  no 
time  was  fixed  for  the  payment  of  the  price  of  the  horse :  it  was  to 
remain  with  the  vendor  for  twenty  days  without  any  charge  to  the 
vendee,  at  the  expiration  of  which  time  it  was  in  fact,  by  the  direction 
of  the  vendee,  sent  to  grass  and  entered  as  the  vendee's  horse.   Tliis  was 
held  not  to  be  an  acceptance  within  the  statute  ;  Bayley,  J.,  saying, 
"  There  can  be  no  acceptance  or  actual  receipt  by  the  buyer,  unless 
there  be  a  change  of  possession ;  and  unless  the  seller  divests  himself  of 
the  possession  of  the  goods,  though  but  for  a  moment,  the  property 
remains  in  him."     [Erle,  J.    Do  you  say  that  there  must  be  a  manual 

1  3  B.  &  Aid.  680.  2  7  Taunt.  597.  3  3  B.  &  Aid.  321. 

<  3  B.  &  Aid.  324.  »  6  B.  &  Aid.  855. 


232  MAEVIN   V.   WALLIS.  [CHAP.   I. 

receipt?  Take  the  case  of  bales  of  cotton  lying  in  a  warehouse.] 
There  is  a  difference  between  evidence  of  a  delivery  and  evidence  of 
an  acceptance :  no  act  of  the  vendor  can  amount  to  an  acceptance  by 
the  vendee.  In  Beaumont  v.  Brengeri,^  where  it  was  held  that  there 
was  an  acceptance,  the  judges  clearly  relied  not  on  the  fact  of  the  car- 
riage being  removed  to  a  different  j^art  of  the  warehouse,  but  upon  the 
vendee  having  taken,  it  out  for  a  ride.  In  Holmes  v.  Hoskins  -  the  ven- 
dee felt  in  his  pocket  for  his  cheque-book,  in  order  to  pay  for  the  cattle 
sold,  but  finding  that  he  had  not  got  it  told  the  vendor  to  come  in  the 
evening  for  the  money;  but  the  cattle  never  were  paid  for;  and  it  was 
agreed  that  the  cattle  should  remain  in  the  vendor's  field  for  a  few 
days  and  that  the  vendee  should  feed  them  with  the  vendor's  hay, 
which  was  done.  It  was  held  that  there  was  no  evidence  to  go  to  the 
jury  of  an  acceptance  to  satisfy  the  statute.  [Lord  Campbell,  C.  J. 
There  the  vendor  clearly  intended  to  keep  his  lien.]  This  case  illus- 
trates the  danger  of  allowing  supposed  equivalents  to  the  conditions 
prescribed  by  the  statute  :  the  evidence  rested  on  the  terms  of  a  con- 
versation which  were  in  dispute,  the  very  evil  which  the  statute  was 
intended  to  meet.  [Erle,  J.  Proof  of  part  payment  Avould  be  liable 
to  the  same  objection :  the  vendee  might  say,  I  meant  only  to  lend  you 
the  money.]  In  such  a  case  there  is  at  any  rate  the  substantive  fact 
of  the  handing  over  the  money. 

Coleridge,  J.  I  am  of  opinion  that  we  ought  to  discharge  this  rule. 
The  question  is,  whether  on  the  facts  found  by  the  jury  the  Statute  of 
Frauds  is  satisfied,  and  whether  there  is  any  evidence  for  that  finding. 
The  Statute  of  Frauds  requires  an  actual  receipt,  which  implies  delivery, 
and  acceptance.  It  is  admitted  that  if  there  be  an  actual  visible  pos- 
session in  the  vendee  for  a  single  moment,  that  is  enough :  the  question 
cannot  turn  on  time.  It  must  also  be  admitted  that  it  is  enough  if  a 
third  party  has  such  possession  for  the  vendee.  It  is  said  that  nothing 
short  of  that  will  do ;  and  as  I  understand  Mr.  Field  he  contends 
that  there  must  be  some  positive  act,  and  that  without  that  words 
alone  will  not  satisfy  the  statute.  Here  it  is  found  that  the  bargain 
was  complete,  and  that  after  that  the  vendor  asked  the  vendee  to  lend 
him  the  horse  for  a  specific  purpose,  to  which  the  vendee  assented. 
The  vendor  retains  the  apparent  possession,  but  holds  for  the  vendee, 
unless  there  be  a  distinction  between  this  state  of  things  and  what  is 
admitted  to  be  sufiicient  to  satisfy  the  Statute  of  Frauds.  Try  then 
how  that  is.  Must  there  be  an  actual  transfer  ?  The  case  of  Elmore 
V.  Stone  ^  furnishes  an  answer  to  that  question  ;  for  there,  there  was  a 
removal  of  the  horse  from  one  stable  of  the  vendor  to  another  stable  of 
the  vendor ;  in  the  first  of  these  the  vendor  kept  his  own  horses,  in 
the  other  the  horses  belonging  to  other  people :  so  that  the  horse  still 
1  5  Com.  B.  301.  "''  9  Exch.  753.  »  1  Taunt.  458. 


SECT.    IV.]  MARVIN   V.    WALLI9.  233 

continued  in  his  apparent  possession,  but  the  character  of  the  possession 
Avas  altered.  So  here  there  is  the  same  apparent  possession  througliout, 
but  the  evidence  shews  that  its  character  was  clianfjed.  Much  has 
been  said  as  to  whether  the  lien  here  was  retained  or  not:  but  it  seems 
to  me  that  this  is  not  material  to  the  anjument,  and  that  the  lecr-'^l 
result  arises  from  the  preceding  part  of  the  transaction.  Had  the 
plaintiif  retained  the  horse  in  the  character  of  an  unpaid  vendor,  there 
would  not  have  been  a  delivery  ;  but  the  verdict  negatives  that  suppo- 
sition. 

Erle,  J.  I  also  am  of  opinion  that  the  rule  should  be  discharged. 
The  question  is,  Avhetherthe  buyer  has  accepted  the  horse,  and  actually 
received  it.  All  that  passed  has  been  merely  by  word  of  mouth:  there 
has  been  nothing  Avhich,  according  to  the  language  of  many  cases, 
amounts  to  manual  delivery.  The  statute  for  many  years  was  very 
much  praised.  I  believe  that  the  party  who  inserted  the  words  had 
no  idea  what  he  meant  by  "  acceptance : "  that  opinion  I  found  on  the 
everlasting  discussion  which  has  gone  on,  as  if  possession  according  to 
law  could  mean  only  manual  prehension.  It  may  mean  that  or  it 
may  me;;n  a  handing  over  to  a  servant ;  but  the  question  is,  whether 
there  has  been  an  exercise  of  the  right  inconsistent  with  any  su])posi- 
tion  but  that  of  ownership ;  whether  there  is  an  actual  sale,  and  an  act 
Avhich  is  inconsistent  with  anything  but  ownership.  When  you  apply 
that  here,  you  have  the  finding  of  the  jury  that  there  was  an  actual 
sale,  and  that  the  purchaser  assumed  to  be  in  actual  possession.  He 
permitted  the  other  party  to  retain  the  horse.  All  indeed  passed  by 
word  of  mouth;  but  to  my  mind  it  is  a  most  decisive  case  of  possession, 
and  one  in  which  the  vendor  had  lost  his  claim  to  lien. 

Ciio.MPTOx,  J.  I  was  not  present  during  the  whole  of  the  argument ; 
but  so  far  as  I  can  judge  from  what  I  have  heard,  I  am  of  opinion  that 
the  rule  should  be  discharged.  There  is  no  question  as  to  the  identity : 
there  is  a  sale  of  the  horse,  and  then  what  amounted  to  a  loan  by  the 
vendee  ;  and  under  that  loan  the  vendor  kept  possession  of  the  horse. 
That  is  a  possession  by  the  vendee.  The  case  is  analogous  to  that  of 
goods  warehoused.  I  go  to  the  warehouseman  with  the  seller,  and  say 
to  him,  "You  now  hold  these  goods  for  me:"  the  warehouseman  then 
becomes  the  bailee  of  the  purchaser,  and  the  possession  of  the  ware- 
houseman becomes  that  of  the  purchaser.  Mr.  Mellor  says,  and  he  would 
succeed  if  he  could  make  out  his  proposition,  that  in  no  case  can  the 
vendor  for  this  purpose  be  the  agent  for  the  vendee  ;  but  that  I  think 
is  not  law.  Elmore  v.  Stone  ^  shews  that :  in  the  one  case  we  have  a 
bailment  of  a  description  different  from  the  original  possession  ;  here 
we  have  a  loan ;  but  in  each  case  the  possession  of  the  bailee  is  the 
possession  of  the  bailor.   It  Avould  be  dangerous  to  distinguish  between 

1  1  Taunt.  458. 


234  TAYLOR   V.    WAKEFIELD.  [CHAP.    I. 

such  cases.  In  Carter  v.  Toussaint  ^  the  court  distinguished  the  case 
on  the  ground  that  the  plaintiif's  character  as  owner  remained 
unchanged ;  and  that  is  the  question  of  fact  here  :  did  the  vendor  hold 
the  horse  as  agent  of  the  vendee  ?  I  think  it  is  clear  that  he  did, 
unless  we  are  to  say  that  no  verbal  arrangement  can  create  that  state 
of  things.  At  one  time  it  used  to  be  thought  that  no  verbal  evidence 
could  be  let  in  to  shew  the  fact  of  payment ;  but  that  is  clearly  not  the 
law,  nor  is  there  any  such  law  in  the  case  of  acceptance.  I  think  the 
verdict  was  riofht. 

Lord  Campbell,  C.  J.  I  agree  with  the  rest  of  the  court.  While 
the  Statute  of  Frauds  remains,  we  are  bound  to  give  effect  to  it  and 
shall  do  so  ;  but  we  are  doing  so  here.  There  has  been  an  acceptance 
and  a  receipt  of  the  chattel  on  the  finding  of  the  jury,  which  is  quite 
justified  by  the  evidence.  The  vendor  became  bailee  of  the  horse, 
and  held  by  authority  of  the  vendee.  The  case  is  therefore  within  the 
exception  of  §  17.  I  must  say  that,  giving  as  I  do  full  effect  to  the 
statute  while  it  remains,  I  shall  rejoice  when  it  is  gone.  In  my  opin- 
ion it  does  much  more  harm  than  good.  It  promotes  fraud  rather 
than  prevents  it,  and  introduces  distinctions  which  I  must  confess  are 
not  productive  of  justice.  Hide  discharged.^ 


TAYLOR  V.  WAI^FIELD  and  Another. 
In  the  Queen's  Bench,  June  9  and  10,  1856. 

[Reported  in  6  Ellis  Sf  Blackburn,  765.] 

Tbovee  for  machinery,  with  a  count  for  an  assault.     Plea  to  the 
whole,  payment  into  court  of  £10.     Replication,  that  the  sum  was  not . 
enough. 

On  the  trial  before  Willes,  J.,  at  the  last  Liverpool  spring  assizes,  it 
appeared  that  the  defendants  were  mortgagees  in  possession  of  three 
mills,  one  of  which  was  a  linting  mill,  and  of  the  machinery  in  them 
which  did  not  consist  of  fixtures.  A  negotiation  took  place  between 
plaintiff  and  defendants  for  the  purchase  of  the  mills  and  machinery ; 
and  he  was  let  into  possession  of  all  three  under  a  written  agreement 
by  which  he  became  tenant  to  the  defendants  from  week  to  week  of 
the  three  mills  and  machinery,  terminable  on  tAventy-one  days'  notice, 
with  an  option  to  the  plaintiff  to  become  purchaser  of  the  whole 
machinery  in  all  three  mills  for  £813,  being  the  sum  at  which  the 

1  5  B.  &  Aid.  855. 

2  See  Phillips  v.  Hunnewell,  4  Greenl.  370,  contra.  —  Ed. 


SECT.    IV.]  TAYLOR   V.    WAKEFIELD.  235 

whole  was  valued.  After  this  there  were  verbal  nefrotiations,  as  to 
which  there  was  contradictory  testimony.  Tlie  plaintiff's  evidence 
Avas,  that  it  was  finally  agreed  by  word  of  mouth  that  he  should  have 
the  option,  at  the  tennination  of  the  tenancy,  of  taking  the  linting 
machinery  only  on  payment  of  £272  17s.  3(^.,  but  that  it  was  not  to  be 
removed  until  paid  for.  The  defendants'  case  was,  that  they  never 
agreed  to  divide  the  sale,  and  that  the  plaintiff  was  to  take  and  j)ay  for 
all  the  machinery  or  none.  The  tenancy  was  subsequently  determined 
by  notice  to  quit.  On  the  day  on  which  the  tenancy  terminated 
£272  17s.  Sd.  was  tendered  on  behalf  of  the  plaintiff  as  the  price  of  the 
linting  machinery,  and  refused  by  the  defendants  who  did  not  acknowl- 
edge the  bargain.  Subsequently  on  the  same  day  the  plaintiff,  who 
was  still  in  occupation  of  the  mills  and  machinery,  proceeded  to  carry 
away  the  linting  machinery :  the  defendants  forcibly  prevented  it.  A 
scuffle  ensued,  during  which  the  assault  took  place.  The  defendants' 
counsel  contended  that  the  damages  were  to  be  estimated  on  the  sup- 
position that  the  plaintiff  had  no  interest  in  the  goods;  for  even  if  the 
parol  contract  was  as  stated  by  the  plaintiff,  it  was  a  contract  for  the 
sale  of  goods  for  more  than  £10,  and  there  was  no  evidence  of  any 
thing  to  bind  the  contract.  The  learned  judge  ruled  that  there  was 
evidence  of  an  acceptance  and  actual  I'eceipt.  He  left  the  question  to 
the  jury  whether  the  parol  contract  was  as  stated  by  the  plaintiff,  and 
whether  there  was  an  acceptance  by  him  of  the  goods ;  telling  them  that, 
if  so,  the  property  in  the  linting  machinery  had  vested  in  the  plaintiff 
before  the  conversion.     Verdict  for  the  plaintiff,  damages  £50. 

Manisty  in  last  Easter  term  obtained  a  rule  nisi  for  a  new  trial  on 
the  ground  of  misdirection,  in  this  that  there  was  no  evidence  of  an 
acceptance. 

Watso7i,  Hugh  Hill,  and  (7.  Millward  now  shewed  cause.^  There 
was  evidence,  which  must  at  this  stage  of  the  cause  be  taken  to  be  true, 
of  a  parol  contract  by  which  the  defendants  sold  the  machinery  in 
question  to  the  plaintiff.  At  the  time  of  this  parol  contract  the  goods 
were  already  in  the  possession  of  the  plaintiff  as  tenant  to  the 
defendants,  and  that  being  so  there  could  be  no  further  physical 
delivery :  there  might  however  be  a  change  in  the  nature  of  the 
holding  of  the  plaintiff;  and  as  soon  as  that  change  took  place  and  he 
ceased  to  hold  as  tenant  and  came  to  hold  as  vendee,  there  was  an 
acceptance  and  receipt  sufficient  to  bind  the  contract.  Edan  v.  Dud- 
field,-  Marvin  v.  Wallis,''^  and  the  principle  recognized  in  the  judgment 
in  Lillywhite  v.  Devereux.*  [Ekle,  J.  There  are  authorities  that,  if 
the  parties  were  reversed,  the  defendants  might  adopt  the  act  of  the 
plaintifi"  as  an  acceptance  binding  the  contract  against  him.     But  i3 

1  Before  Lord  Campbell,  C.  J.,  Coleridge,  Erie,  and  Crompton,  JJ.    Tiie  argument 
was  resumed  and  completed  before  the  same  judges  on  Tuesday,  June  10. 
'i  1  Q.  B.  302.  3  G  Ellis  &  Bl.  726.  *  16  M.  &  W.  285 


236  TAYLOR   V.    WAKEFIELD.  [CHAP.   I. 

there  any  case  in  which  the  bailee  taking  to  the  goods  has  been  held 
to  bind  the  bargain  in  his  own  favor  ?]  The  acceptance  and  receipt 
which  bind  the  bargain  as  against  either  bind  it  against  both :  there 
may  be  more  difficulty  in  proof;  but  here  the  question  is  whether  there 
was  evidence. 

Manisty^  in  support  of  the  rule.  It  is  to  be  taken  for  the  present 
that  the  plaintiff's  account  of  the  verbal  contract  is  the  accurate  one, 
and  that  the  defendants  bargained  with  him  that  on  paying  the  price 
he  might  take  as  owner  the  goods  already  in  his  possession  as  tenant, 
but  not  until  payment.  And  it  may  be  conceded  that  in  cases  where 
a  bailor  sells  goods  to  a  bailee  by  parol,  if  whilst  that  parol  bargain  is 
unrevoked  the  bailee  in  pursuance  of  it  takes  to  the  goods  as  his  own, 
it  would  be  an  acceptance  not  only  binding  the  contract  as  against 
himself,  but  also  being  an  acceptance  by  the  authority  given  by  the 
vendor  in  the  parol  bargain  it  will  bind  the  vendor.  But  in  this  case 
there  was  no  pretence  that  the  plaintiff  had  any  authority  to  take  the 
goods  until  the  price  was  paid ;  nor  did  he  attempt  to  take  to  them 
till  after  he  had  tendered  the  pi-ice.  It  was  then  too  late ;  for  the 
defendants  by  refusing  the  price  had  in  an  unequivocal  manner  repu- 
diated the  parol  contract  (which  was  then  still  not  binding),  and  so 
revoked  any  authority  to  accept  the  goods. 

Lord  Campbell,  C.  J.  I  should  have  been  strongly  inclined  to  say 
that,  if  the  nature  of  the  plaintiff's  possession  had  been  changed  by 
him  by  virtue  of  the  authority  given  in  the  parol  contract,  it  would 
have  been  an  acceptance  binding  the  contract  as  against  the  defendants. 
But  when  it  appears  that  the  parol  authority  was  revoked  before  it  was 
acted  upon,  it  is  clear  that  cannot  be.  Now  in  this  case  it  was  an 
uncontested  fact  that  the  defendants  refused  to  accept  the  price,  and 
disaffirmed  the  contract  Avhilst  it  was  yet  unbound  and  the  authority 
revocable.  That  being  so,  there  was  no  evidence  of  any  acceptance  ; 
and  the  rule  for  a  new  trial  must  be  absolute. 

CoLEELDGE,  J.  What  is  relied  on  here  as  binding  the  contract  is 
an  act  of  the  buyer,  who  was  already  in  possession  of  the  goods,  chang- 
ing; the  character  in  which  he  held  them.  But  till  that  act  was  done, 
there  was  no  binding  contract,  and  it  was  in  the  power  of  either  to  be 
off  the  bargain.  Now  when  the  very  act  relied  on  came  to  be  done, 
the  vendors  refused  the  money  and  disaffirmed  the  contract. 

Erle,  J.  Whenever  goods  are  in  the  hands  of  a  person  as  lessee  or 
bailee,  with  a  parol  contract  for  the  purchase  of  those  goods  which  is 
not  binding,  if  the  purchaser  takes  to  the  goods  as  such  and  changes 
the  character  in  which  he  holds  them,  it  is  an  acceptance  as  against  him ; 
and  it  is  clear  that  the  vendor  may,  if  he  has  done  nothing  to  preclude 
himself,  adopt  that  acceptance  and  hold  the  contract  bound.  And  it 
may  be,  though  it  has  not  I  believe  been  yet  decided,  that  such  an  act, 
if  done  by  the  purchaser  in  furtherance  of  the  contract  before  it  is 


SECT.    IV.]  GARDNER    V.    GROUT.  237 

revoked,  would  bind  the  contract  as  against  the  vendor  also.  I  am 
inclined  to  think  that  it  would  be  an  acceptance  by  the  vendor's 
authority  already  given  in  the  contract,  if  acted  upon  before  it  was 
revoked.  But  if  before  that  parol  authority  is  acted  upon  it  is  revoked, 
and  the  vendor  declares  that  there  is  no  binding  bargain,  the  subse- 
quent taking  to  the  goods  by  the  buyer  is  unauthorized  and  tortious, 
and  cannot  be  an  acceptance,  which  to  bind  the  bargain  must  at  all 
events  be  Avith  the  assent  of  the  vendor.  Here  before  the  act  relied 
on  the  vendors  said  the  bargain  was  not  binding. 

Cromptox,  J.  I  think  the  counsel  on  both  sides  state  the  law  accu- 
rately. When  goods  are  sold  by  parol  and  nothing  remains  to  be  done 
before  the  delivery,  if  the  goods  are  already  in  the  hands  of  the  ven- 
dee, he  may  take  to  them  under  the  contract,  and  it  is  an  acceptance 
and  receipt  by  the  authority  of  both  parties.  It  is  the  only  way  in 
such  cases  as  Edan  v.  Dudfield  ^  and  Marvin  v.  Wallis  -  in  which  there 
can  be  a  delivery.  The  contract  is  binding  as  soon  as  the  bailee 
changes  his  character  and  holds  as  OAvner.  But  then  it  appears  on  the 
facts  here  that  by  the  contract  there  was  to  be  no  delivery  till  the  price 
was  paid ;  and  it  appears  that  when  the  price  Avas  tendered,  before  any 
possession  as  owner  was  or  under  the  contract  coiild  be  taken,  the  ven- 
dors refused  the  money  and  declared  the  contract  not  binding.  If  we 
held  that  it  was  sufficient  to  tender  the  money  and  take  possession 
afterwards,  it  would  be  in  eftect  holding  that  the  contract  was  binding 
before  the  possession  Avas  taken  ;  for  unless  it  was,  the  subsequent  tak- 
ing of  possession  was  tortious ;  and  it  is  admitted  on  all  hands  that  a 
tortious  taking  possession  cannot  make  the  contract  binding. 

Hide  absolute. 


GARDNER  v.  GR0U1. 
In  the  Common  Pleas,  May  5,  1857. 

[Reported  in  2  Common  Bench  Reports,  New  Series,  340.] 

This  was  an  action  for  the  breach  of  a  contract  to  deliver  24^  tons  of 
sacks  and  bags,  Av^hich  the  defendant  had  agreed  to  sell  to  the  plain- 
tifl"  at  the  pi-ice  of  £11  i)er  ton. 

At  the  trial  before  Williams,  J.,  at  the  first  sitting  in  London  in  the 
present  term,  a  contract  by  word  of  mouth  was  proved  in  the  terms 
allesed  in  the  declaration ;  but  there  Avas  no  contract  in  Avriting,  nor 
any  part  payment.     The  plaintiff  hoAvever  relied,  for  the  purpose  of 

1  1  Q.  B.  302.  2  6  Ellis  &  Bl.  726. 


238  GARDNER   V.   GROUT.  [CHAP.   I. 

taking  the  case  out  of  the  Statute  of  Frauds,  upon  a  part  delivery  and 
acceptance,  as  to  which  the  evidence  was  as  follows :  Four  days  after 
the  sale  the  plaintiff  went  to  the  defendant's  warehouse  and  asked  for 
samples  of  the  sacks  and  bags,  which  were  given  to  him  by  the  defend- 
ant's foreman,  and  which  he  promised  to  pay  for  when  the  bulk  (which 
was  all  there  at  the  time)  was  taken  away.  The  samples  so  given  to 
the  plaintiff  were  by  the  defendant's  order  weighed  and  entered. 

On  the  part  of  the  defendant  it  was  submitted  that  the  taking  the 
samples  was  not  such  a  part  acceptance  of  the  thing  sold  as  would  sat- 
isfy the  17th  section  of  the  statute. 

For  the  plaintiff  the  case  of  Hinde  v.  Whitehouse,  7  East,  558,  was 
relied  upon  [stating  it]. 

The  learned  judge  left  it  to  the  jury  to  say  whether  the  samples  of 
the  sacks  and  bags  were  delivered  and  accepted  as  part  of  the  bulk. 
The  jury  found  that  they  were,  and  accordingly  a  verdict  was  taken 
for  the  plaintiff  (damages  £40),  leave  being  reserved  to  the  defendant 
to  move  to  enter  the  verdict  the  other  way,  or  a  nonsuit,  if  the  court 
should  be  of  opinion  that  there  was  no  acceptance  of  part  to  take  the 
case  out  of  the  statute. 

Hawkins  noAV  moved  accordingly.  The  acceptance  of  the  samples 
clearly  was  not  an  acceptance  of  part  of  the  things  sold,  so  as  to  take 
the  case  out  of  the  17th  section  of  the  Statute  of  Frauds.  In  Hinde  v. 
Whitehouse  the  samples  were,  according  to  the  practice  of  the  partic- 
ular sales,  to  be  taken  by  the-buyer  as  part  of  the  bulk :  there  was 
however  no  such  evidence  here.  [Cresswell,  J.  The  whole  of  the 
bulk  was  there  ?]  Yes.  [Cresswell,  J.  Suppose  the  parties  were 
reversed,  could  the  buyer  have  insisted  that  he  had  not  accejited  a 
part  of  that  which  he  had  purchased?]  It  is  submitted  that  he  might. 
[CocKBURN,  C.  J.  Generally  speaking,  the  samjjle  is  shewn  separately 
as  a  specimen  of  that  which  the  seller  is  offering  to  dispose  of  But 
here  the  buyer  takes  it  as  a  part  of  something  which  he  has  already 
bought.]  This  question  arose  in  a  case  of  Simonds  v.  Fisher  at  the 
sittings  in  the  Queen's  Bench  after  the  last  term.  There  the  jDlaintiff 
shewed  the  defendant  samples  of  wine  which  the  latter  agreed  to  buy  ; 
and  after  the  bargain  w^as  concluded  the  buyer  asked  to  have  the  sam- 
ples handed  over  to  him,  and  wrote  on  the  labels  the  prices  agreed  upon. 
An  action  having  been  brought  against  him  for  not  accepting  the  wine, 
the  taking  the  samples  was  relied  on  by  the  plaintiff  as  a  part  accejot- 
ance,  so  as  to  take  the  case  out  of  the  statute.  But  Wightman,  J., 
before  whom  the  cause  was  tried,  directed  a  nonsuit,  reserving  the 
plaintiff  leave  to  move.  A  motion  was  accordingly  made  on  the  27th 
ult.,  and  a  rule  nisi  granted,  which  is  now  pending.^ 

CocKBURN,  C.  J.     That  is  a  very  different  case  from  the  present. 

1  The  rule  never  came  on  for  argument,  it  having  heen  discharged  under  the 
authority  of  a  judge's  order  on  the  29th  of  July,  1857. 


SECT.    IV.]  HART   V.    BUSH.  239 

There  the  buyer  never  saw  the  hulk :  the  things  handed  to  him  really 

were  mere  samples.     But  here  the  plaintiff  receives  part  of  the  very 

things  Avhich  he  has  already  bought.     I  think  there  should  be  no  rule. 

The  rest  of  the  court  concurring,  Hide  refused. 


HART   V.  BUSH. 
In  the  Queen's  Bench,  May  31,  1858. 

[Reported  in  Ellis,  Blackburn  ^  Ellis,  494.] 

Declaration  for  goods  bargained   and   sold,  sold   and  delivered, 
money  paid,  and  on  accounts  stated. 

Plea,  never  indebted.     Issue  thereon. 

On  the  trial  before  Erie,  J.,  at  the  London  sittings  after  last  Hilary 
term,  it  appeared  that  the  plaintiff  was  a  wine  merchant  in  London, 
and  the  defendant  a  wine  merchant  at  Lancaster;  and  that  the  action 
was  brought  for  the  recovery  of  £37  lOs.,  the  price  of  some  brandy 
purchased  of  the  plaintiff  by  the  defendant.  The  order  was  given  at 
Lancaster  in  Jiily,  1858,  to  Symonds,  the  plaintiff's  traveller,  by  the 
defendant  verbally;  the  defendant  directing  that  the  brandy  should  be 
sent  to  him  by  sea  from  Griffin's  "VVhaif,  London,  which  appeared  to  be  the 
only  wharf  in  London  whence  goods  were  shipped  for  Lancaster,  and 
from  which  wharf  goods  had  previously  been  sent  by  the  plaintiff  to 
the  defendant.  The  brandy  was  sent  to  this  wharf  on  oOth  September, 
1853 ;  and  the  wharfinger  shipped  it  on  board  the  Emerald  Isle,  a 
vessel  bound  for  Liverpool.  This  ship  appeared  to  have  been  selected 
by  the  wharfinger  himself.  The  following  invoice  and  letter  were  sent 
on  1st  October  to  the  defendant :  — 

London,  30th  September,  1853. 
Mr.  William  Bush,  Lancaster, 

Bought  of  Lemon  Hart  &  Son 

One  hbd.  superior  Jersey  Brandy,  60  galls.,  at  12s.  6d.  per  gall.     .     £37  10s.  Od. 

To  Griffin's  Wliarf,  per  Eliza. 

Sn?,  —  We  have  forwarded  the  above  agreeably  -with  your  instructions  to 
Mr.  G.  Symonds  when  he  last  had  the  pleasure  of  seeing  you.  Soliciting  your 
future  favors.  We  are  yours  truly,  pro  Lemon  Hart  &  Son, 

James  Cutler. 

The  defendant  however  denied  having  received  this  invoice,  and  on 
being  asked  for  payment  said  that  he  knew  nought  about  it,  and  had  never 
received  the  brandy ;  a  denial  which  he  repeated  on  subsequent  occa- 
sions.    It  appeared  that  the  vessel  and  cargo  were  both  lost  on  the 


240'  HART   V.    BUSH.  [CHAP.    I. 

voyage  from  London  to  Liverpool.  The  defendant's  counsel  contended 
that  there  was  no  receipt  of  the  brandy  so  as  to  satisfy  the  17th  sec- 
tion of  the  Statute  of  Frauds.  A  verdict  was  found  for  the  plaintiff, 
leave  beinsf  reserved  to  the  defendant  to  move  as  after  mentioned. 

3L  Chambers  in  last  Easter  term  obtained  a  rule  calling  on  the  plaintiff 
to  shew  cause  Avhy  a  verdict  should  not  be  entered  for  the  defendant,  or 
why  a  nonsuit  should  not  be  entered,  "  on  the  ground  that  there  was  no 
sufficient  evidence  of  an  acceptance  and  receipt  of  the  goods  within  the 
17th  section  of  the  Statute  of  Frauds,  so  as  to  bind  the  defendant." 

JLush  and  C.  W.  Wood  now  shewed  cause.  There  was  enough  in 
this  case  to  satisfy  §  17  of  the  Statute  of  Frauds,  29  Car.  2,  c.  3.  In 
Meredith  v.  Meigh^  the  defendant  ordered  goods  of  plaintiff,  and 
directed  that  they  should  be  sent  by  sea  to  a  carrier  whom  the  defend- 
ant named,  and  who  transmitted  goods  by  inland  navigation  to  the 
defendant's  residence.  The  plaintiff  selected  a  ship,  and  sent  the  goods 
consigned  to  the  carrier ;  but  they  were  lost  at  sea  before  reaching  the 
carrier.  The  plaintiff  had  sent  the  bill  of  lading,  in  which  the  carrier 
was  named  as  consignee,  to  the  carrier.     The  defendant,  though  he 

if 

knew  of  all  this,  did  nothing  verbally  or  otherwise.  It  was  held  that 
there  was  not  evidence  for  a  jury  of  an  acceptance  and  receipt  within 
§  17  of  the  Statute  of  Frauds.  But  here  the  goods  actually  reached 
the  whai-finger  named  by  the  defendant :  that  is  a  receipt  and  actual 
acceptance  of  them  by  the  defendant's  agent.  It  is  not  material  that 
the  defendant  had  no  opportunity  of  examining  the  goods :  that  does 
not  affect  the  question  as  to  the  Statute  of  Frauds,  which  as  it  is  now 
held  may  be  satisfied  by  focts  still  leaving  it  open  to  the  vendee  to 
object  that  the  goods  are  not  such  as  to  correspond  with  sample.  In 
Hanson  v.  Armitage  ^  it  was  held  not  sufficient  for  the  purpose  of  the 
statute  to  deliver  the  goods  to  a  wharfinger  by  whom  goods  had  actually 
been  forwarded  from  the  vendor  to  the  vendee :  it  did  not  there  appear 
that  the  wharfinger  was  designated  by  the  vendee  on  the  particular 
occasion.  [Lord  Campbell,  C.  J.  Tliat  case  must  now  be  considered 
the  leading  case  on  this  point.]  It  has  been  overruled  on  one  point, 
namely,  as  to  the  continuance  of  the  right  of  objecting  to  the  goods 
being  enough  to  prevent  the  delivery  from  being  sufficient  under  the 
statute,^  but  otherwise  it  must  be  considered  as  law :  it  is  however  dis- 
tinguishable from  the  present  case  on  the  ground  pointed  out.  In  an 
earlier  case,  Hart  v.  Sattley,*  Chambre,  J.,  held  that  a  delivery  to  a 
carrier  usually  employed  between  the  parties  was  sufficient.  [Lord 
Campbell,  C.  J.  In  Meredith  v.  Meigh  we  treated  Hart  v.  Sattley 
as  overruled.]  It  was  however  cited  in  Morton  v.  Tibbett,^  and  appar- 
ently treated  by  the  court  as  an  authority.    [Lord  Campbell,  C.  J.    In 

1  2  E.  &  B.  364.  2  5  B.  &  Aid.  557. 

3  See  Morton  v.  Tibbett,  15  Q.  B.  428.  *  3  Campb.  528. 

5  15  Q.  B.  428. 


SECT.   rV.]  HART   V.   BUSH.  241 

Morton  v.  Tibbett  ^  the  vendee  took  a  sample,  and  directed  the  destina- 
tion of  the  goods;  that  was  clearly  evidence  of  accej)tance.]  The 
present  case  has  the  fact  which  was  not  in  Hart  v.  Sattley,'-  that  tlie 
particular  wharfinger  is  named  by  the  vendee  for  the  particular  goods. 
And  the  invoice  is  sent  at  the  time  when  the  goods  are  sent,  and  is 
never  repudiated.  In  Bushel  v.  Wheeler '  it  was  held  to  be  evidence 
for  a  jury  of  an  acceptance  within  the  statute,  that  the  vendee  hud 
ordered  the  goods  to  be  sent  by  a  particular  sloop,  and  afterwards  saw 
them  in  the  warehouse  of  the  owner  of  the  sloop ;  and,  though  he  then 
told  the  warehouseman  that  he  would  not  take  to  the  goods,  did  not 
communicate  to  the  vendor  his  re]>udiation  for  five  months.  The  judg- 
ment of  Coleridge,  J.,  in  that  case  is  strongly  in  favor  of  the  present 
plaintiff. 

Jif.  Chambers  and  T.  Jones  (northern  circuit),  contra,  were  not 
called  upon. 

Lord  Campbell,  C.  J. .  The  Legislature  continues  to  maintain  §  17 
of  the  Statute  of  Frauds ;  and  I  do  not  think  that  the  enactment  is 
satisfied  by  the  facts  of  this  case.  All  that  can  be  said  is  that  the  pur- 
chaser here  named  the  wharf,  and  that  there  was  a  delivery  at  that 
Avharf.  I  think  that  where  there  is  a  verbal  contract  and  an  order  to 
deliver  to  a  particular  carrier,  a  delivery  to  that  carrier  does  satisfy  the 
statute.  But  in  the  present  case  there  was  a  delivery  at  the  wharf 
only :  the  wharfinger  had  only  to  see  that  the  goods  were  properly  put 
on  the  wharf  and  hoisted  on  board  ship.  Hart  v.  Sattley  -  is  no  longer 
law,  as  we  declared  in  Meredith  v.  Meigh.* 

Coleridge,  J.  I  am  of  the  same  opinion.  It  is  impossible  to  say 
that  the  mere  naming  of  the  wharf  makes  the  wharfinger  the  agent  to 
accept.  Mr.  Lush  seems  to  assume  that  the  wharfnger  was  placed  in 
the  situation  of  the  vendee.     But  the  facts  do  not  bear  that  out. 

Erle,  J.  I  agree  that  the  sending  to  the  wharf  and  the  putting  on 
the  wharf  does  not  satisfy  the  words  "  accept "  "  and  actually  receive," 
however  absurd  the  words  of  the  statute  may  be. 

(Crompton,  J.,  had  left,  the  court.)  Jiule  absolute. 

1  15  Q.  B.  428.  2  3  Campb.  528. 

»  Note  to  Morton  v.  Tibbett,  15  Q.  B.  442.  «  2  E.  &  B.  364. 


TOI«  I.  U 


242  COOMBS  V.   BRISTOL  AND   EXETEE  RAILWAY  CO.      [CHAP.   I. 


COOMBS  V.  THE  BRISTOL  AND  EXETER  RAILWAY 

COMPANY. 

In  the  Exchequer,  June  1,  1858. 

[Reported  in  3  Hurlstone  Sf  Norman,  510.] 

The  declaration  stated  that,  the  defendants  being  common  carriers 
for  hire,  the  plaintiff  delivered  to  the  defendants  as  such  common  car- 
riers, and  the  defendants  as  such  carriers  received  from  the  plaintiif, 
certain  goods  of  the  plaintiif,  viz.,  a  packet  of  whalebone,  to  be  safely 
and  securely  carried  from  Exeter  to  Bristol,  and  there  to  be  delivered 
by  the  defendants  for  the  plaintiff  for  reward.  And  although  a  reason- 
able time  had  elapsed  before  this  suit,  yet  the  defendants  made  default 
in  carrying  and  delivering  the  said  goods ;  and  also,  while  they  had  the 
said  goods  for  the  purpose  aforesaid,  so  negligently  and  improperly  car- 
ried the  same  that,  by  the  default,  negligence,  and  improper  conduct  of 
the  defendants  in  that  behalf,  the  said  goods  were  wholly  lost  to  the 
plaintiff. 

Pleas  {inter  alia) :  First,  not  guilty ;  secondly,  that  the  plaintiff 
did  not  deliver  to  the  defendants  nor  did  the  defendants  receive  from 
him  the  said  goods  to  be  carried  as  aforesaid.  Whereupon  issue  was 
joined. 

At  the  trial  before  Watson,  B.,  at  the  London  sittings  in  Easter  term, 
it  appeared  that  for  some  time  previous  to  October,  1857,  the  plain- 
tiff, an  umbrella  manufacturer  and  dealer  in  whalebone  at  Bristol,  had 
agreed  with  one  Avery  to  buy  of  him  any  quantity  of  old  whalebone 
he  could  procure  at  2s.  Id.  a  pound ;  the  whalebone  to  be  delivered  at 
the  station  of  the  Bristol  and  Exeter  Railway  Company  at  Exeter, 
addressed  to  the  plaintiff,  who  was  to  pay  the  carriage.  On  the  19th 
of  October  Avery  delivered  at  the  station  of  the  railway  company  at 
Exeter  one  hundred  pounds'  weight  of  whalebone  directed  to  the  plain- 
tiff at  Bristol,  and  sent  the  invoice  to  the  plaintiff,  charging  him  with 
the  price,  amounting  to  £12  18s.  4c7.  On  the  21st  of  October  the 
plaintiff  wrote  to  Avery  stating  that  he  had  not  then  received  the 
whalebone,  although  the  invoice  had  arrived  the  day  before,  and  prom- 
isino;  to  send  a  draft  when  he  should  receive  the  whalebone.  Avery 
inquired  at  the  station  at  Exeter,  and  was  told  that  the  whalebone  had 
been  sent  from  thence.  After  some  further  correspondence,  on  the 
30th  of  October  Avery  wrote  to  the  plaintiff,  saying,  "  As  to  the  miss- 
ing bone,  as  they  have  the  account  of  it  in  Bristol  you  had  better 
make  the  claim  for  the  amount  forthwith.  I  shall  leave  it  in  your  hands, 
as  you  can  tell  them  the  price  you  gave  for  it.  I  should  also  charge 
them  for  the  loss  and  inconvenience  of  not  receiving  it.     As  soon  as 


SECT.    IV.]    COOMBS    V.    BRISTOL   AND    EXETER   RAILWAY   CO.  243 

you  can  make  it  right  please  to  send  me  the  amount."     Tlie  whale- 
bone was  never  delivered. 

Upon  this  evidence  the  counsel  for  the  defendants  objected  that,  as 
the  contract  was  for  the  sale  of  goods  above  the  value  of  £10,  and  there 
was  no  agreement  in  writing  or  acceptance  of  the  goods  Avithin  the 
Statute  of  Frauds,  and  as  there  was  no  consent  to  accept  the  particu- 
lar goods  sent,  no  pi-opcrty  in  the  goods  passed  to  the  ])laintiff,  and 
therefore  he  Avas  not  entitled  to  maintain  the  action.  The  learned 
judge  directed  a  verdict  to  be  entered  for  the  plaintiff,  reserving  liberty 
to  the  defendants  to  move  to  enter  a  nonsuit,  the  court  to  be  at  liberty 
to  draw  such  inferences  of  foct  as  a  jury  might. 

Kinfjlake^  Serjt.,  having  obtained  a  rule  nisi  accordingly, 
Butt  and  Prideaux  now  shewed  cause.     The  case  of  Coats  v.  Chap- 
lin ^  is  an  authority  that  where  there  has  been  a  verbal  order  for  goods 
above  the  value  of  £10,  and  no  directions  have  been  given  as  to  send- 
ing them,  if  the  seller  send  them  to  the  buyer  by  a  carrier  A\ho  loses 
them,  the  seller  may  sue.     But  Patteson,  J,,  there  said :  "  If  the  con- 
signees had  selected  a  particular  carrier,  it  would  have  made  a  differ- 
ence :  perhaps  if  they  had  ordered  that  the  goods  should  be  sent  by 
*  some  canier,'  the  delivery  to  the  carrier  might  have  constituted  a 
delivery  to  the  consignees."     If  goods  which  have  been  ordered  are 
delivered  to  a  carrier  named  by  the  purchaser,  an  action  for  goods  sold 
may  be  maintained.    [Martin,  B.  That  is  so  if  there  is  a  valid  contract, 
but  such  delivery  is  not  sufficient  to  take  the  case  out  of  the  Statute  of 
Frauds,    Hanson  v.  Armitage.-    Pollock,  C.  B.     Though  as  between 
the  parties  the  contract  may  not  be  enforceable,  it  may  be  good  for  col- 
lateral pui-poses.     Cannot  the  act  of  the  carrier  in  receiving  the  goods 
for  the  buyer  be  ratified  and  made  the  buyer's  own  act?     Suppose  A. 
orders  goods,  and  the  seller  goes  to  A.'s  agent  and  says,  "  Will  you 
accept  the  goods  on  behalf  of  A.  ? "     If  the  agent  accepts  the  goods 
and  A.  ratifies  his  act,  the  seller  could  not  undo  his  own  act  and  claim 
back  the  goods.     Beamwell,  B.     Suppose  I  order  goods  to  be  deliv- 
ered to  a  person  who  consumes  them :  do  I  not  accept  the  goods  ?] 
Stead  V.  Dawber^  shews  that  the  contract  is  not  void,  thouo-h  not 
enforceable  between  the  parties.     Delivery  to  a  carrier,  though  not 
named  by  the  vendee,  is  a  delivery  to  the  vendee  (Duttou  v.  Solonion- 
8on^)  ;  and  there  is  no  authority  that  where  there  has  been  a  delivery 
to  a  carrier  named  by  the  vendee,  the  vendor  is  the  proper  person  to 
sue  in  case  of  the  loss  of  the  goods.     [Watsox,  B.     It  may  be  con- 
tended that,  if  goods  are  sent  to  a  jiarticular  carrier  in  consequence 
of  the  order  of  the  vendee,  the  purchaser  has  a  qualified  possession, 
in  respect  of  Avhich  he  is  entitled  to  sue  whether  he  has  a  property 
in  them  or  not.]     The  plaintiff  is  not  seeking  to  enforce   the  con- 

1  3  Q.  B.  483.  2  5  B.  &  Aid.  557. 

3  10  A.  &  E.  57.     See  id.  65.  *  3  Bos.  &  P.  582. 


244  COOMBS   V.    BRISTOL   AND   EXETER   RAILWAY   CO.       [CHAP.   I. 

tract.  Setting  aside  the  question  whether  the  property  passed,  he 
was  at  least  a  bailee  of  the  goods :  the  carrier  held  them  as  his  agent. 
In  Coats  V.  Chaplin  ^  there  was  no  evidence  of  an  acceptance  of  the 
goods  by  the  purchaser,  while  the  fact  that  the  vendor  sued  was 
evidence  that  he  did  not  treat  the  contract  as  complete.  Here  by 
bringing  his  action  the  plaintiff  shews  that  he  assented  to  the  appro- 
priation of  the  goods.  Norman  v.  Phillips  ^  was  a  case  between  ven- 
dor and  purchaser.  That  case  is  also  distinguishable  from  the  present, 
because  here,  beyond  the  mere  fact  of  delivery  to  the  carrier,  there  ia 
evidence  that  the  parties  had  elected  to  treat  the  contract  as  complete. 
If  the  buyer  exercises  any  act  of  ownership  in  relation  to  the  goods, 
as  if  he  re-sell  or  attempt  to  re-sell  them,  that  is  sufficient  to  warrant  a 
jury  in  finding  a  delivery  and  acceptance.  Blenkinsop  v.  Clayton,^ 
Chaplin  v.  Rogers,*  Morton  v.  Tibbett.^  [Maktik,  B.  Here  the  pur- 
chaser could  only  accept  by  taking  the  goods  after  he  had  had  an 
opportunity  of  inspecting  them.  Hunt  v.  Hecht.^  Meredith  v.  Meigh  "< 
is  an  authority  to  the  same  effect.]  The  goods  were  not  unascer- 
tained goods,  because  the  plaintiff  had  agreed  to  take  "  all  the  whale- 
bone sent."  [Bramwell,  B.  Suppose  the  plaintiff  is  right  in  his  con- 
tention that  he  can  sue,  though  the  property  was  never  vested  in  him, 
to  what  damages  is  he  entitled?] 

KinglaJce^  Serjt.,  and  Collier,  in  support  of  the  rule.  In  the  absence 
of  a  special  contract  the  proper  person  to  bring  the  action  against  a 
carrier  for  the  loss  of  goods  intrusted  to  him  to  be  carried  is  the  owner 
of  the  goods.  Hence  the  consignee  is  usually  the  proper  plaintiff, 
because  the  delivery  of  the  goods  to  the  carrier  commonly  vests  the 
property  in  him.  Roscoe  on  Evidence,  p.  411,  9th  edition,  citing  Dun- 
lop  V.  Lambert  *  and  Dawes  v.  Peck.^  It  is  only  where  there  is  a  spe- 
cial contract  with  the  carrier  that  the  question  of  ownership  becomes 
immaterial.  The  question  then  is.  Had  the  property  in  the  whalebone 
vested  in  the  plaintiff?  Now  from  Hanson  v.  Armitage  "  and  other 
cases  collected  in  Roscoe  on  Evidence,  p.  342,  it  appears  that  delivery 
to  a  carrier  named  by  the  purchaser  is  not  a  delivery  to  the  purchaser, 
because  he  is  not  the  purchaser's  agent  to  accept  the  goods.  In  Nor- 
man V.  Phillips,"  Alderson,  B.,  points  out  that  there  can  be  no  accept- 
ance by  the  purchaser  while  there  is  a  power  to  reject  the  goods.  No 
doubt  the  deUvery  to  the  earner  would  have  been  a  vahd  delivery  to 
the  vendee  if  there  had  been  a  complete  sale  and  transfer  of  the  prop- 
erty by  the  contract.  In  that  case  the  seller  would  have  transmitted 
the  goods  as  agent  for  the  vendee. 

Pollock,  C.  B.     This  is  an  action  by  the  consignee  against  a  carrier 

1  3  Q.  B.  483.  2  14  m.  &  W.  277.  3  7  Taunt.  597. 

4  1  East,  192.  5  15  Q.  B.  428.  6  8  Exch.  814. 

7  2  E.  &  B.  364.  8  6  CI.  &  F.  600.  9  8  T.  R.  330. 

10  5  B.  &  Aid.  657.  "  14  M.  &  W.  277. 


SECT.   IV.]    COOMBS   V.    BRISTOL    AND   EXETER    RAILWAY    CO.  245 

to  recover  the  value  of  goods  lost  in  the  course  of  conveyance.     The 
question  is,  whether  the  ])roperty  passed  to  the  vendee.     If  it  passed, 
the  plaintiff,  the  vendee,  is  the  proper  person  to  sue  ;  if  not,  the  vendor 
should  have  sued.     It  would  be  very  inconvenient  to  treat  the  liability 
of  a  carrier  as  ambulatory, — to  hold  that  he  is  not  liable  to  the  consit^nee 
unless  the  latter  does  some  act  shewing  an  intention  to  treat  the  con- 
tract as  valid,  but  that  he  may  be  made  liable  by  the    act   of  the 
consignee  in  bringing  an  action.      The  argument  of  the   plaintiff's 
counsel  would  go  to  this  extent:  that  the  consignee,  in  a  case  where  the 
contract  is  incomplete,  may  elect  to  treat  it  as  valid,  and  by  such  adop- 
tion entitle  himself  to  say,  as  against  the  carrier,  that  he  is  the  jjroper 
person  to  sue.     But  the  liability  of  the  carrier  cannot  be    altered  by 
any  thing  which  takes  place  after  the  loss ;  it  must  be  certain  at  the 
moment  of  the  loss.     Therefore  the   question  is,  whether  the  delivery 
to  the  carrier  was  a  delivery  to  the  vendee.     I  suggested  in  the  course 
of  the  argument  that  the  only  way  in  Avhich  the  plaintiff  could  make 
out  that  the  action  Avas  well  brought  by  him  as  consignee  would  have 
been  to  shew  that  he  had  adopted  something  done  by  the  carrier  as  his 
agent,  adoption  being  equivalent  to  a  [trior  demand.     But  I  am  not. 
sure  that  a  prior  demand  would  have  done.     It  was  suggested  in  Coats 
V.  Chaplin  ^  that  the  consignee  might  have  sued.     That  was  answered 
by  the  opinions  of  the  majority  of  the  judges  that  it  was  necessary  that 
the  property  in  the  goods  should  have  passed  to  enable  him  to  do  so. 
There  is  a  decision  in  this  court"  that  delivery  to  a  carrier  is  not  suffi- 
cient, and  that  in  order  to  satisfy  the  Statute  of  Frauds  the  consignee 
must  have  had  the  power  to  reject  the  goods.     Alderson,  B.,  points  out 
that  the  statute  requires  that  the  vendee  should  have  received  the 
goods.     Here,  as  there  was  no  acceptance  of  the  goods  by  the  vendee, 
and  nothing  else  to  take  the  case  out  of  the  statute,  the  property  did 
not  pass  to  the  plaintiff;  and  on  that  ground  the  rule  must  be  absolute 
to  enter  a  nonsuit. 

Martix,  B.  I  am  of  the  same  opinion.  The  plaintiff,  being  at  Exeter 
in  October,  1857,  bought  some  whalebone  at  2s.  Id.  a  i)Ound,  and  agreed 
to  take  a  farther  quantity,  which  Avery  Avas  to  send  to  Bristol  by  the 
defendants'  railway,  the  plaintiff  agreeing  with  him  to  pay  the  carriage. 
This  was  a  verbal  contract.  On  the  19th  of  October  one  hundred 
pounds  of  whalebone  were  sent  by  Avery  from  Exeter  by  the  Bristol 
and  Exeter  Railway,  and  Avery  wrote  to  inform  the  plaintiff  that  he 
had  sent  him  a  bundle  of  whalebone.  On  the  21st  the  plaintiff  Avrote 
to  say  that  he  had  not  received  the  wlialebone,  and  that  he  would  send 
a  draft  for  the  price  when  he  got  it.  If  the  argument  of  the  jilaintiff's 
counsel  is  well  founded,  no  effect  would  be  given  to  the  promise  to 
send  a  draft  when  the  Avhalebone  should  be  received.  The  plaintiff's 
letter  to  Avery,  promising  to  pay  for  it  on  its  arrival,  shews  that  the 
1  3  Q.  B.  483.  i  Norman  v.  Phillips,  U  >L  &  W.  277. 


246  COOMBS   V.    BRISTOL   AND   EXETER  RAILWAY   CO.     [CHAP.   I. 

plaintiff  considered  Avery  to  be  the  person  who  was  to  suffer  a  loss  ; 
and  indeed  Avery  suggested  that  the  plaintiff  should  make  a  claim 
against  the  company,  and  send  the  amount  when  received  from  the 
company  to  him.     At  common  law,  upon  the  sale  of  an  ascertained 
chattel,  on  delivery  to  a  carrier  the  property  vested  in  the  vendee. 
But  by  the  17th  section  of  the  Statute  of  Frauds  "  no  contract  for  the 
sale  of  any  goods,  wares,  and  merchandises,  for  the  price  of  £10  sterling 
or  upwards,  shall  be  allowed  to  be  good,  except  the  buyer  shall  accept 
part  of  the  goods  so  sold  and  actually  receive  the  same,  or  give  some- 
thing in  earnest  to  bind  the  bargain,  &c.,  or  that  some  note  or  memo- 
randum in   writing   of  the  said  bargain  be  made   and  signed,"   &c. 
Therefore,  unless  one  of  these  things  have  happened,  this  contract  of 
sale  was  not  good ;  not  that  such  a  contract  is  absolutely  void,  for  if 
either  event  takes  place  at  any  time  after  the  verbal  contract  the  con- 
tract becomes  good.     In  Elmore  v.  Stone ^  the  doctrine  of  a  constructive 
acceptance  and  receipt  was  carried  a  long  way.     The  true  rule  was 
acted  upon  in  Hanson  v.  Armitage.^     In  Morton  v.  Tibbett  ^  the  doc- 
trine of  Blenkinsop  v.  Clayton  *  was  carried  to  an  extent  which  in  that 
case  was  correct.     But  in  Hunt  v.  Hecht  ^  it  was  pointed  out  that, 
though  the  case  was  rightly  decided,  much  Avas  said  in  the  judgment 
that  was  open  to  doubt.     One   other  point  was  made,  viz.,  that  the 
plaintiff  authorized  Avery  to  enter  into  a  contract  which  renders  the 
company  liable  independently  of  the  question  of  property.     But  there 
is  no  evidence  of  such  a  contract.     To  establish  such  a  liability,  it 
would  be  necessary  to  shew  that  the  company  had  notice  of  the  obliga- 
tion they  were  incurring.     My  brother  Watson  suggested  that,  Avhat- 
ever  was  the  effect  of  the  statute  as  between  the  vendor  and  vendee, 
as   between   the   plaintiff   and    defendants   the   verbal   contract    and 
delivery  to  the  defendants  gave  the  plaintiff  such  an  interest  as  to 
entitle  him  to  recover.     But  the  statute  says  that  the  contract  "  shall 
not  be  good,"  in  other  words  "  shall  be  invalid."     Therefore,  as  there 
Was  no  evidence  that  the  property  passed  from  Avery,  he  alone  was 
the  proper  person  to  sue. 

Bramwell,  B.  I  am  of  the  same  opinion.  The  cases  shew  clearly 
that  the  goods  were  not  the  goods  of  the  plaintiff  at  the  time  of  the 
delivery  of  them  to  the  railway  company.  Norman  v.  Phillips,®  and 
many  other  cases  which  have  been  referred  to,  establish  that  where 
there  is  a  verbal  contract  for  goods  within  the  17th  section  of  the  Stat- 
ute of  Frauds,  and  no  earnest  or  note  in  writing  of  the  bargain,  there 
must  be  some  affirmative  act  of  acceptance  to  make  the  contract  good. 
I  think  it  Avould  be  more  sensible  to  hold  that  any  delivery  and  receipt 
is  sufficient,  unless  there  is  a  subsequent  reftisal  to  accept.  Suppose 
coals  were  ordered  and  shot  down  in  a  particular  spot  for  the  buyer. 

1  1  Taunt.  458.  2  5  B.  &  Aid.  557.  3  15  Q.  B.  428. 

*  7  Taunt.  597.  »  8  Exch.  814.  6  14  M.  &  W.  277. 


SECT.    IV.]     COOMBS    V.    BRISTOL    AND    EXETER   RAILWAY   CO.  247 

I  suppose  that  would  be  an  acceptance,  thougli  no  agent  was  tliere  to 
accept  them.  Now  if  that  is  sufficient,  it  is  difficult  to  say  that  delivery 
at  a  wharf  or  to  a  carrier  named  by  the  purchaser  is  not  so.  It  would 
have  been  good  sense  to  say  that  where  a  place  is  appointed  for  the 
delivery,  if  the  goods  are  delivered  there  it  is  an  acceptance,  luilesa 
there  is  a  person  there  who  rejects  them.  According  to  Lord  Camp- 
bell ^  "  there  may  be  an  acceptance  and  receipt  of  goods  by  a  purchaser 
within  the  Statute  of  Frauds,  although  he  has  had  no  opportunity  of 
examining  them,  and  although  he  has  done  nothing  to  preclude  himself 
from  objecting  that  they  do  not  correspond  with  the  contract."  I 
agree  with  that.  But  in  such  case  the  party  must  have  done  something 
to  waive  his  right  to  reject  the  goods,  which  has  not  been  the  case 
here.  There  has  therefore  been  no  acceptance.  Then  it  was  said 
that,  independently  of  the  question  of  property,  the  plaintiff  had  deliv- 
ered goods  to  the  defendants  to  be  carried  for  him.  If  that  argument 
were  well  founded,  it  would  lead  to  considerable  inconvenience,  and 
the  plaintiff  would  only  be  entitled  to  nominal  damages.  The  only 
way  however  in  which  there  was  a  delivery  to  the  defendants  by  the 
plaintiff  was  under  the  contract  of  sale.  But  the  contract  of  sale  was 
invalid,  and  therefore  no  authority  to  the  defendants  to  receive  the 
goods  for  him.  But  it  may  be  said  the  contract  to  carry  was  made  in 
the  name  of  the  plaintiff,  and  that  he  might  ratify  it.  I  do  not  think 
that  in  fict  the  contract  was  made  in  the  name  of  the  plaintiff.  It  is 
more  reasonable  to  hold  that  the  consignor,  when  the  property  is  not 
out  of  him,  does  not  contract  for  the  consignee. 

Watson,  B.  I  agree  with  the  rest  of  the  court,  though  I  have  felt 
some  doubt.  The  plea  denies  the  delivery  of  the  goods  to  the 
defendants  by  the  plaintiff.  No  question  of  property  is  raised  by  it. 
The  evidence  was  that  the  plaintiff  directed  Avery  to  send  him  the 
goods  and  undertook  to  pay  the  carriage.  It  was  contended  that 
Avery  had  power  to  bind  the  plaintiff  as  to  the  contract  for  carriage. 
If  the  goods  had  arrived  at  their  destination  and  had  been  accepted, 
the  property  in  them  would  have  been  divested  from  the  time  of  the 
delivery  at  Exeter ;  therefore  it  is  said  there  was  a  species  of  property 
inchoate  and  not  complete  in  the  })laintiff.  That  view  of  the  case 
however  leaves  the  Statute  of  Frauds  out  of  the  question.  The  con- 
tract between  the  carrier  and  the  person  sending  the  goods  depends 
upon  the  property.  If  the  property  has  not  passed  out  of  the  con- 
signor he  must  sue,  as  in  the  case  of  goods  sent  on  sale  and  api>roval. 
If  when  the  goods  arrive  it  is  open  to  the  consignee  to  repudiate 
them,  there  is  no  complete  contract.  In  Button  v.  Solomonson  -  it  was 
said  that  delivery  to  a  carrier  was  delivery  to  the  vendee,  but  in  that 
case  there  was  a  perfect  contract.  The  proposition  was  stated  more 
correctly  by  Parke,  B.,  in  Swain  v.  Shepherd :  ^  "  Generally  speaking, 

1  In  Morton  v.  Tibbett,  15  Q.  B.  441.  2  3  Bos.  &  P.  582. 

»  1  Moo.  &  Rob.  223. 


248  NICHOLSON   V.   BOWER.  [CHAP.  I. 

where  goods  of  a  fair  merchantable  quality  are  forwarded  in  pursuance 
of  a  written  order  which  binds  the  person  giving  the  order  to  receive 
the  goods,  the  property  passes  to  that  person  by  the  delivery  to  the 
carrier."  The  observations  of  Lord  Kenyon  in  Dawes  v.  Peck  ^  apply 
to  the  other  view  of  the  present  case.  He  said  :  "  I  cannot  subscribe 
to  one  part  of  the  argument  urged  on  behalf  of  the  plaintiif,  namely^ 
that  the  right  of  property  on  which  this  action  is  founded  is  to 
fluctuate  according  to  the  choice  of  the  consignor  or  consignee ;  and 
that  consequently  either  of  them  may  at  his  pleasure  maintain  an 
action  against  the  carrier  for  the  non-deliveiy  of  the  goods.  In  my 
opinion  the  legal  rights  of  the  parties  must  be  certain  and  depend 
upon  the  contract  between  them,  and  cannot  fluctuate  according  to  the 
inclination  of  either.  This  question  must  be  governed  by  the  con- 
sideration in  whom  the  legal  right  was  vested ;  for  he  is  the  person 
who  has  sustained  the  loss,  if  any,  occasioned  by  the  negligence  of  the 
carrier;  and  whoever  has  sustained  the  loss  is  the  proper  party  to  call 
for  compensation  from  the  person  by  whom  he  has  been  injured." 

Hide  absolute  to  enter  a  nonsuit. 


NICHOLSON  AND  Another,  Assignees  o/ William  Pavitt,  Daniel 
Pavitt,  and  George  Pavitt,  Bankrupts,  v.  BOWER. 

In  the  Queen's  Bench,  November  18, 1858. 

[Reported  in  1  Ellis  ^  Ellis,  172.] 

Feigned  issue  to  try  whether  "  certain  wheat  which  was  on  the 
11th  day  of  May,  1857,  lying  in  the  warehouse  of  the  Eastern 
Counties  Railway  Company  at  Brick  Lane  station,  and  the  delivery 
of  which  to  the  said  bankrupts  or  their  said  assignees  was  afterwards 
gtopped  by  the  defendant,  was  at  the  time  of  such  stoppage  the 
property  of  the  said  bankrupts  or  their  said  assignees  as  against  the 

defendant." 

On  the  trial  before  Erie,  J.,  at  the  London  sittings  after  last  Trinity 
term,  it  appeared  that  on  4th  May,  1858,  the  defendant,  who  was  a 
corn  merchant  at  Peterborough,  sold  at  London  to  Pavitt  &  Co.,  who 
were  millers  carrying  on  business  in  London,  141  quarters  of  wheat 
to  be  deUvered  in  London.  The  defendant  sent  up  the  wheat  from 
Peterborough  in  two  parcels,  on  the  7th  and  8th  of  May,  by  the 
Eastern  Counties  Railway  to  their  station  at  Brick  Lane,  consigned 
to  Pavitt  &  Co.,  and  wrote  to  them  giving  them  notice  of  its  having 

1  8  T.  R.  330. 


SECT.    IV.]  NICHOLSON   V.    BOWER.  249 

been  so  sent,  and  requesting  their  "immediate  instructions  for 
removal."  The  wheat  was  warehoused  by  the  company  and  entered 
by  them  in  their  books  as  follows :  "  8th  May,  Peterborough,  from 
S.  Bower,  for  Messrs.  Pavitt  &  Co.,  Brick  Lane  station,  carriage  paid." 
The  usual  course  of  business  of  the  company  in  warehousing  grain  is 
to  keep  it,  if  required,  for  fourteen  days  free  of  charge,  at  the  end  of 
which  time  it  is  to  be  taken  away  by  the  consignee  or  delivered  by  the 
company  to  him  at  his  expense.  It  is  also  usual  in  the  corn  trade, 
when  com  is  warehoused  for  the  consignee,  before  finally  accepting  it 
to  take  a  sample  from  the  bulk  as  delivered  at  the  warehouse,  and 
compare  it  with  the  sample  by  which  it  was  purchased.  On  Friday 
the  8th  May  Pavitt  &  Co.  sent  their  carman  to  the  station  for  a  bulk 
sample  of  the  wheat,  which  he  brought  back.  On  the  morning  of 
Saturday  the  9th  May  George  Pavitt,  one  of  the  partners,  examined  it, 
and  said,  "Do  not  work  it  at  present;"  " to  work "  being  explained 
at  the  trial  to  mean  to  cart  it  home.  On  the  same  day  Pavitt  &  Co. 
being  in  embarrassed  circumstances  decided  upon  calling  a  meeting 
of  their  creditors  on  Monday,  May  11th,  and  gave  immediate  notice  to 
the  creditors.  The  defendant  in  consequence  came  to  Pavitt  &  Co.  on 
that  day  and  asked  them  for  an  order  for  the  wheat,  which  they  were 
about  to  give  when  some  of  the  other  creditors  present  interfered. 
The  defendant  afterwards  sent  to  the  railway  station  and  stopped  the 
wheat,  directing  the  company  to  hold  it  to  his  order,  which  they 
accordingly  did.  The  defendant's  witnesses  stated,  which  George 
Pavitt  denied,  that  George  Pavitt  had  told  the  defendant  on  the 
Monday,  11th  May,  that  he  had  refused  the  wheat  on  9th  May  because 
it  was  not  equal  to  sample.  It  was  admitted  that  the  wheat  was 
actually  equal  to  sample. 

The  jury,  in  answer  to  a  question  of  the  learned  judge,  found  that 
George  Pavitt  had  told  the  defendant  that  he  refused  the  Avheat 
because  it  was  not  according  to  sample ;  but  that  it  was  not  really 
refused  by  him  on  that  ground.  A  verdict  was  entered  for  the  plain- 
tiffs, with  leave  to  move  to  enter  it  for  the  defendant,  either  if  there 
had  been  no  acceptance  of  the  wheat  by  the  bankrn])ts  within  the 
Statute  of  Frauds,  or  if  the  transitus  of  the  wheat  was  not  at  an  end 
when  it  was  stopped  by  the  defendant. 

Skinner  in  this  term  obtained  a  rule  nisi  accordingly. 
Bovill  now  shewed  cause.  The  tran situs  was  at  an  end  when  the 
goods  were  delivered  at  the  warehouse  of  the  railway  company,  and 
the  company  had  entered  the  name  of  the  vendees  in  their  books  as 
the  consignees,  with  their  acquiescence.  The  vendor,  according  to  his 
established  course  of  business,  sends  the  corn  to  the  railway  company 
as  his  agents,  addressed  to  the  vendee.  The  company  hold  it  for  the 
vendee ;  and  he  afterwards  exercises  a  control  over  it  by  sending 
down  his  man  to  take  a  bulk  sample.     There  has  been  therefore  a  con- 


250  NICHOLSON   V.   BOWER.  [CHAP.   I. 

tract  of  sale,  a  delivery,  and  an  acceptance  ;  and  the  effect  of  those  three 
combined  is  to  pass  the  property.  [Lord  Campbell,  C.  J.  Would 
the  taking  of  the  bulk  sample  necessarily  constitute  an  acceptance  ?] 
Perhaps  not  in  every  case ;  but  here  it  amounted  to  an  acting  by  the 
vendee  upon  the  notice  of  the  arrival  of  the  goods,  and  an  acquiescence 
in  their  being  held  by  the  railway  company  for  him  as  his  agents.  The 
words  "Do  not  work  it  at  present"  amounted  merely  to  an  order  not 
to  deliver  the  corn  actually  to  him  at  his  mill  for  the  present ;  and  such 
an  order  by  a  vendee  does  not  prevent  the  transitus  from  being  com- 
plete if  he  has  exei'cised  an  ownership)  over  the  goods.  Foster  v. 
Frampton,^  That  case  is  completely  in  point  with  the  present.  There 
the  vendee  on  receiving  notice  from  the  carrier  of  the  amval  of  the 
goods  took  samples  from  them,  and  desired  that  the  bulk  might  re- 
main in  the  earner's  warehouse  till  further  directions ;  and  it  was  held 
that  the  transitus  was  at  an  end.  In  Scott  v.  Pettit  ^  the  court  held, 
adopting  the  opinion  expressed  by  Chambre,  J.,  in  giving  judgment  in 
Richardson  v.  Goss,^  that  if  goods  be  sent  for  a  vendee  to  the  ware- 
house of  another  person,  habitually  used  by  such  vendee  as  a  repos- 
itoi-y  of  his  goods,  the  transitus  is  at  an  end  as  soon  as  the  goods 
arrive  at  such  warehouse.  So  here  the  railway  company,  after  the 
goods  had  ai-rived  at  their  warehouse  and  had  been  entered  to  the 
vendee  as  consignee,  and  more  especially  after  the  exercise  of  an  act  of 
ownership  by  him,  ceased  to  be  carriers  of  the  goods  for  the  vendor, 
and  became  bailees  of  them  for  the  vendee.  It  may  perhaps  be  con- 
tended that  a  new  contract  would  be  necessary  between  the  railway 
company  and  the  vendee  to  place  them  in  the  position  of  bailees  for 
him  ;  and  that  under  the  original  contract,  made  according  to  the 
usual  course  of  business,  the  corn  would  have  to  remain  in  their  ware- 
house for  fourteen  days.  But  under  that  contract  the  corn  was  ware- 
housed by  them  from  the  beginning  for  the  vendee  :  their  relations 
under  that  contract  with  the  vendor  as  carriers  ceased  upon  the 
arrival  of  the  corn.  [Lord  Campbell,  C.  J.  When  do  you  say 
that  the  acceptance  by  the  vendee  was  complete  ?]  After  the  vendee 
had  seen  the  sample,  and  did  not  —  as  he  did  not  at  that  time  —  object 
to  it.  [WiGHTMAN,  J.  He  might  have  said  :  "  I  do  not  find  fault  with 
the  sample,  but  I  now  decline  to  have  the  wheat  at  all."  There  Avould 
be  no  acceptance  by  him  in  such  case.]  Wentwoi'th  v.  Outhwaite* 
and  Allan  v.  Gripper  ^  are  also  authorities  for  the  plaintiff.  There  it 
was  held  that  the  transitus  of  goods  was  complete  when  they  had 
arrived  at  a  warehouse  of  a  third  person  (in  the  last  mentioned  of  the 
tAvo  cases,  that  of  the  carrier  himself)  to  which  the  vendee  had  in- 
tended them  to  be  conveyed,  and  where  they  remained  till  his  further 
orders.     Whitehead  v.  Anderson®    and  James  v.  Griffin  "^  shew  under 


1  6  B.  &  C.  107. 

2  3  B.  &  P.  469. 

3  3  B.  &  P.  119. 

*  10  M.  &  W.  436. 

5  2  Cr.  &  J.  218. 

6  9  M.  &  W.  518, 

7  2  M.  &  W.  623. 

SECT.    IV.]  NICHOLSON   V.   BOWER.  251 

what  circumstances  a  constructive  possession  by  the  vendee  may  be 
implied  from  acts  of  ownership  by  liim,  witli  the  consent  of  the  carrier 
holding  the  goods.  Here  "Was  clearly  such  act  of  ownership  and  such 
assent.  Heinekey  v.  Earle  ^  shews  what  amounts  to  an  acceptance  of 
the  goods  by  the  vendee  upon  their  arrival  at  the  place  of  destination. 
[Lord  Campbell,  C.  J.  There  the  vendee,  after  the  goods  had  ar- 
rived upon  his  own  premises,  assented  to  their  remaining  there. 
Hill,  J.  Suppose  that  in  the  present  case  the  vendee,  upon  the  an-i- 
val  of  the  goods  at  the  warehouse,  had  at  once,  without  communicat- 
ing with  the  railway  company,  written  to  the  vendor,  and  refused  to 
accept :  the  vendee  would  not  be  bound  in  that  case  by  the  delivery  at 
the  warehouse  of  the  railway  company,  and  the  entry  of  the  goods  to 
him.]  He  is  at  all  events  bound  by  having  taken  a  bulk  sample,  and 
having  made  no  objection  upon  examining  it :  that  amounts  to  an 
acceptance.  It  will  perhaps  be  contended  that  there  was  a  rescinding 
of  the  contract.  But  a  rescinding  must  be  by  mutual  consent. 
[Lord  Campbell,  C.  J.  If  the  projierty  has  not  passed,  there  may  be 
a  repudiation  by  one  party  which  would  act  as  a  rescinding.] 

Skinner  and  Field,  contra,  were  not  called  upon. 

Lord  Campbell,  C.  J.  Mr.  Bovill  has  argued  very  powerfully  that 
the  transitnswas  at  an  end;  and  if  I  were  to  give  judgment  upon  that 
point,  I  should  be  disposed  to  take  the  same  view.  But  it  is  not  neces- 
sary for  me  to  decide  that  question,  because  I  am  of  opinion  that  there 
was  no  bindintj  contract  between  the  vendor  and  vendee  without  an 
acceptance  by  the  latter,  and  that  there  was  not  such  an  acceptance 
as  to  satisfy  §  17  of  the  Statute  of  Frauds.  I  had  hoped  from  the 
recent  discussions  in  Paidiament  that  the  restrictions  imposed  by  that 
section  would  have  been  removed ;  but,  according  to  the  law  as  it  still 
remains,  I  think  that,  though  the  transitus  might  be  considered  at  an 
end,  and  the  warehouse  of  the  railway  company  might  be  considered 
as  that  of  the  consignee,  the  property  never  legally  vested  in  him,  the 
contract  of  sale  not  beinsc  binding.  It  seems  to  me  that  the  vendee 
examined  the  wheat  to  see  if  it  corresponded  with  the  sample,  and 
that  he  did  not  object  to  it ;  but  knowing  the  position  in  which  his 
affairs  were,  and  wishing  the  vendor  not  to  lose  his  goods,  he  cau- 
tiously avoided  any  thing  like  an  acceptance  .of  them.  His  order,  "Do 
not  work  it  at  present,"  was,  I  think,  given  for  the  purpose  of  enabling 
him  afterwards  to  rejiudiate  the  contract. 

WiGiiTMAX,  J.    I  also  am  of  opinion  that,  independently  of  the  ques- 
tion of  transitus,  and  even  assuming  that  itAvas  complete,  there  was  no 
accei)tance  by  the  vendee.     The  evidence  appears  to  me  to  shew  that 
he  purposely  suspended  his  acceptance. 
.    Erle,  J.     I  think  that  the  plaintiffs  have  failed  to  shew  an  accept- 

1  8  E.  &  B.  427,  in  Exoh.  Ch.,  affirming  the  judgment  of  Q.  B.  in  Ileinckey  v. 
Earle,  8  E.  &  B.  410. 


252  CURRIE   V.    ANDERSON.  [CHAP.    I. 

ance  of  part  of  the  goods  by  the  vendee  sufficient  to  satisfy  the  Stat- 
ute of  Frauds.  When  the  goods  arrived  at  the  warehouse  ready  to  be 
delivered  to  the  vendee,  he  had  power  to  inspect  a  bulk  sample  before 
accepting.  He  does  inspect  a  sample,  and  apparently  found  that  it  corre- 
sponded ;  but  at  that  very  instant  he  says,  "  Do  not  work  it  at  present," 
meaning,  as  I  think,  "  I  shall  hold  my  hands  in  respect  of  this  transac- 
tion ;  because,  unless  I  succeed  in  making  arrangements  with  my  cred- 
itors, this  corn  ought  to  go  back  to  the  consignor."  On  the  next 
working  day  he  actually  does  that  which  is  equivalent  to  giving  notice 
to  the  consignor  to  take  it  back.  That  notice  he  had  a  right  to  give,  if 
he  had  not  accepted ;  and  I  think  that  upon  the  evidence  he  had  pur- 
posely abstained  from  accepting. 

Hill,  J.  The  question  of  acceptance  or  non-acceptance  in  a  case 
like  this  depends  upon  the  intention  of  the  vendee  as  gathered  from 
his  outward  acts.  The  taking  of  a  part  of  the  goods  may  amount  to 
an  acceptance ;  but  it  may  be,  and  I  think  that  in  the  present  case  it  is, 
coupled  with  conduct  which  rebuts  that  presumption. 

Rule  absolute. 


CURRIE   AND   Others  v.  ANDERSON. 

In  the  Queen's  Bench,  February  7,  1860. 

[Reported  in  2  Ellis  ^'  Ellis,  592.] 

Declaration  for  goods  sold  and  delivered. 

Plea,  never  indebted.     Issue  thereon. 

At  the  trial  before  Watson,  B.,  at  the  Liverpool  summer  assizes, 
1859,  the  facts  appeared  to  be  as  follows:  The  plaintiffs  were  mer- 
chants and  ship  chandlers  at  Liverpool,  carrying  on  business  under  the 
firm  of  Currie,  Newton  &  Co.,  and  the  defendant  Avas  a  ship  owner  at 
Aberdeen.  On  27th  September,  1855,  the  defendant  called  at  plain- 
tiffs' office,  and  saw  Mr.  Newton,  one  of  the  plaintiffs,  and  verbally 
ordered  of  him  some  stores,  to  the  amount  of  £62  10s.,  for  the  Phoe- 
nix, a  ship  of  the  defendant,  then  in  the  Black  Sea,  to  be  sent  out  from 
Liverpool  by  one  of  Mclver's  steamers  to  Constantinople.  'The  defend- 
ant directed  Newton  to  enter  the  stores  out  at  the  custom  house. 
Before  he  ordered  the  stores  he  had  asked  Newton  whether  the  plain- 
tiffs had  ever  sent  any  goods  out  to  Constantinople,  and  whether  they 
had  any  agent  there.  Newton  answered  that  they  had  no  agent  there, 
but  had  once  consigned  some  goods  there  to  Messrs.  Hanson  &  Co. 
Newton,  having  selected  the  goods  according  to  the  defendant's  order, 
namely,  five  tierces  of  beef,  four  barrels  of  pork,  two  barrels  of  flour, 


SECT.    IV.]  CURRIE   V.    ANDERSON,  253 

one  barrel  of  peas,  and  one  keg  of  barley,  entered  them  out  at  the 
custom  house,  and  sent  them  down  to  Mclver's  steamer  Melita  in  a 
cart,  tosrether  with  two  other  barrels  of  flour,  which  the  defendant  hav- 
ing  purchased  of  some  other  person  had  in  the  mean  time  sent  to  the 
plaintiffs'  Avarehouse  to  be  sent  to  the  ship  together  with  the  goods 
which  he  had  ordered  of  the  plaintiffs.  Newton  afterwards  asked  the 
defendant  how  the  bills  of  lading  were  to  be  made  out,  and  the  de- 
fendant said,  "  Make  them  out  in  the  name  of  the  same  parties  you 
sent  your  goods  to ;  "  and  added,  "  You  had  better  make  them  out  in 
your  own  name,  for  they  won't  know  me,  but  will  know  you."  Accord- 
ingly the  plaintiffs  made  out  the  bill  of  lading  thus:  — 

"  Shipped  by  Curric,  Newton  &  Co."  (here  followed  an  enumeration 
of  the  goods,  which  corresponded  with  the  order  in  all  respects,  except 
that  the  number  of  barrels  of  flour  enumerated  was  four,  the  two  sent 
by  the  defendant  to  the  plaintifts'  warehouse  as  above  mentioned  being 
included).  "To  be  delivered  at  the  port  of  Constantinople  unto 
Messrs.  C.  Hanson  &  Co.  or  their  assigns." 

The  plaintiffs  handed  the  bill  of  lading  to  the  agent  of  the  steamer, 
and  at  the  same  time  (13th  October,  1855)  paid  freight  for  the  whole 
and  received  back  the  bill  of  lading  signed.  On  16th  October  the 
defendant  called  on  the  plaintiffs  and  repaid  the  freight,  and  Newton 
handed  him  the  bill  of  lading.  The  defendant  enclosed  the  bill  of 
lading  in  a  letter  addressed  to  the  captain  of  the  Phoenix,  to  the  care 
of  Messrs.  Hanson  &  Co.,  Constantinople  ;  and  wrote  another  letter  to 
the  captain  advising  him  of  this.  The  captain  being  absent  in  the 
French  transport  service  in  the  Black  Sea  did  not  receive  these  letters 
for  some  time,  but  on  doing  so  in  the  middle  of  March,  1856,  went  to 
Constantinople  and  obtained  the  bill  of  lading  from  Messrs.  Hanson 
&  Co.  The  goods  however  were  not  forthcoming.  It  did  not  a])i)ear 
whether  or  not  the .  Melita  ever  arrived  at  Constantinople.  The 
captain  of  the  Phoenix  returned  the  bill  of  lading  to  the  defendant, 
who  on  5th  November,  1856,  forwarded  it  from  Aberdeen  to  the  plain- 
tiffs in  a  letter,  in  which  he  said,  "I  enclose  the  bill  of  lading  for  stores 
sent  out  to  the  barque  Phoenix.  Please  see  after  them.  I  think  that 
the  master  of  the  steamer  must  account  for  them."  The  plaintifls 
immediately  returned  the  bill  of  lading,  saying  that  they  could  not 
interfere  in  the  matter.  And  after  a  long  correspondence  they 
brought  tliis  action  to  recover  the  price  of  the  stores  so  supplied  by 
them. 

The  jury  returned  a  verdict  for  the  plaintiffs  for  the  amount  claimed, 
£62  10s.;  and  the  learned  judge  reserved  leave  to  the  defendant  to 
move  to  enter  the  verdict  for  him  if  the  court  should  be  of  opinion 
that  there  was  no  evidence  of  an  acceptance  and  receipt  by  the 
defendant  of  the  goods  to  satisfy  the  Statute  of  Frauds. 

A  rule  having  been   obtained  calling  upon  the  plaintiffs  to  shew 


254  CURRIE   V.    ANDERSON.  [CHAP.    I. 

cause  why  the  verdict  should  not  be  entered  for  the  defendant  on  the 
ground  that  there  was  no  sufficient  evidence  of  an  acceptance  and 
receipt  by  the  defendant  of  the  goods, 

Haylis  now  shewed  cause.  The  facts  that  the  goods  were  delivered 
on  board  the  Melita  at  Liverpool  as  directed  by  the  defendant,  and 
that  he  accepted  and  dealt  with  the  bill  of  lading,  together  constitute 
sufficient  evidence  of  such  an  accej^tance  and  receipt  by  him  of  the 
goods  as  to  satisfy  the  17th  section  of  the  Statute  of  Frauds. 
[CROMPTOisr,  J.  The  keeping  of  and  dealing  with  the  bill  of  lading 
seem  to  amount  to  an  actual  receipt  of  the  goods  according  to  the 
doctrine  laid  down  in  Meredith  v.  Meigh.^]     (He  was  then  stopped.) 

Manisty  and  Kemplay^  in  support  of  the  rule.  There  was  no 
evidence  in  this  case  of  an  actual  accejjtance  and  receipt  of  the  goods 
by  the  defendant  sufficient  to  satisfy  the  17th  section  of  the  Statute 
of  Frauds.  No  authority  can  be  cited  to  shew  that  the  mere  receipt 
by  him  and  sending  out  to  Constantinople  of  the  bill  of  lading  was 
such  a  dealing  with  the  bill  of  lading  as  to  pass  to  him  the  property 
in  the  goods.  The  decision  in  Meredith  v.  Meigh  was  that  the 
goods  there  in  question  had  not  been  accepted  within  the  statute; 
and  the  opinion  expressed  by  some  of  the  judges  that  a  keeping  and 
dealing  with  the  bill  of  lading  might  amount  to  an  actual  receipt  of 
the  goods  was  only  an  obiter  dictum.  [Cromptox,  J.  In  that  case 
the  bill  of  lading  had  not  been  sent  to  the  defendants,  but  to  car- 
riers named  by  them  and  who  were  their  agents  only  for  the  purpose 
of  forwarding,  not  for  that  of  accepting,  the  goods.  Coleridge,  J., 
however  observed :  ^  « I  think  that  if  the  bill  of  lading  had  been 
received  by  the  defendants  themselves,  especially  if  they  had  dealt 
with  it,  the  case  might  have  been  diffisrent."  And  Erie,  J.,  said : 
"I  have  no  doubt  that  the  bill  of  lading,  which  is  the  sjTiibol  of 
the  property,  may  be  so  received  and  dealt  with  as  to  be  equivalent 
to  an  actual  receipt  of  the  property  itself."]  Those  were  mere  dicta^ 
and  formed  no  part  of  the  ratio  decidendi.  [CROMPTOisr,  J.  The 
defendant  in  the  present  case  dealt  as  owner  with  the  goods  them- 
selves by  desiring  them  to  be  sent  to  the  ship  together  with  other 
goods  which  were  clearly  his  own.]  In  Holmes  v.  Hoskins^  the 
defendant  verbally  agreed  to  buy  of  the  jDlaintiff  some  cattle  then 
in  the  field.  After  the  bargain  was  concluded  the  defendant  felt 
in  his  pocket  for  his  cheque-book  in  order  to  pay  for 'the  cattle, 
but  finding  that  he  had  not  it  he  told  the  plaintiff  to  come  to  his 
house  in  the  evening  for  the  money.  It  was  agreed  that  the  cattle 
should  remain  in  the  plaintiff's  field  for  a  few  days,  and  that  the 
defendant  should  feed  them  with  the  plaintiff's  hay,  which  was 
accordingly  done.  But  it  was  held  that  there  was  no  evidence 
of  an  acceptance  of  the  cattle  to  satisfy  the  Statute  of  Frauds. 
1  2  E.  &  B.  364.  2  2  E.  &  B.  372.  3  9  Exch.  753. 


SECT.   IV.]  CURRIE    V.    ANDERSON.  255 

[CoMPTOX,  J.  The  vendor  of  the  cattle  intended  to  retain  possession 
of  them  until  he  was  paid.]  Farina  v.  Home  ^  is  strongly  in  point 
for  the  defendant.-  .  .  .  Hart  v.  Bush,''  in  which  the  delivery  of  goods 
at  a  wharf  named  by  the  purchaser  was  held  not  to  amount  to  an 
acceptance  and  actual  receipt  of  them  by  him  within  the  meaning  of 
the  statute,  the  goods  having  been  shipped  to  him  by  his  directions 
from  that  wharf,  and  lost  on  their  passage  thence  to  him,  shews  that  in 
the  present  case  the  delivery  of  the  goods  on  board  a  ship  named  by 
the  defendant  did  not  satisfy  the  statute.  [Hill,  J.  In  Hart  v.  Bush 
the  goods  Avere  merely  sent  to  a  wharf  which  was  the  only  wharf  in 
London  whence  goods  were  shi])ped  to  Lancaster  where  the  delen<lant 
lived.  There  was  no  dealing  by  the  defendant  with  the  goods,  nor  did 
he  receive  any  bill  of  lading.  Crompton,  J.  Suppose  the  defendant 
here  had  re-sold  the  goods  as  the  purchaser  did  in  Morton  v.  Tibbett,* 
your  argument  would  equally  apply ;  but  could  it  have  been  said  that 
the  defendant  had  not  accepted  and  received  the  goods?]  A  re-sale 
would  have  been  an  exercise  of  ownership,  and  would  have  made  a 
material  difference  in  the  fixcts  of  the  case.  Much  hoAvever  that  is  said 
in  Morton  v.  Tibbett  may  be  open  to  doubt.  Hunt  v.  Hecht.^  The 
mere  delivery  of  the  bill  of  lading  did  not  pass  the  property  in  the 
goods  to  the  defendant.  [Hill,  J.  Browne  v.  Hare  '^  shews  that  a 
delivery  on  board  ship  may  pass  the  property  if  it  be  in  pursuance 
of  the  contract  of  sale,  even  though  the  vendor  retams  the  bill  of 
lading.] 

WiGnTJLS.x,  J.  I  am  of  opinion  that  there  was  evidence  in  this  case 
that  the  defendant  so  dealt  with  the  goods  and  with  the  bill  of  lading 
as  to  justify  the  jury  in  finding  that  there  was  an  acceptance  and  actual 
receipt  by  him  of  the  goods  within  the  meaning  of  the  17th  section  of 
the  Statute  of  Frauds.  The  facts  seem  to  bring  the  case  very  much 
within  the  principle  thrown  out  by  some  of  the  judges  in  Meredith  v. 
Meigh,''  in  which  I  entirely  concur.  Erie,  J.,  there  says:  "I  have  no 
doubt  that  the  bill  of  lading,  which  is  the  symbol  of  jiroperty,  may  be 
so  received  and  dealt  Avith  as  to  be  equivalent  to  an  actual  receij)t  of 
the  property  itself."  And  Crompton,  J. :  "  When  goods  or  the  indicia 
of  the  property  in  goods  remain  long  under  the  control  of  the  vendee, 
especially  when  the  vendee  has  in  any  respect  acted  as  the  owner  of 
the  goods,  there  may  be  sufficient  evidence  of  an  acceptance  and 
receipt,  although  the  goods  themselves  are  not  received,"  Li  the 
present  case  the  defendant  purchases  goods  of  the  plaintiffs,  and  hear- 
ing from  them  that  they  had  before  consigned  goods  to  Messrs.  Han- 
son &  Co.  at  Constantinople  desires  the  plaintiffs  to  make  out  the  bill 

1  16  M.  &  W.  119.  "  The  learned  counsel  here  stated  that  case.  —  Ed. 

3  E.  B.  &  E.  494.  *  15  Q.  B.  428.  5  8  Exch.  814. 

6  3  H.  &  N.  484 ;  judgment  affirmed  in  Excli.  Chamber,  4  H.  &  N.  822. 
1  2  E.  &  B.  364. 


256  CURRIE   V.   ANDERSON.  [CHAP.    I. 

of  lading  to  that  firm.  The  defendant  also  sent  goods  of  his  own  to 
the  iDlaintiffs'  warehouse,  which  were  by  his  direction  sent  down  to  the 
same  ship  with  the  goods  purchased  by  him  of  the  plaintiffs.  All  the 
goods  were  put  on  board  together,  and  in  the  bill  of  lading  those  other 
goods  of  the  defendant  were  included  with  the  goods  the  subject  of 
the  present  action.  The  jjlaintiffs  paid  the  freight  in  the  first  instance, 
and  the  defendant  repaid  them,  and  thereupon  received  from  them  the 
bill  of  lading.  This  was  in  October,  1855,  and  after  keeping  and  deal- 
ing with  the  bill  of  lading  for  more  than  a  year,  the  defendant  returned 
it  in  November,  1856,  to  the  plaintiffs  with  this  letter :  "  I  enclose  the 
bill  of  lading  for  stores  sent  out  to  the  barque  Phcenix.  Please  see 
after  them.  I  think  that  the  master  of  the  steamer  must  account  for 
them."  This  letter  seems  to  me  most  material  as  evidence  to  shew  that 
the  defendant  has  acted  as  owner  of  the  goods,  not  only  by  keeping  the 
bill  of  lading  so  long,  but  by  expressly  desiring  the  plaintiffs  to  see 
after  the  goods.  Drawing  the  ordinary  inference  from  all  these  facts, 
I  think  that  there  Avas  abundant  evidence  that  the  defendant  had  so 
dealt  with  the  goods  as  to  have  accepted  and  actually  received  them 
within  the  dicta  in  Meredith  v.  Meigh,^  which  are  clearly  good  law. 

Ceompton,  J.  I  am  of  the  same  opinion.  Before  the  case  of  Mor- 
ton V.  Tibbett^  a  general  notion  prevailed  that  there  could  be  no 
acceptance  and  receipt  of  goods,  such  as  to  satisfy  the  Statute  of 
Frauds,  until  the  vendee  had  put  himself  in  such  a  position  as  [not  ?]  to 
be  able  to  object  to  the  quantity  or  quality  of  the  goods.  That  notion 
was  overthrown  by  the  decision  in  Morton  v.  Tibbett,  which  must  in 
this  court  be  considered  to  be  the  law  of  the  land ;  and  the  discussion 
to-day  has  more  than  ever  satisfied  me  of  its  correctness.  In  Meredith 
V.  Meigh  the  facts  shewed  that  there  had  been  no  dealing  whatever 
with  the  bill  of  lading  by  the  defendant ;  but  the  judges  stated  the 
law  to  be  that  the  keeping  of  the  bill  of  lading  or  other  mdicia  of  the 
pi'operty  in  the  goods  might  be  sufiicient  to  constitute  an  acceptance 
and  receij^t  of  the  goods.  In  the  present  case  the  keeping  of  the  bill 
of  lading  by  the  defendant  for  more  than  a  year  is  a  very  strong  fact ; 
but  I  am  inclined  to  think  that  independently  of  the  doctrine  laid  down 
in  Meredith  v.  Meigh  there  was  sufficient  evidence  that  the  defendant 
had  accepted  and  received  the  goods.  He  directed  the  goods  to  be 
sent  on  board  a  particular  ship,  and  after  they  had  been  so  sent,  together 
with  other  goods  of  his,  he  directed  how  the  bills  of  lading  should  be 
made  out,  making  the  Avhole  of  the  goods  deliverable  to  Hanson  &  Co. 
Under  all  the  circumstances  of  the  case  it  seems  to  me  perfectly  clear 
that  the  jury  were  quite  right  in  finding  that  there  was  an  acceptance 
of  the  goods  by  the  defendant. 

Hill,  J.     I  am  of  the  same  opinion.     This  is  a  very  clear  case.     The 
question  is  whether  there  was  evidence  on  which  the  jury  could  reason- 

1  2  E.  &  B.  364.  'i  15  Q.  B.  428. 


SECT.    IV.]  CASTLE  V.    SWORDER.  257 

ably  find  that  there  was  an  acceptance  and  receipt  of  the  goods  by  the 
defendant  witliin  the  17tli  section  of  the  Statute  of  Frauds.  The  orig- 
inal order  by  the  defendant  was  to  send  the  goods  for  him  to  one  of 
Mclver's  boats  bound  for  Constantinople.  Before  the  order  was  exe- 
cuted, tlie  defendant  sent  some  barrels  of  flour  belonging  to  him  to  the 
plaintiffs'  warehouse,  with  directions  that  they  were  to  be  jmt  on 
board  the  same  ship  with  the  other  goods;  and  they  were  all  sent 
together  to  the  ship  by  one  cart.  Afterwards,  in  accordance  with  the 
defendant's  directions,  the  bill  of  lading  is  made  out  in  the  plaintiffs' 
names,  and  by  it  the  goods  are  made  deliverable  to  Hanson  &  Co.  or 
their  assigns  at  Constantinople,  so  that  the  defendant  makes  Hanson  & 
Co.  his  accents  to  receive  and  deal  Avith  the  G^oods  on  their  arrival  out. 
The  plaintiffs  pay  the  freight,  but  the  defendant  reimburses  them  and 
then  receives  from  them  the  bill  of  lading,  which  he  keeps  for  upwards 
of  a  year,  the  plaintiffs  hearing  nothing  of  it  till  at  the  end  of  that  time 
they  receive  it  back  from  the  defendant  enclosed  in  a  letter  in  which 
he  treats  all  the  goods  as  his  own.  Apart  then  from  any  reference  to 
the  cases  or  to  the  doctrine  of  constructive  ■  acceptance,  I  think  that 
there  was  amj^le  evidence  that  the  defendant  had  dealt  with  the  goods 
themselves  as  owner,  and  that  he  had  therefore  -accepted  and  actually 
received  them  within  the  meaninir  of  the  statute. 

Hide  discJiarged. 


o 


CASTLE  AND  Another  v.   SWORDER. 

In    the    Exchequer    and    Exchequer   Chamber,  February  10, 

1860,  AND  May  15,  1861. 

[i?eportec?  in  29  Law  Journal  Reports,  Exchequer,  235 ;  30  Idem,  310.] 

Declaration  for  goods  bargained  and  sold,  goods  sold  and  delivered, 
and  on  accounts  stated  between  them.     Plea,  never  indebted. 

At  the  trial  before  Bramwell,  B.,  at  the  Bristol  summer  assizes,  1859, 
the  following  facts  appeared :  — 

In  February,  1857,  the  traveller  of  the  plaintiffs,  who  were  spirit 
merchants  at  Bristol,  received  a  verbal  order  from  the  defendant,  an 
innkeeper  at  Merthyr  Tydvil,  for  two  puncheons  of  rum  and  one  of 
brandy.  They  were  to  remain  in  bond  in  the  Avarehouse  of  the  plain- 
tiffs till  the  defendant  wanted  them,  for  six  months  without  ])ayment, 
and  after  that  period  subject  to  payment  of  rent.  The  defendant  was 
to  have  six  months'  credit.  This  order  was  accepted  by  the  plaintiffs, 
who  sent  to  the  defendant  an  invoice  specifying  by  their  marks  two 
particular  puncheons  of  rum  and  a  hogshead  of  brandy  as  sold  to  him, 

VOL.   1.  17 


258  CASTLE   V.   SWORDER.  [CHAP.   I. 

stating  the  price  £80.  2s.  2d.,  and  adding  the  words  "free  for  six 
months,"  which  meant  that  the  goods  might  remain  six  months  w^ithout 
charge  in  their  warehouse.  The  plaintiffs  keep  a  warehouse  at  Bristol, 
with  a  bonded  cellar,  of  which  they  keep  one  key  and  the  custom-house 
officers  another,  in  which  the  spirits  in  question  were.  The  plaintiffs 
were  in  the  habit  of  receiving  and  keeping  other  persons'  goods  in  their 
warehouse,  and  charging  them  for  warehouse  room.  As  soon  as  the 
brandy  and  rum  were  sold,  the  plaintiffs  entered  the  transfer  in  their 
rum  and  brandy  books  respectively,  specifying  the  particular  casks  as 
sold  to  the  defendant.  After  that  entry  the  plaintiffs  had  no  power  of 
getting  the  goods  out.  On  the  plaintiffs'  traveller  calling  with  the 
account  after  the  credit  was  expired,  he  was  asked  by  the  defendant 
whether  he  would  take  the  goods  back  or  sell  them  for  him.  This  the 
traveller  declined.  The  defendant  afterwards,  in  February,  1859, 
wrote  to  the  plaintiffs  asking  what  price  they  were  wilhng  to  give  for 
the  rum  and  brandy.  The  spirits  remained  in  the  plaintiffs'  bonded 
warehouse. 

Upon  proof  of  these  facts  on  the  j^art  of  the  plaintiffs,  it  was  ob- 
jected for  the  defendant  that  there  was  no  delivery  or  acceptance  to 
satisfy  the  Statute  of  Frauds ;  and  the  learned  judge  being  of  that 
opinion,  a  nonsuit  was  ordered,  with  leave  to  the  plaintiffs  to  move  to 
enter  a  verdict  for  them  for  the  specified  price,  if  the  court  should  think 
that  there  was  any  evidence  upon  which  a  jury  might  find  for  the  plain- 
tiffs. 

A  rule  having  been  obtained  accordingly, 

Wehbij  and  Edicards  shewed  cause.  Bentall  v.  Burn  ^  and  Howe  v. 
Palmer-  are  decisive  of  this  case.  No  doubt  there  are  some  cases  where, 
although  goods  remained  on  the  j^remises  of  the  vendor,  there  is  an  ac- 
ceptance ;  but  the  result  of  the  cases  is  thus  stated  in  Blackburn  on  the 
Contract  of  Sale.  After  observing  that  the  cases  upon  the  question  of 
what  constitutes  an  actual  receipt  are  not  easily  reconcilable,  he  says 
(p.  28) :  "  There  can  be  no  question  that  an  actual  removal  of  the  goods 
by  the  purchaser  is  an  actual  receipt  by  him ;  and  when  the  goods  are  in 
the  hands  of  a  third  party,  it  is  pretty  clear  that  as  soon  as  the  vendor, 
the  purchaser,  and  the  bailee  agree  together  that  the  bailee  shall  cease 
to  hold  the  goods  for  the  vendor,  and  shall  hold  them  for  the  purchaser, 
that  is  an  actual  receipt  by  the  purchaser,  though  the  goods  themselves 
remain  untouched."  "  But,"  he  says,  after  referring  to  Bentall  v.  Burn, 
"  where  the  goods  are  in  the  custody  of  the  vendor  himself  or  his  imme- 
diate servants,  and  not  of  a  middleman,  there  is  a  difficulty ; "  and  that 
"  now  the  weight  of  authority  is  that  any  agreement  to  hold  as  agent  of 
the  vendor  must  be  very  distinctly  proved,  and  that  unless  the  vendor's 
lien  on  some  part  of  the  goods  be  gone  there  cannot  be  an  actual 
receipt."     In  Farina  v.  Home,^  Parke,  B.,  points  out  the  distinction 

1  3  B.  &  C.  423.  2  3  B.  &  Aid.  321. 

3  16  Mee.  &  W.  119 ;  s.  c.  16  Law  J.  Rep.  (n.  s.)  Exch.  73. 


SECT.    IV.]  CASTLE   V.    SWORDER.  259 

between  the  acceptance  of  goods  and  their  actual  receii)t  or  delivery  ; 
and  in  that  case  it  was  held  that  the  retention  of  a  delivery  warrant, 
altljough  evidence  of  the  acceptance,  was  no  evidence  of  the  delivery. 

[Martix,  B.     Hunt  v.  Ilecht  ^  is  directly  in  favor  of  the  defendant.] 

Yes.  In  Parker  v.  Wallis,^  referred  to  on  moving  for  the  rule,  there 
was  evidence  of  a  receipt  and  accejitance;  and  in  Marvin  v.  Wallis,  also 
cited  on  the  rule,^  there  was  a  transfer  and  a  re-lending. 

[Martin,  B.  Just  as  in  the  case  of  a  horse  sold  while  standing  at 
a  livery-stable,  there  may  be  no  change,  even  of  the  stall ;  but  al- 
though the  horse  remains,  he  remains  at  the  charge  of  the  vendee.] 

Yes. 

Ziush  and  JI.  T.  Cole,  in  support  of  the  rule.  It  is  clear  that  some 
of  the  cases  cannot  be  supported ;  it  is  necessary  therefore  to  revert  to 
the  words  of  the  17th  section  of  the  Statute  of  Frauds.*  The  contract 
for  the  sale  is  not  good  "  except  the  buyer  shall  accept  part  of  the  goods 
so  sold  and  actually  receive  the  same,  or  give  something  in  earnest  to 
bind  the  bargain,"  &c.  What  the  statute  requires  is,  not  evidence  of 
the  contract  being  performed,  but  that  it  has  been  made. 

[Martix,  B.  The  contention  for  the  defendant  is,  that  in  this  case 
there  was  no  actual  receipt;  that  is,  no  delivery  of  any  part.] 

The  transfer  of  the  name  in  the  books  of  the  bonded  warehouse  was 
equivalent  to  a  transfer  of  the  casks  to  another  warehouse.  Elmore  v. 
Stone,^  Morton  v.  Tibbett.^  There  is  no  diiference  between  this  case 
and  the  case  of  the  horse  sold  and  remaining  in  the  same  stall.  Blen- 
kinsop  V.  Clayton."  The  letter  of  the  defendant  is  evidence  of  an 
acceptance,  and  that  there  had  been  an  appropriation  to  his  use.  In 
Meredith  v.  Meigli,^  Crompton,  J.,  says  the  acting  as  owner  is  evidence 
of  an  acccjitance.  The  test  is,  whether,  supj^osing  the  jury  had  found 
for  the  plaintiffs,  the  court  would  set  aside  the  verdict  as  being  against 
the  evidence.  Hunt  v.  Ilecht  is  distinguishable,  for  there  the  defend- 
ant did  not  condescend  upon  the  particular  article  bought.  There  was 
no  specific  api)ropriation,  and  the  thing  handed  over  was  not  the  thing 
bought. 

[Bramwell,  B.  Suppose  the  defendant  had  said,  "  Take  the  goods 
to  the  warehouse  of  C,"  and  they  were  taken  ;  that  would  do.  Sup- 
pose, instead  of  that,  he  said,  "  Take  them  to  your  bonded  warehouse 
at  D.,"  and  they  were  taken ;  that  would  do.  Suppose  he  said,  "  Take 
them  to  your  room  below,"  that  would  do.  Suppose  he  said,  "  Move 
them  to  that  side  of  the  room,"  that  Avould  do.     What  is  the  differ- 

1  8  Excli.  Rep.  814 ;  s.  c.  22  Law  J.  Rep.  (n.  s.)  Exch.  293. 

2  5  E.  &  B.  2L 

3  6  E.  &  B.  726 ;  s.  c.  mm.  Marvin  v.  Wallace,  25  Law  J.  Rep.  (x.  s.)  Q.  B.  369. 

4  29  Car.  2,  c.  3.  5  i  Taunt.  458. 

6  15  Q  B.  Rep.  428;  s.  c.  19  Law  J.  Rep.  (n.  s.)  Q.  B.  382.  ^  7  Taunt.  597. 

8  2  E.  &  B.  364 ;  s.  c.  22  Law  J.  Rep.  (n.  s.)  Q.  B.  401. 


260  CASTLE   V.    SWORDER.  [CHAP.    I. 

ence  if  there  be  no  removal,  but  they  are  held  for  the  purchaser  in  the 
same  spot  ?] 

None.  It  would  have  been  sufficient  if  the  defendant  had  said 
to  the  traveller,  "  Tell  your  firm  to  mark  the  goods,  and  to  hold  them 
for  me." 

[Martin,  B.  To  make  the  vendor  the  agent  of  the  vendee  for 
the  delivery,  would  be  to  fritter  away  the  statute.  Let  it  be  re- 
pealed ;  but  as  long  as  it  exists  we  must  so  construe  it  as  to  give  effect 
to  it.] 

In  Marvin  v.  Wallis,  the  latest  case,  Lord  Campbell  in  the  course  of 
the  argument  says  :  "  A  delivery  to  the  vendee's  agent  would  do,  you 
admit.     May  not  the  vendor  be  such  agent  ?  " 

Martin,  B.   I  believe  we  are  all  of  opinion  that  this  rule  must  be  dis- 
charged.   It  seems  to  me  a  great  deal  Ijetter,  if  a  provision  in  a  statute 
is  objectionable,  to  give  that  fair  and  full  construction  which  it  naturally 
bears,  and  let  the  Legislature  interfere  to  set  right  whatever  may  be 
objectionable.     A  great  number  of  cases  have  been  cited,  but  I  do  not 
know  that  there  is  any  case  similar  to  this,  except  one.     It  may  be 
that  all  the  cases  are  right,  or  it  may  be  some  are  wrong;  but  in  this 
case,  for  the  purpose  of  fixing  this  defendant,  it  must  be  established 
that  he  "  accepted  and  actually  received  the  goods."     Those  are  the 
words  of  the  statute.     Now  it  does  seem  to  me  a  most  extraordinary 
thing  to  say  that  a  man  accepted  and  actually  received  goods  as 
vendee,  whilst  all  the  time  they  were  in  the  possession  of  the  vendors, 
and  whilst  they  had  a  right  to  them  until  the  defendant  paid  the 
price.      As   these   goods  were   sold  subject  to   the   payment  in   six 
months,  if  the  six  months  for  payment  elapsed,  though  the  defendant 
had  a  right  to  the  possession  of  the  goods  or  might  have  brought  an 
action  within  the  six  months,  nevertheless  it  is  clear  when  the  six 
months  elapsed  the  lien  would  revive.     It  seems  to  me  that,  whilst  the 
vendor  had  a  right  to  hold  possession  of  the  goods  for  the  price,  there 
cannot  possibly  be  an  actual  receipt  on  behalf  of  the  vendee.     This 
makes  all  tlie  difference  between  the  vendor  and  a  third  person.     If 
you  find  goods  in  the  hands  of  a  third  person,  the  question  is,  Avhose 
agent  is  he  ?     But  while  they  are  in  the  hands  of  the  vendor,  it  seems 
impossible  to  say  the  vendee  had  actually  received  the  goods,  because 
in  reality  they  are  in  the  possession  of  the  person  from  Avhom  he  was 
to  receive  them.     Now  the  case  of  the  livery-stable  keeper  is  much  the 
strongest  case  of  any.     In  reality,  that  man  filled  two  characters.     He 
was  a  vendor  and  a  livery-stable  keeper  who  kept  horses  for  persons  who 
employed  him ;  and  the  jury  found  the  fact  that  he  was  in  possession 
of  the  horse  on  behalf  of  the  vendee,  and  was  therefore  merely  in  pos- 
session as  a  livery-stable  keeper.     The  horse  was  standing  at  livery  for 
the  vendee,  and  there  was  no  lien.     Without  saying  that  any  of  the 
cases  cited  are  wrong,  it  seems  to  me  that  this  case  falls  directly  within 


SECT,    IV.]  CASTLE   V.    SWORDER.  261 

tlae  case  of  a  vendor  having;  a  lion  on  an  article  and  beini^  in  possession 
of  it.  All  the  vendor  did  was  to  make  an  entry  in  his  own  books ; 
but  he  might  have  kept  possession  of  the  goods  in  the  event  of  not 
being  paid.  It  is  said  that  the  correspondence  alters  the  matter.  But 
the  defendant's  request  that  the  goods  should  be  sold  is  quite  consist- 
ent with  his  never  having  had  possession.  No  doubt  he  thought 
he  was  liable  to  pay  for  the  goods,  and  in  eflcct  says :  "  Tell  me 
what  the  price  is,  and  I  will  pay  it."  If  the  verdict  had  been  found 
for  the  plaintiff  in  this  case,  I  should  have  said  it  ought  to  have  been 
set  aside  as  being  against  the  evidence. 

Channell,  B.  i  am  also  of  opinion  that  this  rule  ought  to  be  dis- 
charged, Mr.  Lush  does  not  contend  that  he  is  entitled  under  the 
leave  reserved  to  make  his  rule  absolute  on  the  notion  that  there  was  a 
scintilla  of  evidence  to  go  to  the  jury.  He  can  only  succeed  on  the 
supposition  that  there  was  such  evidence  as  would  fairly  warrant  them 
in  finding  that  there  had  been  an  acceptance.  I  am  of  opinion  that 
there  was  no  evidence  in  that  understanding  of  the  word.  It  seems  to 
me  that  whatever  the  rights  of  the  vendor  would  have  been  during 
the  currency  of  the  credit,  on  the  expiration  of  the  credit  he  acquired 
a  lien  upon  these  goods  for  the  price ;  and  under  those  circumstances  a 
jury  ought  not  to  find  that  there  had  been  an  actual  acceptance  and 
delivery  of  the  goods, 

Bramwell,  B.  I  am  of  the  same  opinion.  It  seems  to  me  that  in 
this  case  the  plaintiff  still  held  possession  of  the  goods  as  seller,  and 
not  as  agent  of  the  defendant.  I  do  not  mean  to  say  the  seller  may 
not  be  the  agent  of  the  buyer ;  but  the  truth  is  each  of  these  cases 
must  be  looked  at  according  to  its  own  particular  circumstances. 
Now  can  it  be  said  here  that  the  defendant  has  received  any  part  of 
these  goods?  Suppose,  after  the  appropriation  of  these  particular 
articles,  the  plaintiffs  had  re-sold  or  delivered  [sjc]  them,  and  then  the 
defendant  had  afterwards  brought  an  action  for  not  delivering  the 
goods,  would  the  now  plaintiffs  have  been  at  liberty  in  answer  to  say, 
"Yes,  we  did  deliver.  You  cannot  complain  of  that?"  The  present 
defendant  would  say,  "You  hold  the  goods  in  the  character  of  vendors, 
and  with  all  the  rights  and  obligations  of  vendors,  one  of  Avhich  is  to 
deliver;  therefore  I  am  entitled  to  sue  you."  I  agree  with  the 
observation  that  was  made  by  Lord  Campbell  in  Parker  v.  "Wallis,  that 
there  may  be  an  acceptance  and  receipt  of  goods  by  a  purchaser 
within  the  Statute  of  Frauds  even  though  he  has  done  nothing  to 
preclude  himself  from  objecting  that  they  did  not  correspond  with  the 
contract.  Suppose  I  order  a  certain  quantity  of  lime  to  be  taken  to  a 
farm,  and  I  am  not  there  to  object  and  nobody  else  is  there  to  object 
to  it :  I  shall  not  be  at  liberty  afterwards  to  say,  "  Those  goods  have 
not  been  accepted  and  received  by  me  ; "  they  have  been  as  much  as  it 
was  possible,  unless  I  had  chosen  to  be  there  to  make  objection.     So 


262  CASTLE   V.    SWORDER.  [CHAP.    T. 

on  the  other  hand,  if  I  go  to  a  shop  for  an  article  I  have  previously 
ordered,  and  it  is  delivered  to  me  wrapped  up,  though  I  cannot  see 
what  it  is  there  cannot  be  the  slightest  question  that  I  have  received 
and  accepted  the  goods  if  they  turn  out  to  be  in  conformity  Avith  the 
order ;  yet  nobody  can  say  that  I  shall  not  have  a  right  to  object  to 
them  afterwards  if  they  are  not  in  conformity  with  the  contract.     You 
cannot  therefore  lay  down  any  rule  universally  apjilicable ;  although  I 
agree  with  the  observations  of  the  Lord  Chief  Justice  of  the  Queen's 
Bench  that  there  may  be  a  receipt  and  acceptance  without  the  vendor 
having  precluded  himself  from  objecting  to  the  quality  of  the  goods. 
I  think  however  that  it  is  a  good  general  rule  or  test  that  there  must 
be  such  an  acceptance  and  delivery  as  would  give  the  party  an  oppor- 
tunity at  all  events  of  judging  whether  they  are  what  they  profess, 
and  of  examining   them   in  the  sense  in  which  an   examination   is 
needed.      But  you  must  ascertain  in  each  particular  case  when  the 
duty  of  examining  arises  or  when  the  duty  of  availing  yourself  of  the 
opportunity  arises.     To  put  again  the  case  of  lime  being  placed  on  my 
farm :  if  I  want  to  avail  myself  of  the  right  of  objecting  wholly  to  it, 
I  ought  to  be  there  at  the  time  it  is  delivered  and  make  an  objection. 
Now  when  ought  the  defendant  to  have  made  an  objection  that  the 
goods  were   not   in    confomiity  with   the   order?     Not  at  any  time 
during  the  six  months,  but  at  the  time  it  was  his  duty  to  take  and  pay 
for  them.     If  that  is  so,  then  it  seems  to  me  there  can   have  been 
no  delivery  or  acceptance  within  the   Statute  of  Frauds,  because  I 
think  the  general  test  is  a  good  one  ;  and  although  I  agree  with  the 
•qualification  put  upon  it  by  the  Court  of  Queen's  Bench,  yet  I  think 
that   that   qualification    only  applies  with   such  further   qualification 
upon  it  as  I  have  mentioned ;  that  is  to  say,  at  all  events  the  vendee 
must  have  had  the  opportunity  if  he  chose  to  avail  himself  of  it,  and 
that  opportunity  could  only  be  properly  said  to  occiir  when  it  was  his 
duty  under  the  contract  either  to  object  or  to  actually  receive.     Now 
in  this  case,  as  I  think  there  was  no  duty  or  obligation  to  take  them 
away  at  any  time  within  the  six  months,  there  was  no  receipt  and 
acceptance  of  the  goods.     As  to  the  fact  of  his  having  dealt  with  the 
goods  as  owner,  that  I  think  is  a  matter  of  indifference  for  this  reason : 
supposing  there  had  been  no  specific  apiJropi'iation  the  same  propo- 
sition might  have  been  made  by  the  defendant  to  the  plaintiffs.     He 
might  equally  as  well  have  said,  "Take  back  your  goods  at  the  now 
market  price."     I  think   therefore  the  rule  ought  to  be  discharged. 
There  is,  and  always  will  be  as  long  as  the  statute  exists,  a  great  diffi- 
culty in  drawing  the  line ;  but  I  think  this  case  is  on  the  side  of  the 
line  which  is  favorable  to  the  defendant.  JRule  discharged. 

The  plaintiffs  having  appealed  fi'om  the  foregoing  decision, 

H.  T.  Cole,  for  the  plaintiffs  (the   appellants),  contended,  as  in  the 


SECT.    IV.]  CASTLE    V.    SWORDER.  2G3 

Court  of  Exchequer,  that  there  was  evidence  for  the  jury  of  a  con- 
structive acceptance  and  receipt  of  the  pjoods,  and  that  the  keeping 
the  invoice  by  the  defendant  and  his  offers  to  sell  the  goods  was  a 
dealing  with  the  property  as  his  own,  and  was  evidence  of  an  accept- 
ance by  him;  that  after  the  transfer  by  the  plaintiffs  of  the  specific 
articles  in  the  rum  and  brandy  books  by  which  they  had  lost  all 
power  over  them,  and  their  position  had  been  altered,  they  held  the 
goods  no  longer  in  their  character  of  vendors,  but  as  warehousemen 
and  as  agents  for  the  defendant ;  and  that,  if  so,  there  was  an  accept- 
ance by  the  defendant,  though  he  might  not  have  lost  the  right  of 
objecting  that  the  goods  were  not  according  to  the  contract ;  that  the 
goods  being  sold  on  credit  the  vendors  had  no  lien  for  the  price,  at 
any  rate  during  the  first  six  months  in  which  the  credit  was  running ; 
and  he  urged  that  there  was  no  authority  for  the  proposition  asserted 
by  the  court  below,  that  the  vendors  would  acquire  a  lien  for  the  price 
from  the  fact  of  having  them  in  their  Avarehouse  after  the  credit  had 
expired ;  and  that,  even  if  they  would,  it  was  immaterial,  as  the 
acceptance  by  the  defendant  took  place  within  the  first  six  months. 

Welsby,  for  the  defendant  (the  respondent),  urged,  as  in  the  court 
below,  that  there  was  neither  an  acceptance  nor  receipt  of  the  goods 
so  as  to  bind  the  defendant ;  that  the  existence  of  the  vendors'  lien 
was  a  conclusive  test  that  there  had  been  jio  acceptance  ;  that  though 
the  goods  were  sold  on  credit,  the  lien  of  the  plaintiffs,  the  vendors, 
which  was  suspended  during  the  time  of  the  credit,  revived  afterwards, 
the  goods  having  remained  in  the  plaintiffs'  possession ;  and  in  answer 
to  a  doubt  thrown  out  by  Cockburn,  C.  J.,  whether  any  such  lien 
existed  in  a  case  of  goods  so  sold  on  credit,  he  referred  to  New  v. 
Swain.^  He  contended  also  that  the  transfer  in  the  books  which  was 
not  communicated  to  the  defendant,  though  it  prevented  the  plain- 
tiffs' getting  the  goods  out,  did  not  transfer  the  possession  of  them  to 
the  defendant ;  and  that  the  letters  of  the  defendant  were  not  equiva- 
lent to  an  act  of  ownership,  and  that  there  was  in  no  case  an 
acceptance  until  the  purchaser  had  exercised  his  option  of  taking  to 
the  goods  or  done  something  which  precluded  him  from  objecting  to 
them. 

In  addition  to  the  cases  cited  below,  the  following  cases  were  re- 
ferred to  in  the  argument:  Chaplin  v.  Rogers,"^  Bushel  v.  Wheeler,^ 
Currie  v.  Anderson,^  Beaumont  v.  Brengeri,^  Carter  v.  Toussaint,®  and 
Tempest  v.  Fitzgerald.'^ 

CocKnuRX,  C.  J.  I  am  of  opinion  that  the  judgment  of  the  Court 
of  Exchequer  must  be  reversed,  and  that  judgment  must  be  given  for 

1  Danson  &  Lloyd's  Merc.  Cas.  193. 

2  1  East,  192.  3  16  Q.  B.  Rep.  442,  note. 
*  29  Law  Journ.  Rep.  (n.  s.)  Q.  B.  87.                »  5  Com.  B.  Rep.  301. 

6  5  B.  &  Aid.  855.  ^  3  B.  &  Aid.  680. 


264  CASTLE  V.    SWORDER.  [CHAP.   T. 

the  plantiffs.  It  appears  to  me  that  the  question  is  not  how  the  jury- 
would  have  found,  had  this  question  been  left  to  them  as  a  question  of 
fact,  but  whether  there  was  any  evidence  to  go  to  the  jury  of  accept- 
ance and  receipt  by  the  defendant  sufficient  to  satisfy  the  Statute  of 
Frauds.  I  think  that  there  was  such  evidence.  It  apj^ears  that  the 
defendant  entered  into  a  contract  with  the  plaintiffs'  traveller  to  buy 
the  brandy  and  rum.  The  defendant  was  to  have  the  right  of  taking 
them  when  he  thought  fit,  and  in  the  mean  time  the  goods  were  to 
remain  in  the  warehouse  of  the  plaintiffs,  the  sellers,  for  six  months 
without  payment,  and  after  that  period  subject  to  payment  of  rent.  It 
appears  that  the  plaintiffs  had  a  warehouse,  in  which  they  kept  not 
only  their  own  goods,  but  the  goods  of  other  people.  The  plaintiffs 
appropriated  to  the  defendant  certain  specified  puncheons  and  hogs- 
heads, and  sent  hiin  an  invoice  denoting  that  the  particular  goods  had 
been  so  appropriated.  After  this  the  defendant  proposed  to  the  plain- 
tiffs' traveller  that  they  should  take  the  goods  back,  and  wrote  to  the 
plaintiffs  to  the  same  effect.  The  question  is,  whether  on  these  facts 
there  Avas  evidence  for  the  jury  of  a  consti'uctive  acceptance  by  the 
defendant.  The  important  particular  that  occurs  in  many  cases  of  a 
lien  in  the  vendors,  which  necessarily  imported  a  right  of  possession 
in  them  incompatible  with  a  right  of  possession  by  the  buyer,  does  not 
exist  in  this  case ;  for  for  six  months  the  buyer  was  entitled  to  claim 
the  immediate  delivery  of  the  specific  goods  appropriated  to  him. 
The  question  then  arises,  whether  the  possession  which  actually  re- 
mained in  the  sellers  was  a  possession  in  the  sellers  by  virtue  of  their 
original  property  in  the  goods,  or  whether  it  had  become  a  possession 
as  agents  and  bailees  of  the  buyer ;  if  the  latter,  there  was  a  construc- 
tive possession,  and  through  it  a  constructive  acceptance  by  the  buyer. 
There  was  evidence  in  my  opinion  that  the  possession  of  the  plaintiffs 
had  been  converted  into  a  possession  as  agents  for  the  buyer.  For 
when  the  buyer  found  that  the  goods  had  been  appropriated  to  him,  he 
availed  himself  of  the  right  to  have  the  goods  Avarehoused  in  the 
general  warehouse  of  the  seller;  and  he  dealt  with  the  goods  as  his 
own,  first,  in  the  request  that  the  sellers  would  take  back  the  goods, 
and,  failing  in  that  request,  in  asking  the  plaintiffs  to  sell  the  goods  for 
him.  Instead  of  repudiating  the  goods  at  the  time  the  invoice  was 
sent,  he  dealt  with  the  goods  as  though  they  had  been  warehoused  and 
kept  in  the  warehouse  as  his  goods  and  on  his  behalf.  This  construc- 
tive possession  would  amount  to  a  constructive  acceptance  by  the 
buyer.  It  is  unnecessary  to  consider  whether,  if  the  goods  had  turned 
out  inconsistent  with  the  contract,  he  might  have  rejected  them  ;  for  if 
a  man  chooses  to  Avaive  the  right  of  inspection,  he  loses  the  opportunity 
of  exercising  it.  Here  the  defendant  did  not  desire  to  exercise  that 
right  and  privilege  of  a  buyer :  he  was  content  that  the  goods  should 
remain  there;  and  therefore  the  difficulty  that  might  present  itself  in 


SECT.  IV.]  CASTLE   V.    SWORDER.  265 

some  cases  does  not  arise  here.  A  man  may  waive  his  riglit  of  ex- 
amination, and  trust  to  his  action  if  the  goods  are  inconsistent  with  the 
contract.  I  do  not  say  how  the  jury  ought  to  have  found  ;  but  I  am 
clearly  of  opinion  that  there  was  evidence  for  them. 

Cromptox,  J.  I  am  of  the  same  opinion.  The  only  question  in 
the  court  beloAv  and  for  us  is,  Avhether  there  was  any  evidence  to  go 
to  the  jury  to  make  out  a  case  for  the  plaintiffs.  If  there  was,  the 
parties  have  agreed  as  to  the  amount  for  which  the  verdict  should  be 
entered.  We  do  not  differ  from  the  Court  of  Exchequer  except  in  this, 
that  there  was  some  evidence  that  the  character  of  the  plaintiffs  was 
changed  from  that  of  vendors  to  warehouse-keepers.  I  think  there 
was  evidence  that  there  was  an  actual  receii)t  by  the  defendant.  Ac- 
cording to  the  authorities  there  may  be  such  a  change  of  character  in 
the  seller  as  to  make  him  the  agent  of  the  buyer,  so  that  the  buyer 
may  treat  the  possession  of  the  seller  as  his  own.  I  think  there  was 
evidence  here  that  the  defendant  had  so  accepted  these  goods  as  to 
have  admitted  that  they  were  the  goods  he  was  to  receive  under  the 
contract.  I  do  not  think  he  had  a  right  to  reject  the  goods  as  not  being 
under  the  contract,  though  he  might  have  had  a  remedy  by  action  if 
the  goods  had  been  inferior  to  what  was  agreed.  When  a  man  keeps 
a  warehouse,  the  character  of  seller  may  well  change  into  that  of 
warehouse-keeper;  and  when  he  becomes  a  bailee  of  the  buyer  his 
character  is  changed.  When  goods  are  in  the  hands  of  a  warehouse- 
keeper  for  the  seller,  the  mere  giving  a  transfer  order  by  the  seller  is 
not  sufficient  to  change  the  possession ;  but  when  the  delivery  order  is 
lodged  with  the  warehouse-keeper  and  accepted  by  him,  he  then  holds 
in  future  for  the  buyer,  and  any  objection  under  the  Statute  of  Frauds 
is  then  at  an  end.  Here  the  same  party  is  the  seller  and  warehouse- 
keeper;  and  here  there  was  some  evidence  of  such  a  change.  Suppose 
the  plaintiffs  had  been  negligent  as  warehouse-keepers,  it  would  have 
been  impossible  for  them  to  say  that  they  were  not  warehouse-keepers. 
The  ground  upon  which  I  come  to  the  conclusion  that  there  was  a  case 
for  the  jury  is,  that  under  the  circumstances  the  defendant  had  made 
declarations  and  written  letters,  by  Avhich  it  appears  that  he  acquiesced 
in  the  jdaintiffs  becoming  his  agents.  The  plaintiffs  clearly  ujipropriate 
the  particular  puncheons  by  their  invoice.  The  defendant  keeps  the 
invoice,  and  may  be  supposed  to  have  assented  to  it,  but  the  invoice 
goes  on  to  say  the  goods  are  to  remain  free  for  a  certain  time.  This  is 
evidence  that  the  plaintiffs  Avould  keep  the  goods  as  warehouse-keepers 
for  a  certain  time  free  of  charge.  Then  is  there  any  evidence  of  assent 
to  this  by  the  defendant  ?  There  is  a  distinct  request  to  the  jilaintiffs' 
clerk  by  the  defendant  to  sell  the  goods  for  him.  He  also  wrote  to  the 
plaintiffs  to  the  same  effect,  and  says,  "  What  will  you  give  me  for  the 
rum?"  When  you  couple  this  with  the  fact  that  the  jdaintiffs  were 
warehouse-keepers  as  well  as  sellers,  when  you  consider  the  evidence 


266  CUSACK    V.    ROBINSON.  [CHAP.    I. 

as  to  the  entry  in  the  rum  and  brandy  books,  and  that  the  plaintiffs 
could  not  get  the  goods  out  again  after  that  entry,  there  is  to  my  mind 
evidence  that  the  plaintiffs'  character  had  changed.  The  defendant 
could  not  say  that  was  not  the  property  that  passed  under  the  contract : 
he  could  not  reject  it,  though  he  might  have  brought  an  action  if  it  did 
not  agree  with  the  contract. 

WiLLES,  J.,  Byles,  J.,  and  Keating,  J.,  concurred. 

Judgment  reversed. 


CUSACK   AND  Others  v.   ROBINSON. 
In  the  Queen's  Bench,  May  25,  1861. 

[Reported  in  1  Best  ^  Smith,  299.] 

Declaration  for  goods  sold  and  delivered,  and  goods  bargained 
and  sold.  Plea,  never  indebted.  At  the  trial  before  Blackburn,  J.,  at 
the  Liverpool  winter  assizes  in  1860,  it  appeared  that  the  defendant, 
who  Avas  a  London  merchant,  on  the  24th  October,  1860,  at  Liverpool 
called  on  the  plaintiffs,  who  are  importers  of  Canadian  produce,  and 
said  he  Avanted  to  buy  from  150  to  200  firkins  Canadian  butter.  He 
then  went  with  one  of  the  plaintiffs  to  their  cellar,  where  he  was  shewn 
a  lot  of  156  firkins  of  butter,  "  ex  Bohemian,"  belonging  to  the  plaintiffs, 
which  he  then  had  the  opportunity  of  inspecting,  and  in  fact  he  did 
open  and  inspect  six  of  the  firkins  in  that  lot.  After  that  examination, 
they  went  to  another  cellar  to  see  other  butter,  which  however  did 
not  suit  the  defendant.  At  a  later  period  of  the  same  day  the  plain- 
tiffs and  the  defendant  made  a  verbal  agreement  by  which  the  defendant 
agreed  to  buy  that  specific  lot  of  156  firkins  at  77s.  per  cwt.  When 
the  price  had  been  agreed  on,  the  defendant  took  a  card  on  which  his 
name  and  address  in  London  were  written,  "Edmund  Robinson,  1 
Wellington  Street,  London  Bridge,  London,"  and  wrote  on  it  "  156 
firkins  butter  to  be  delivered  at  Fenning's  Wharf,  Tooley  Street."  He 
gave  this  to  the  plaintiffs,  arid  at  the  same  time  said  that  his  agents 
Messrs.  Clibborn,  at  Liverpool,  would  give  directions  how  the  goods 
were  to  be  forwarded  to  Fenning's  Wharf.  The  plaintiffs  by  Clib- 
born's  directions  delivered  the  butter  to  Pickford's  carts  to  be  for- 
warded to  the  defendant  at  Fenning's  Wharf.  The  plaintiffs  sent  an 
invoice  dated  the  25th  October,  1860,  to  the  address  on  the  defendant's 
card.  They  received  in  answer  a  letter  purporting  to  come  from  a 
clerk  in  the  defendant's  office,  acknowledging  the  receipt  of  the  invoice, 
and  stating  that  on  the  defendant's  return  he  would  no  doubt  attend 
to  it.     There  was  no  evidence  that  the  writer  of  this  letter  had  any 


SECT.    IV.]  CUSACK    V.    ROBINSON.  267 

authority  to  sipfn  a  memorandum  of  a  contract.  On  the  27th  October 
the  jilauitiffs  in  Liverpool  received  a  telegram  from  the  defendant  in 
London,  in  effect  asserting  that  the  butters  had  been  sold  by  the  plain- 
tiffs subject  to  a  waiTanty  that  they  were  equal  to  a  sample,  but  that 
they  were  not  equal  to  sample,  and  therefore  would  be  returned.  The 
plaintiffs  replied  by  telegram  that  there  was  no  such  warranty,  an.l 
they  must  be  kept.  A  clerk  at  Fenning's  Whaif  proved  that  Messrs. 
Fenning  stored  goods  for  their  customers,  and  had  a  butter  ware- 
house ;  that  the  defendant  had  used  the  warehouse  for  fifteen  years, 
and  was  in  the  habit  of  keeping  his  butters  there  till  he  sold  them. 
On  the  26th  October  Pickford  &  Co.  had  delivered  a  part  of  the  156 
firkins  in  question  at  the  warehouse,  and  delivered  the  residue  on  the 
morning  of  the  27th  October.  The  witness  could  not  say  whether  any 
one  came  to  inspect  them  or  not,  but  he  proved  that  they  were  deliv- 
ered up  by  Fenning  to  Pickford  &  Co.  under  a  delivery  order  from 
the  defendant  dated  27th  October.  The  defendant's  counsel  admitted 
that  it  must  be  taken  that  the  sale  was  not  subject  to  any  warranty  ; 
but  objected  that  the  price  of  the  goods  exceeded  £10,  and  that  there 
was  nothing  proved  to  satisfy  the  requisitions  of  the  Statute  of  Frauds. 
The  verdict  was  entered  for  the  plaintiffs  for  £420  10s.  Id.,  ^ath  leave 
to  the  defendant  to  move  to  enter  a  nonsuit,  if  there  was  no  evidence 
proper  to  be  left  to  the  jury  either  of  a  memorandum  of  the  contract 
or  of  an  acceptance  and  actual  receipt  of  the  goods. 

In  Hilary  term,  18G1,  Edward  James  obtained  a  rule  nisi  accordingly, 
citing  Nicholson  v.  Bower,^  which  rule  was  argued  at  the  sittings  in 
banc  after  Easter  term,  on  the  9th  May,  before  Hill  and  Blackburn,  JJ. 

Mellish  and  Quahi  shewed  cause.  It  must  be  conceded  on  the  part 
of  the  plaintiffs  that  there  was  no  memorandum  of  a  contract  in  writ- 
ing to  satisfy  the  17th  section  of  the  Statute  of  Frauds,  29  Car.  2,  c.  3, 
which  enacts  [stating  it].  The  card  which  the  defendant  delivered  to 
the  plaintiffs  is  insufficient  for  that  purpose,  as  it  does  not  contain  the 
names  of  both  parties  to  the  contract,  neither  does  it  state  the  price  at 
which  the  butter  was  to  be  sold. 

But  there  is  evidence  of  an  acceptance  and  actual  receipt  of  the 
goods  Avithin  the  meaning  of  the  statute.  A  very  important  fact  in 
the  case  is,  that  the  sale  was  a  sale  of  a  specific  lot  of  156  firkins  of 
butter,  and  also  that  there  was  a  verbal  contract  for  the  sale  of  the 
butter  which  was  valid  at  common  law,  and  the  vendee  gave  direc- 
tions that  it  should  be  sent  to  him  at  Fenning's  Wharf  As  the 
defendant  was  in  the  habit  of  using  Fenning's  Wharf  as  his  warehouse, 
his  ordering  certain  specific  goods  to  be  taken  there,  and  they  being 
taken  there  by  his  direction  and  warehoused  in  the  manner  goods 
received  on  his  account  were  usually  warehoused,  vested  the  goods  in 
his  actual  possession.     If  the  goods  are  in  the  vendee's  actual  posses- 

1  1  E.  &  E.  172. 


268  CUSACK   V.    ROBINSON.  [CHAP.    I. 

sion,  then  the  vendor's  right  of  lien  for  the  price  is  destroyed.  Suppose, 
instead  of  directing  the  goods  to  Fenning's  Wharf,  the  defendant  had 
directed  them  to  his  own  warehouse ;  surely  that  would  have  been 
ample  evidence  of  an  acceptance  and  actual  receipt  to  satisfy  the 
statute.  There  is  a  distinction  between  the  cases  of  a  purchase  of 
specific  goods,  and  of  goods  which  are  in  bulk  and  not  ascertained. 
Suppose  a  man  goes  into  a  shop  and  says,  "  I  buy  that  chattel ;  send  it 
to  such  a  place,  or  give  it  to  a  porter,"  and  afterwards  receives  it  and 
exercises  an  act  of  dominion  over  it,  he  has  done  every  thing  the  stat- 
ute requires  to  constitute  an  acceptance  and  receipt.  At  one  time  it 
was  doubted  whether,  in  order  to  satisfy  this  clause  in  the  statute,  the 
acceptance  might  not  follow  the  delivery ;  but  that  doubt  has  been 
removed  by  Morton  v.  Tibbett,^  where  this  court  decided  that  the 
acceptance  must  precede  or  be  contemporaneous  with  the  delivery. 
That  case  is  also  an  authority  to  shew  that  the  fact  of  the  vendee 
having  dealt  with  the  goods  as  owner  is  evidence  of  an  acceptance 
and  receipt.  Here  after  a  contract  respecting  these  goods,  which  was 
binding  at  common  law,  had  been  entered  into,  the  defendant  exercised 
an  act  of  dominion  over  them  by  ordering  them  to  be  sent  to  Fenning's 
Wharf  and  to  be  warehoused  there  for  him. 

In  Elmore  v.  Stone  ^  the  defendant  purchased  two  horses  under  a 
verbal  agreement  from  the  plaintifi",  and  desired  the  plaintiff,  who  was 
a  livery-stable  keeper,  to  keep  the  horses  at  livery  for  him,  which  the 
plaintiff  agreed  to  do.  The  Court  of  Common  Pleas  held  that  there 
was  sufficient  evidence  of  a  delivery  within  the  statute.  Chaplin  v. 
Rogers  ^  decided  that  where  a  vendee  after  a  bargain  and  sale  by  parol 
deals  with  goods  as  if  they  were  in  his  actual  possession,  such  an  act  of 
ownership  is  evidence  of  a  receipt  and  acceptance  by  the  vendee.  In 
Hart  V.  Bush  *  this  court  held  that  a  delivery  of  goods  by  the  vendor 
to  a  wharfinger  appointed  by  the  vendee,  to  be  forwarded  by  any 
vessel  to  the  vendee,  would  not  constitute  an  acceptance  and  receipt 
under  the  statute  ;  but  that  case  is  distinguishable  for  two  reasons, 
first  that  the  sale  was  not  one  of  specific  goods,  and  next  the  direction 
given  by  the  vendee  to  the  vendor  was  that  the  goods  were  to  be  sent 
to  him  by  sea  from  a  place  called  Griffin's  Wharf,  London.  The  facts 
were  that  they  were  forwarded  from  Griffin's  Wharf  in  a  ship  selected 
by  the  wharfinger,  and  lost  before  they  reached  their  destination. 

Nicholson  v.  Bower,^  which  was  cited  when  the  rule  was  moved,  will 
probably  be  relied  on  by  the  other  side ;  but  in  that  case  the  vendee 
purposely  suspended  the  acceptance  because  he  was  in  insolvent  cir- 
cumstances, Meredith  v.  Meigh  ^  may  perhaps  also  be  relied  on ;  but 
there  the  goods  sold  were  not  specific  goods ;  the  delivery  of  them  on 

1  15  Q.  B.  428.  2  1  Taunt.  458. 

8  1  East,  192.  4  E.  B.  &  E.  494. 

5  1  E.  &  E.  172.  «  2  E.  &  B.  364, 


SECT.    IV.]  CUSACK    V.    ROBINSON.  269 

board  a  ship  selected  by  the  vendor  tlierefore  could  in  no  way  amount 
to  an  acceptance  and  receipt  by  tlie  vendee. 

Millward,  in  supi^oi't  of  the  nde.  The  defendant  never  exercised 
such  an  act  of  ownership  over  the  goods  as  would  constitute  an  accept- 
ance and  actual  receipt  within  the  meaning  of  the  Statute  of  Frauds. 
In  Chaplin  v.  Rogers  ^  the  vendee  had  sold  the  goods  to  a  third  person, 
wdiich  was  an  unequivocal  act  of  dominion.  It  is  true  that  in  the 
present  case  the  defendant  ordered  the  goods  to  be  sent  to  Fenning's 
Wharf;  but  all  that  can  be  inferred  from  that  act  is  that  the  warehouse 
at  Fenning's  Wharf  was  the  defendant's  warehouse  for  the  purpose  of 
acceptance.  Hunt  v.  Hecht-  is  an  express  authority  that  unless  the 
vendee  has  an  opportunity  of  judging  whether  the  goods  sent  corre- 
spond with  those  ordered,  there  can  be  no  acceptance  and  receipt  within 
the  statute. 

There  is  no  distinction  between  specific  goods  and  goods  which  are 
not  ascertained.  In  Baldey  v.  Parker^  the  defendant  bought  certain 
goods,  some  of  which  were  measured  in  his  presence,  some  of  which  he 
marked  with  a  pencil,  and  some  of  which  he  assisted  in  cutting  from  a 
larger  bulk.  Afterwards  when  the  goods  were  sent  to  his  house  he 
refused  to  accept  them,  and  the  court  held  that  there  was  no  acceptance 
and  receijit  to  satisfy  the  statute.  So  in  Farina  v.  Home^  the  vendee's 
acceptance  of  a  delivery  w\arrant,  given  by  a  wharfinger  with  whom  the 
goods  had  been  warehoused,  was  held  to  be  no  evidence  of  a  delivery 
and  acceptance  of  goods. 

Whether  thei-e  can  be  an  acceptance  before  delivery  of  goods 
under  this  section  of  the  Statute  of  Frauds  was  raised  in  Saunders 
V.  Topp.^  In  that  case  however  it  was  not  necessary  to  decide  the 
question,  because  there  was  evidence  of  an  acceptance  after  deliv- 
ery ;  but  the  judges  of  the  Court  of  Exchequer  seemed  to  be  of 
opinion  that  there  could  not  be  an  acceptance  prior  to  the  receipt. 
[Hill,  J.  A  bargain  and  sale  between  vendor  and  vendee,  valid 
in  all  respects  except  for  the  Statute  of  Frauds ;  goods  sent  by 
vendor,  under  the  direction  of  vendee,  to  warehouse-keeper  selected 
and  nominated  by  vendee ;  vendor  parted  with  his  lien,  and  the 
transitus  at  an  end.  Do  these  facts  constitute  an  acceptance  and 
actual  receipt  within  the  meaning  of  the  17th  section  of  the  Statute  of 
Frauds  ?]  Cur.  adv.  vidi. 

The  judgment  of  the  court  was  now  delivered  by 

Blackijukn,  J.  (After  fully  stating  the  facts  his  Lordshij)  i)roceeded.) 
It  was  not  contended  that  there  was  any  sutficient  memorandum  in 
writing  in  the  present  case ;  but  it  Avas  contended  that  there  was  suffi- 
cient evidence  that  the  defendant  had  accepted  the  goods  sold  and 
actually  received  the  same ;  and  on  consideration  we  are  of  that  opinion. 

1  1  East,  192.  2  8  Exch.  814.  3  2  B.  &  C.  37. 

*  16  M.  &  W.  119.  5  4  Exdi.  390. 


270  /  CUSACK   V.    ROBINSON.  [CHAP.    T. 

The  words  of  tlie  statute  are  express  that  there  must  be  an  accejit- 
ance  of  the  goods  or  part  of  them,  as  well  as  an  actual  receipt ; 
and  the  authorities  are  very  numerous  to  shew  that  both  these  re- 
quisites must  exist,  or  else  the  statute  is  not  satisfied.  In  the 
recent  case  of  Nicholson  v.  Bower,^  Avhich  was  cited  for  the  defendant, 
141  quarters  of  wheat  were  sent  by  a  railway,  addressed  to  the 
vendees.  They  arrived  at  their  destination,  and  were  there  ware- 
housed by  the  railway  company  under  circumstances  that  might  have 
been  held  to  put  an  end  to  the  unpaid  vendor's  rights.  But  the  con- 
tract was  not  originally  a  sale  of  specific  wheat,  and  the  vendees  had 
never  agreed  to  take  those  particular  quarters  of  wheat :  on  the  con- 
trary it  was  shewn  to  be  usual,  before  accepting  wheat  thus  warehoused, 
to  compare  a  sample  of  the  wheat  with  the  sample  by  which  it  was 
sold  ;  and  it  appeared  that  the  vendees,  knowing  that  they  were  in 
embarrassed  circumstances,  purposely  abstained  from  accepting  the 
goods;  and  each  of  the  judges  mentions  that  fiict  as  the  ground  of 
their  decision.  In  Meredith  v.  Meigh  -  the  goods,  which  were  not  speci- 
fied in  the  original  contract,  had  been  selected  by  the  vendor  and  put 
on  board  ship  by  the  directions  of  the  vendee,  so  that  they  were  in 
the  hands  of  a  carrier  to  convey  them  from  the  vendor  to  the  vendee. 
It  was  there  held,  in  conformity  with  Hanson  v.  Aniiitage,^  that  the  car- 
rier, though  named  by  the  vendee,  had  no  authority  to  accept  the 
goods.  And  in  this  we  quite  agree ;  for  though  the  selection  of  the 
goods  by  the  vendoi*,  and  putting  them  in  transit,  would  but  for 
the  statute  have  been  a  sufiicient  delivery  to  vest  the  property  in  the 
vendee,  it  could  not  be  said  that  the  selection  by  the  vendor,  or  the 
receipt  by  the  carrier,  was  an  acceptance  of  those  particular  goods  by 
the  vendee. 

In  Baldey  v.  Parker,*  which  was  much  relied  on  by  Mr.  Millward 
in  arguing  in  support  of  this  rule,  the  ground  of  the  decision  was  that 
pointed  out  by  Holroyd,  J.,  who  says  (p.  44) :  "  Upon  a  sale  of  spe- 
cific goods  for  a  specific  price,  by  parting  with  the  possession  the  seller 
parts  with  his  lien.  The  statute  contemplates  such  a  parting  with  the 
possession ;  and  therefore  as  long  as  the  seller  preserves  his  control 
over  the  goods  so  as  to  retain  his  lien,  he  prevents  the  vendee  from 
accepting  and  receiving  them  as  his  OAvn  within  the  meaning  of  the 
statute."  The  principle  here  laid  down  is,  that  there  cannot  be  an 
actual  receipt  by  the  vendee  so  long  as  the  goods  continue  in  the  pos- 
session of  the  seller  as  unpaid  vendor  so  as  to  preserve  his  lien ;  and 
it  has  been  repeatedly  recognized.  Biit  though  the  goods  remain  in 
the  personal  possession  of  the  vendor,  yet  if  it  is  agreed  between  the 
vendor  and  the  vendee  that  the  possession  shall  thenceforth  be  kept, 
not  as  vendor,  but  as  bailee  for  the  purchaser,  the  right  of  lien  is 

1  1  E.  &  E.  172.  2  2  E.  &  B.  364. 

3  5  B.  &  Aid.  557.  *  2  B.  &  C.  37. 


SECT.    IV.]  CUSACK   V.    ROBINSON.  271 

gone,  and  then  there  is  a  sufticient  receipt  to  satisfy  the  statute.  Mar- 
vin V.  Wallis/  Beaumont  v.  Brcugeri.^  In  Ijotli  of  tliese  cases  the 
specific  chattel  sold  was  ascertahied,  and  there  appear  to  have  been 
acts  indicating  acceptance  subsequent  to  the  agreement  which  changed 
the  nature  of"  the  possession. 

In  the  present  case  tliere  was   anii)le  evidence  that  the  goods  when 
pLaced  in  Fenning's  Wharf  were  put  under  the  control  of  the  defend- 
ant to  await  his  further  directions,  so  as  to  put  an  end  to  any  right 
of  the   plaintiffs    as    unpaid  vendors,  as  much  as  the  change  in  the 
nature  of  the  possession  did  in  the  cases  cited.     There  was  also  suffi- 
cient evidence   that   the    defendant   had  at   Liverpool  selected  these 
specific  15G  firkins  of  butter  as  those  which  he  then  agreed  to  take 
as  his  property  as  the  goods  sold,  and  that  he  directed  those  specific 
firkins  to  be  sent   to    London.      This  Avas   certainly  evidence  of  an 
acceptance ;  and  the  only  remaining  question  is,  whether  it  is  neces- 
sary that  the  acceptance  should  follow  or  be  contemporaneous  with 
the  receipt,  or  whether  an  acceptance  before  the  receipt  is  not  suffi- 
cient.     In  Saunders  v.  Topp,^  Avhich  is  the  Case  in  which  the  facts 
approach  nearest  to  the  present  case,  the  defendant  had,  according  to 
the  finding  of  the  jury,  agreed  to  buy  from  the  plaintifl;' forty-five  couple 
of  sheep,  which  the  defendant,  the  i)urchaser,  had  himself  selected,  and 
the  plaintift'  had  by  his  directions  i)ut  them  hi  the  defendant's  field. 
Had  the  case  stopi)ed  there,  it  would  have  been  identical  with  the 
present.     But  there  was  in  addition  some  evidence  that  the  defendant, 
after  seeing  them  in  the  field,  counted  them,  and  said  it  was  all  right ; 
and  as  this  was  some  evidence  of  an  acceptance  after  the  receipt,  it 
became   unnecessary   to   decide   whether   the    acceptance    under   the 
statute   must  follow   the    delivery.      Parke,   B.,   from   the   report   of 
his  observations  during  the  argument,  seems  to  have  attached  much 
importance  to   the   selection   of  particular   sheep  by  the  defendant; 
but  in  his  judgment  he  abstains  from  deciding  on  that  ground,  though 
certainly  not   expressing   any  opinion  that   the   accejitance    must  be 
subsequent   to   the   delivery.      The    other   three   Barons  —  Alderson, 
Rolfe,  and  Piatt  —  express  an  inclination  of  opinion  that  it  is  neces- 
sary under  the  statute  that  the  acceptance  should  be  subsequent  to 
or   contemporaneous  with    the   receipt ;   but    they    expressly   abstain 
from  deciding  on  that  ground.      In  the  elaborate  judgment  of  Lord 
Campbell  in  Morton  v.Tibbett,"  in  which  the  nature  of  an  accei)t- 
ance    and    actual    receii)t    sufticient    to    satisfy   the    statute    is    fully 
expounded,  he  says  (p.  434):   "The  acceptance  is  to   be   something 
which  is  to  precede  or  at  any  rate  to  be  contemporaneous  Avith  the 
actual  receipt  of  the  goods,  and  is  not  to  be  a  subsequent  act  after  the 
goods  have  been  actually  received,  weighed,  measured,  or  examined. 

I  6  E.  &  B.  726.  2  5  c.  B.  301. 

3  4  Excb.  390.  4  15  Q.  B.  428. 


272  SIMMONDS   V.    HUMBLE.  [CHAP.    I. 

The  intention  of  the  Legislature  seems  to  have  been  that  the  contract 
should  not  be  good  unless  partially  executed ;  and  it  is  partially  exe- 
cuted if,  after  the  vendee  has  finally  agreed  on  the  specific  articles 
which  he  is  to  take  under  the  contract,  the  vendor  by  the  vendee's 
directions  parts  with  the  possession,  and  puts  them  under  the  control 
of  the  vendee,  so  as  to  put  a  complete  end  to  all  the  rights  of  the  un- 
paid vendor  as  such.  We  think  therefore  that  there  is  nothing  in  the 
nature  of  the  enactment  to  imply  an  intention,  which  the  Legislature 
has  certainly  not  in  terms  expressed,  that  an  acceptance  prior  to  the 
receipt  will  not  suffice.  There  is  no  decision  putting  this  construction 
on  the  statute,  and  we  do  not  think  we  ought  so  to  construe  it. 

We  are  therefore  of  opinion  that  there  was  evidence  in  this  case  to 
satisfy  the  statute,  and  that  the  rule  must  be  discharged. 

Jiule  discharged. 


SIMMONDS  V.   HUMBLE  and  Others. 
In  the  Common  Pleas,  November  6,  1862. 

[Reported  in  13  Common  Bench  Reports,  New  Series,  258.] 

This  was  an  action  for  the  breach  of  a  contract  for  the  sale  of  a 
quantity  of  hops.  The  defendants  traversed  the  making  of  the  con- 
tract. 

The  cause  was  tried  before  Erie,  C.  J.,  at  the  sittings  at  Guildhall 

after    last   term,   when    the   following    facts    appeared    in   evidence : 

The  plaintiff  and  the  defendants  were  respectively  hop-merchants.     In 

January,   1862,   the    defendants    agreed    to   buy  a    quantity  of  hops 

belonging  to  the  plaintiff".     The  contract  was  made  by  one  Peacock, 

who  was  the  salesman  of  certain   persons   trading   under  the  name 

of  the  Hop  Planters'  Joint  Stock  Company,  who  Avere    the   factors 

of  the   plaintiff".      A  sale-note   was   made   out    by    Peacock   in    the 

following  form  :  — 
,  January  29, 1862. 

Messrs.  Humble  &  Co.  bought  of  the  Hop  Planters'  Joint  Stock  Company 
176  pockets  hops  (Smith,  1859)  (a)  58s. 

No  signatui-e  was  affixed  to  this  document. 

On  the  part  of  the  defendants  it  was  objected  that  there  was  no 
suflS^cient  contract  within  the  17th  section  of  the  Statute  of  Frauds. 

For  the  plaintiff"  reliance  was  placed  upon  the  decision  of  the 
Exchequer  Chamber  in  Durrell  v.  Evans,  31  Law  J.  Exch.  337 
[stating  it]. 


SECT.    IV.]  SIMMONDS   V.    HUMBLE.  273 

Tlie  Lord  Chief  Justice  upon  the  authority  of  that  case  overruled 
the  objection,  but  reserved  the  defen(huits  leave  to  move. 

It  was  further  contended  on  the  part  of  the  jjhiintiff  that  tliere  liad 
been  a  sufficient  acceptance  of  the  hops  to  take  the  case  out  of  the 
statute.  As  to  this  the  evidence  was  as  follows :  The  usual  course 
upon  a  sale  of  hops  is  for  the  parties  to  meet  to  ascertain  the  weight 
and  to  compare  the  samples  with  the  bulk  before  tlie  prompt-day. 
And  here  the  parties  attended  by  their  respective  agents  for  that  jmr- 
pose,  and  weighed  and  compared  all  the  pockets,  and  agreed  upon 
certain  allowances  to  be  made  as  to  certain  of  them  which  were 
objected  to.  Nothing  further  was  done.  But  one  of  the  plaintiff's 
witnesses  stated  that  after  the  weighing  and  comjjaring  no  objection 
could  by  the  usage  of  the  trade  be  allowed.^ 

His  Lordship  left  it  to  the  jury  to  say  whether  or  not  there  had 
been  an  acceptance  of  the  hops  under  the  contract.  They  found  in 
the  affirmative,  and  accordingly  returned  a  verdict  for  the  plaintiff, 
damages  £851  ds.  Gd. 

Hawkins,  Q.  C,  now  moved  to  enter  a  verdict  for  the  defendants 
or  a  nonsuit,  or  for  a  new  trial.  He  submitted  that  the  memorandum 
was  not  such  a  contract  as  would  satisfy  the  statute.  [Byles,  J.  The 
name  of  the  vendor,  the  names  of  the  jnirchasers,  the  number  of 
pockets,  the  description,  and  the  jDrice  are  all  there,  but  in  the  body 
of  the  document.  I  see  no  appreciable  difference  between  the  note 
here  and  that  in  Durrell  v.  Evans.]  There  was  no  evidence  that 
Peacock  was  the  agent  of  the  defendants.  He  was  the  servant  of  the 
factors  who  represented  the  plaintiff.  Assuming  the  insertion  of  the 
names  of  the  defendants  in  the  body  of  the  contract  to  be  tantamount 
to  a  signature.  Peacock  had  no  authority  to  sign  for  them.  Durrell  v. 
Evans  was  treated  as  being  decisive  of  the  matter  ;  but  that  case  is  still 
sttbjudice.  [Byles,  J.  Humble  &  Co.  ask  for  a  note  of  the  contract; 
they  get  it  and  they  keep  it.  Does  the  note  bind  the  i)laintifl"?]  Yes. 
It  was  made  by  his  agent  and  on  his  behalf  The  vendee  is  not  bound 
by  asking  for  a  sale-note,  intending  to  fix  the  vendor.  Then  there  is 
no  evidence  of  acceptance.  The  party  who  went  to  the  Avarehouse 
with  the  samples  merely  had  authority  to  ins[)ect  and  to  superintend 
the  weighing.  He  had  no  authority  to  accept  the  hops  on  behalf  of 
the  defendants. 

Williams,  J.  It  appears  to  me  that  it  is  unnecessary  to  consider 
the  first  point  made  by  Mr.  Hawkins ;  because  whether  there  was  or 

1  The  course  of  business  in  the  hop-trade  as  stated  and  admitted  in  Puncll  c. 
Evans  is  as  follows  :  "  After  the  purchase  is  completed  by  the  factor  an  appointment 
is  made  between  the  vendor  and  the  purchaser  for  the  hops  to  be  weig^hed,  for  which 
purpose  they  are  sent  by  the  vendor  to  his  factor's  warehouse.  The  warehouseman 
of  the  factor  generally  weighs  on  behalf  of  the  vendor,  and  the  purchaser  either 
comes  himself  or  sends  some  one  to  see  them  weighed  on  his  behalf."  And  see  Ban- 
nerman  v.  White,  10  C.  B.  (n.  s.)  844. 

VOL.    I.  18 


274  SIMMONDS   V.    HUMBLE.  [CHAP.   I. 

was  not  a  svifficient  note  or  memorandum  of  the  contract  to  satisfy  the 
statute  is  quite  immaterial  if  there  was  a  sufficient  acceptance.  As  to 
the  second  point,  I  have  felt  some  difficulty  whether  I  ought  to 
express  my  ojiinion  or  to  wait  to  hear  what  my  Lord  says.  He  how- 
ever thinks  the  point  was  not  reserved,  and  therefore  it  resolves  itself 
into  a  question  of  misdirection.  Now  looking  at  the  facts  and  at  the 
way  the  matter  was  presented  to  the  jury,  I  am  clearly  of  opinion  that 
there  was  no  misdirection.  The  vendor  employed  an  agent  to  conduct 
the  sale,  who  haj^pened  to  be  the  warehouseman  of  the  hops.  No 
point  appears  to  have  been  made  as  to  whether  there  was  a  sufficient 
receipt.  The  result  is,  that  as  soon  as  the  sale  was  perfected  the  ware- 
houseman began  to  hold  the  hops  for  the  buyer.  As  to  the  acceptance, 
the  question  is  whether  there  was  any  evidence  upon  which  the  jury 
might  i^roperly  be  directed  to  find  that  there  had  been  a  sufficient 
acceptance.  I  think  there  was.  After  the  making  of  the  contract 
there  was  not  only  a  verification  of  the  bulk  by  comparison  with  the 
sample,  but  a  weighing  and  approval  by  the  agents  of  both  parties. 
Add  to  this  the  evidence  of  the  witness  who  stated  that  he  never 
knew  of  an  instance  of  a  contract  having  been  thrown  up  after  this 
ceremony  had  been  gone  through.  I  am  of  opinion  that  there  is  no 
ground  whatever  for  disturbing  the  verdict. 

Byles,  J.  I  am  of  the  same  opinion.  The  17th  section  of  the 
Statute  of  Frauds  requires  in  the  case  of  a  verbal  contract,  which  we 
must  for  this  purpose  assume  this  contract  to  have  been,  that  the 
buyer  should  have  accepted  the  goods  and  actually  received  the  same. 
As  to  acceptance,  the  hops  were  compared  with  the  samples  and 
weighed,  and  i\\e  allowances  settled  on  certain  of  the  pockets  Avhich 
were  objected  to,  deductions  from  the  j^rice  to  be  paid.  I  observe  also 
that  there  was  evidence  that,  by  the  usage  of  the  trade,  after  the  hops 
have  been  weighed  and  approved  objections  are  no  longer  heard.  It  is 
clear  thei*efore  that  there  was  an  acceptance.  Then  the  statute 
requires  that  the  goods  shall  be  actually  received.  Now  here  was  a 
verbal  contract  made  by  the  bailee  of  the  hops.  The  moment  that 
contract  was  complete  the  bailee  became  the  bailee  of  the  buyer.  No 
objection  therefore  could  be  taken  to  the  want  of  a  sufficient  receipt. 
The  jury  have  found  upon  legal  evidence,  indej^endently  of  the  written 
contract,  that  the  buyers  accepted  the  hops  and  actually  received  the 
same. 

Keating,  J.,  and  Erle,  C.  J.,  concurring,  Mule  refused. 


SECT.    IV.]  SMITH  V.   HUDSON.  275 


SMITH   AND   Another,  Assignees   of  John   Willdkx   tue 
YouxGEK,  V.  HUDSON. 

In  the'.'Queen's  Bench,  May  5,  1865. 

[Reported  in  Q'Best  4-  Smith,  431.] 

In  this  action  the  plaint ift"  souglit  to  recover  the  value  of  48 ^  quar- 
ters of  barley  ;  and  the  following  special  case  was,  by  order  of  a  judge, 
stated  without  pleadings :  — 

John  Willden  the  younger  for  some  time  prior  to  the  month  of 
November,  1863,  carried  on  business  as  a  corn  merchant  at  East  Dere- 
ham, Norfolk.  The  defendant  is  a  farmer  i-esiding  at  Castle  Acre  in 
the  same  county. 

The  defendant  on  the  3d  November,  1863,  at  the  market  at  King's 
Lynn,  entered  into  a  verbal  contract  with  John  Willden  the  younger 
to  sell  him  48i  ciuarters  of  barley  at  35s.  per  quarter.  There  was  no 
wiitten  contract  and  no  payment  on  account.  The  sale  was  by  sam- 
ple ;  and  the  bulk  was  taken  on  November  7th  by  the  defendant  in  his 
own  wagons  to  the  goods  shed  of  the  Swaff ham  railway  station,  and 
left  on  the  platform  there,  with  a  delivery  note  in  his  own  handwriting 
in  the  words  following :  "  Great  Eastern  Railway :  To  the  Station 
Master,  Swaflfham  Station,  November  7th,  1863.  Receive  97  coombs 
barley,  consigned  to  the  order  of  Mr.  Willden,  of  Dereham,  fi-ora 
Thomas  Moore  Hudson,  Castle  Acre,  charges."  No  receipt  was  given 
by  the  railway  company  for  the  corn. 

It  is  the  custom  of  the  trade  for  the  buyer  to  compare  the  sample 
^vith  the  bulk  as  delivered,  and,  if  the  examination  is  not  satisfactory,  to 
strike  it,  ^.  e.,  either  refuse  to  accept  it  or  allow  it  to  remain  as  the  prop- 
erty of  the  vendor.  Notwithstanding  the  delivery  of  the  bulk  by  the 
defendant  at  the  S^vatf  ham  station,  it  was  in  the  power  of  John  Will- 
den the  younger  to  strike  the  corn  if  it  had  not  proved  according  to 
sample,  on  examination  by  him  or  on  his  behalf 

On  the  9th  November  John  Willden  the  younger  was  adjudicated  a 
bankrupt  on  his  own  petition  filed  that  day. 

No  portion  of  the  corn  was  paid  for.  On  the  11th  November  the 
defendant  gave  a  verbal  notice  to  the  station  master  at  Swaft'ham  not 
to  deliver  the  corn  into  the  possession  of  the  bankrupt  or  his  assignees 
or  any  other  person  without  his  (Hudson's)  written  consent,  but  to 
deliver  the  same  to  him  or  his  order ;  and  subsequently  on  the  same 
day  gave  a  written  notice  to  the  station  master  to  the  same  eflect. 
The  station  master  promised  the  defendant  that  no  one  should  remove 
the  corn  without  his  instructions.  At  the  time  these  notices  were 
given,  the  corn  was  still  on  the  platform  of  the  goods  shed  at  the  sta- 


276  SMITH   V.    HUDSON.  [CHAP.    I. 

tion  ;  the  bankrupt  had  given  no  orders  or  dh-ections  respecting  it,  nor 
had  he  examined  it  to  see  whether  the  bulk  corresponded  with  the 
sample,  nor  had  he  given  any  notice  to  the  defendant  that  he  accepted 
or  declined  the  corn. 

No  demurrage  was  charged  by  the  railway  company  in  respect  of 
the  corn.  It  was  the  custom  of  the  company  to  charge  demurrage  on 
corn  or  other  goods  left  at  the  station  for  upwards  of  five  days,  but  not 
for  any  shorter  period. 

On  the  1st  December  the  plaintiffs  were  duly  appointed  assignees  of 
the  bankrupt,  and  on  the  same  day  they  gave  notice  to  the  railway 
company  that  they  claimed  all  the  com  which  had  been  left  by  various 
persons  to  the  order  of  the  bankrupt  at  the  different  stations  of  the  rail- 
way. 

The  railway  company  on  being  indemnified  by  the  defendant  deliv- 
ered the  48 i-  quarters  of  barley  to  him  on  the  5th  December,  1863. 

On  the  examination  of  the  defendant  before  the  Court  of  Bank- 
ruptcy, which  was  annexed  to  the  case,  he  stated  that  he  had  had  sev- 
eral prior  dealings  with  the  bankrupt,  in  which  he  dehvered  the  corn  to 
the  order  of  the  bankrupt  to  the  Swaffham  station ;  and  that  he  be- 
lieved it  was  the  bankrupt's  practice  to  have  corn  which  he  purchased 
sent  to  his  order  at  the  railway  station,  and  to  forward  such  corn  from 
the  station  to  the  pui-chasers.  The  bankrupt  had  no  warehouse  in 
which  he  could  store  it.  The  defendant  further  said  on  that  examina- 
tion that  the  value  of  the  corn  which  he  received  back  from  the  rail- 
way company  was  about  2s.  a  quarter  less  when  he  received  it  back  than 
when  he  sold  it. 

The  plaintiffs  as  assignees  contended  that  there  was  a  perfect  deliv- 
ery of  the  barley  to  the  bankrupt ;  that  the  transitus  was  at  an  end, 
and  that  the  property  in  the  corn  passed  to  them  as  assignees.  They 
also  claimed  to  be  entitled  to  the  corn  as  being  in  the  order  and  dispo- 
sition of  the  bankrupt  at  the  time  of  his  l^ankruptcy.^ 

The  defendant  contested  the  above  claims  altogether.  The  question 
for  the  opinion  of  the  court  was,  whether  the  plaintiffs  were  entitled 
to  the  barley. 

The  case  was  argued  April  25th  and  May  5th,  and  judgment  deliv- 
ered on  the  latter  day. 

Mellish  {Metcalfe  Avith  him),  for  the  plaintiffs.  First,  there  was  no 
valid  stoppage  in  transitu.  The  goods  were  delivered  at  the  railway 
station  to  the  railway  company  as  warehousemen  for  the  purchaser,  and 
therefore  the  transitus  was  at  an  end.  \_Gray.,  for  the  defendant,  said 
he  should  not  insist  on  that  point.] 

Secondly,  there  was  an  acceptance  and  receipt  of  the  goods  within 
§  17  of  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  so  as  to  bind  the 
contract.  When  there  has  been  a  complete  delivery  of  goods  to  the 
1  The  arguments  and  decision  upon  this  question  are  omitted.  —  Ed. 


SECT.    IV.]  SMITH    V.    HUDSON.  277 

buver  or  his  nfrcnt,  the  seller  cannot,  by  a  notice  rcquirincj  that  the  goods 
be  delivered  back  to  him,  which  notice  is  not  comitlied  with,  rescind 
the  contract  and  prevent  the  pin-chaser  accepting  them.  The  object 
of  the  statute  was  to  prevent  perjury  arising  out  of  parol  contracts; 
and  acceptance  and  receipt  are  required  by  §  17  only  as  evidence 
of  a  j)revious  contract.  In  Bailey  v.  Sweeting,^  Avhere  it  was  held  that 
there  was  a  sufficient  written  memorandum  of  the  contract,  though  the 
defendant  declined  to  receive  the  goods  because  they  were  injured  by 
the  negligence  of  the  carrier  through  whom  they  were  sent,  Wil- 
liams, J.,  said  (p.  859)  :  "  It  cannot  for  a  moment  be  controverted  here 
that  in  point  of  fact  there  Avas  a  good  and  lawful  contract  between  the 
plaintiffs  and  the  defendant  for  the  sale  of  the  goods  in  question.  But  it 
is  equally  clear  that,  as  the  price  of  the  goods  bargained  for  exceeded 
the  value  of  £10,  the  contract  was  not  an  actionable  one  unless  the 
requisites  of  the  17th  section  of  the  Statute  of  Frauds  were  complied 
with.  .  .  .  The  effect  of  that  enactment  is  that,  although  there  is  a  con- 
tract which  is  a  good  and  valid  contract,  no  action  can  be  maintained 
upon  it  if  made  by  word  of  mouth  only,  unless  something  else  has  hap- 
pened, e.  (/.,  unless  there  be  a  note  or  memorandum  in  writing  of  the 
bargain,  signed  by  the  party  to  be  charged.  As  soon  as  such  a  memo- 
randum comes  into  existence,  the  contract  becomes  an  actionable  con- 
tract." In  Taylor  v.  Wakefield,-  where  the  court  held  that  there  Avas 
no  evidence  of  an  acceptance  and  receipt  to  bind  the  bargain,  the  goods 
at  the  time  of  the  verbal  contract  for  purchase  Avere  in  the  possession 
of  the  purchaser  as  bailee  :  there  was  no  delivery  of  them  by  the  seller 
in  pursuance  of  a  previous  contract ;  a  delivery  requires  an  act  to  be 
done  by  both  parties :  also  the  parol  contract  was  disaffirmed  by  the 
seller  before  it  Avas  acted  ujjon  by  the  purchaser.  [Blackburx,  J. 
In  jMeredith  v.  Meigh,''  Avhere  goods  verbally  ordered  had  been  delivered 
on  board  a  shij)  selected  by  the  vendor,  though  there  was  a  sufficient 
delivery  to  support  an  action  for  goods  sold  and  delivered,  there  was 
not  an  acceptance  and  receipt  to  bind  the  contract.  In  Cusack  v. 
Robinson,^  Avhere  the  sale  was  of  specific  goods,  it  Avas  held  that  an 
acceptance  ])iior  to  the  receipt  Avould  satisfy  the  statute.  Here  the 
lapse  of  four  days,  during  Avhich  the  bankrupt  allowed  the  goods  to 
remain  at  the  raihvay  station,  is  some  evidence  that  he  accepted  them.] 
In  Bushel  v.  Wheeler,^  where  the  vendee  having  oi'dered  goods  to  be 
sent  by  a  particular  vessel  received  the  invoice  which  stated  a  three 
months'  credit,  and  alloAved  the  goods  to  remain  in  the  Avarehouse  of 
the  oAvner  of  the  vessel  until  after  that  credit  had  expired,  and  then 
repudiated  them,  it  Avas  held  that  the  judge  ought  to  have  left  to  the 
jury  whether  there  was  an  acceptance  and  receipt.  In  Morton  v.  Tib- 
bett  ®  a  sub-sale  of  goods  Avhich  had  never  been  seen  by  the  vendee  was 
held  to  be  evidence  of  acceptance.  .  .  . 

1  9C.  B."(n.  s.)  843.        '^6E.  &B.  765.  5  2E.  &B.  364. 

«  1  B.  &  S.  299.  5  15  Q.  B.  442,  note.  6  15  Q.  B.  428. 


278  SMITH   V.    HUDSON.  [CHAP.    I. 

Gray  (Joseph  Brovm  with  him),  for  the  defendant.     Admitting  that 
the  transitus  was  at  an  end,  there  was  no  acceptance  of  the  goods  so 
as  to  make  a  valid  contract  wdthin  §   17   of  the   Statute  of  Frauds. 
[Cockbur:n-,  C.  J.     The  defendant  had  performed  his  part  of  the  con- 
tract by  delivering  the  goods  to  the  agent  of  the  vendee.     Is  there 
any  case  in  which  after  the  seller  has  done  all  that  lies  on  him  to  do, 
he  can  repudiate  the  contract  and  demand  back  the  goods?]     There 
must  be  an  acceptance  as  Avell  as  a  delivery ;  and  with  respect  to  these 
goods,  the  purchaser  did  no  act  evidencing  his  acceptance  of  them. 
[CocKBURT^,  C.  J.     Suppose  the  purchaser  accepts  subject  only  to  a 
right  to  reject  the  goods  if  they  do  not  correspond  with  the  sample, 
does  not  the  property  in  the  goods  pass  so  far  as  the  vendor  is  con- 
cerned, unless  there  be  something  to  shew  that  such  was  not  the  in- 
tention of  the  parties  ?]     No  property  passes  by  delivery  to  the  agent 
of  the   purchaser,   unless   the   sale   be   of  specific  goods.      Godts  v. 
Rose.^     [Blackburn,  J.,  referred  to  Dutton  v.  Solomonson.^]    In  Nor- 
man V.  Phillips  ^  the  vendee  kept  the  invoice  more  than  a  month  after 
the  anival  of  the  timber  at  the  railway  station,  and  yet  it  was  held 
that  there  was  not  sufficient  evidence  of  an  acceptance.      Hunt   v. 
Hecht  *  is  an  express  authority  that,  unless  the  vendee  has  an  oppor- 
tunity of  judging  whether  the  goods  sent  correspond  with  those  or- 
dered, there  can  be  no  acceptance  and  receipt  within  the   statute. 
[CocKBURN,  C.  J.     If  the  vendor  delivers  to  the  purchaser,  the  deliv- 
ery and  acceptance  are  mutual.]     The  latter  receives  into  his  posses- 
sion, but  does  not  necessarily  accept.     The  delivery  does  not  bind  the 
contract,  because  the  vendee  may  return  the  goods  if  they  do  not  agree 
with  the  sample.    In  Morton  v.  Tibbett  ^  Lord  Campbell  in  deliver- 
ing the  judgment  of  the  court  said :  "  The  acceptance  to  let  in  parol 
evidence  of  the  contract  appears  to  us  to  be  a  different  acceptance 
from  that  which  affords  conclusive  evidence  of  the  contract  having  been 
fulfilled."     In  Bushel  v.  Wheeler*^  the  vendee  made  no  communication 
to  the  vendor  till  five  months  after  the  arrival  of  the  goods.     In  Nich- 
olson V.  Bower"'  the  vendee  had  examined  a  bulk  sample  of  the  wheat 
and  did  not  object  to  it ;  yet  it  was  held  that,  assuming  the  transitus  to 
have  been  at  an  end  on  the  arrival  of  the  wheat  at  the  warehouse  of 
the  railway  company,  there  was  no  acceptance  of  it  by  the  vendee,  and 
therefore  the  property  never  vested  in  him.      An  acceptance  by  the 
purchaser  within  the  Statute  of  Frauds  must  be  with  the  continuing 
consent  of  the  vendor ;  and  in  Bailey  v.  Sweeting  *  there  was  such  an 
acceptance ;  here  the  acceptance  by  the  assignees  was  not  until  after  the 
defendant  had  withdrawn  his  consent  and  repudiated  the  contract. 
Taylor  v.  Wakefield  ^  was  cited  in  that  case ;  and  Willes,  J.,  (p.  850) 

1  17  C.  B.  229.  2  3  B.  &  P.  582.  3  14  m.  &  W.  277. 

*  8  Exch.  814.  5  15  Q.  b.  428,  435.  6  15  Q.  b.  442,  note. 

7  1  E,  &  E.  172.  8  9  c.  B.  (N.  s.)  843.  9  6  E.  &  B.  765. 


SECT.    IV.]  SMITH   V.    HUDSON.  279 

distinguished  it  on  that  ground.  The  assignees  have  no  right  to  come 
in  and  make  the  transaction  a  binding  contract  while  it  is  open  to  eitlier 
of  the  parties  to  say  they  do  not  choose  that  it  shall  be  matured  into  a 
contract.  .  .  . 

The  mere  delivery  to  a  carrier  is  not  a  delivery  to  the  vendee,  so  as 
to  bind  the  contract  within  §  17  of  the  Statute  of  Frauds.  Meredith 
V.  Meigh ; ^  Hart  v.  Bush,^  2)er  Lord  Campbell.  [Bi.ackiuuk,  J.  In 
neither  of  those  cases  was  there  a  bankruptcy  of  the  proposed  vendee.] 
The  bankruptcy  coming  after  does  not  affect  the  decisions.  [Black- 
BUKN,  J.  The  principle  on  which  those  cases  were  decided  is,  that 
a  carrier  has  no  power  or  authority  to  accept.  It  is  almost  a  con- 
tradiction to  say  that  there  is  a  delivery  and  yet  not  a  receipt. 
An  acceptance  under  §  17  of  the  Statute  of  Frauds  is  another 
question.]  .  .  . 

Mellis/i,  in  reply.  An  acceptance  and  receipt  of  goods  do  not  merely 
make  the  contract  binding  as  from  the  time  when  the  acceptance  and 
receipt  took  place,  but  take  the  case  out  of  the  Statute  of  Frauds 
altogether,  and  put  the  parties  in  the  same  position  as  they  would  be 
in  if  the  statute  had  not  passed.  Where  goods  sold  under  a  parol  con- 
tract within  the  Statute  of  Frauds  are  delivered  to  a  carrier  and  lost, 
the  carrier  is  liable  to  the  vendor;  but  if  they  reach  the  purchaser  and 
he  accepts  them,  he  must  sue  the  carrier  for  an  injury  by  negligence  in 
carrying  them,  for  the  projjcrty  in  them  passed  to  the  purchaser  when 
they  were  delivered  to  the  carrier.  Bailey  v.  Sweeting'^  shews  that 
the  memorandum  in  Avriting  may  be  given  at  any  time  after  the  parol 
contract.  And  there  is  no  difference  in  principle  between  the  effect  of 
a  subsequent  memorandum  and  of  a  subsequent  acceptance  and  receipt. 
[CocKBURX,  C.  J.  Here  the  seller  countermanded  the  goods,  and  the 
purchaser  had  no  right  against  him  because  there  Avas  no  binding  con- 
tract.] There  was  a  contract,  and  it  became  binding  by  a  subsequent 
acceptance  and  receipt.  The  notice  given  by  the  defendant  to  the 
railway  company  was  only  to  hold  the  goods  for  him.  [Blackburn, 
J.  If  the  railway  company  refused  to  act  upon  the  notice  after 
reasonable  time  for  inquiry,  there  would  be  ground  for  an  action  of 
trover ;  could  that  vested  right  of  action  against  them  be  divested  by 
a  subsequent  acceptance  by  the  i)urehaser?  Cockburn,  C  J.  Were 
not  a  railway  company  here  agents  for  both  parties?]  They  were 
agents  for  the  purchaser  until  he  refused  to  accept  the  goods.  The 
terms  of  the  company's  answer  to  the  notice  of  the  defendant  amount 
to  this,  that  they  will  keep  the  corn  till  they  see  who  is  entitled  to  it. 
And  as  soon  as  there  was  an  acceptance  and  receipt  the  case  is  taken 
out  of  the  Statute  of  Frauds.  A  memorandum  signed  by  the  vendor 
only  is  binding  upon  him  ;  so  the  vendor  by  delivering  goods  de  facto 
binds  hhnself,  though  the  purchaser  might  reject  them.  [Blackburn,  J. 
1  2  E.  &  B.  364,  373.  2  e.  B.  &  E.  494,  498.  3  9  c.  B.  (n.  s.)  843. 


280  SMITH    V.    HUDSON.  [CHAP.    I. 

refen-ed  to  the  jurlgment  of  Parke,  B.,  in  Van  Casteel  v.  Booker.^]  In 
Gibson  v.  Carrutliers,^  where  Lord  Abinger  differed  from  the  other 
Barons  of  the  Exchequer,  it  was  held  that  the  assignees  were  entitled 
to  bring  an  action  upon  a  contract  of  sale  against  the  vendor  for  non- 
delivery. Meredith  v.  Meigh  ^  and  Hart  v.  Bush  *  have  not  much  bear- 
ing on  this  branch  of  the  case.  [Cockburn,  C.  J.  As  to  the  decision 
in  Bailey  v.  Sweeting,^  I  am  not  j^repared  to  adopt  it.  Blackburn, 
J.  The  distinction  between  that  case  and  the  present  is,  that  there 
cannot  be  an  acceptance  if  the  person  who  has  a  right  to  prevent  it 
interposes.]  Here  the  vendor  did  an  act  which  bound  him.  Sup- 
pose the  j^urchaser  had  signed  the  contract  and  the  seller  had  not, 
could  the  seller  have  demanded  the  goods  back  after  he  had  delivered 
them?  In  the  cases  cited  on  the  other  side  the  question  was 
whether  the  purchaser  had,  prior  to  his  refusal  to  take  the  goods, 
bound  himself  by  an  accejjtance  and  receipt.  In  Norman  v.  Phillips  ® 
the  purchaser,  immediately  he  was  informed  of  the  arrival  of  the  tim- 
ber at  the  railway  station,  refused  to  take  it ;  and  the  rule  laid  down  by 
Alderson,  B.,  (p.  283)  "  that  acceptance  and  delivery  under  the  Statute 
of  Frauds  means  such  an  acceptance  as  precludes  the  purchaser  from 
objecting  to  the  quality  of  the  goods,"  was  dissented  from  by  Lord 
Campbell  in  Morton  v.  Tibbett.''  Hunt  v.  Hecht  ^  and  Nicholson  v. 
Bower  ®  turned  on  the  refusal  of  the  defendant  to  accept.  But  the 
rule  laid  down  in  Hunt  v.  Hecht  *  is  at  variance  with  the  decision  in 
Morton  v.  Tibbett.''  Further,  the  assignees  might  adopt  the  contract 
of  the  bankrupt.  In  Scott  v.  Pettit,^°  where  goods  reached  the  ware- 
house of  the  defendant's  agent,  which  was  considered  as  his  own  after 
his  bankruptcy,  though  the  bankrupt  had  done  no  act  to  bind  the  con- 
tract it  was  held  that  the  property  in  the  goods  vested  in  the  assignees, 
Lord  Alvanley  saying  (p.  471),  "For  the  purpose  of  receiving  goods  the 
assignees  stand  in  the  place  of  the  bankrupt."  [^Gray.  The  decision 
in  that  case  was  on  the  grounds  that  the  bankruptcy  was  not  a  counter- 
mand of  the  oi'der,  and  the  transitus  was  at  an  end.]  .  .  . 

CocKBURX,  C.  J.  The  court  is  much  indebted  to  the  counsel  on 
both  sides,  who  have  argued  this  case  with  great  ability  and  industry. 
I  am  of  opinion  that  our  judgment  should  be  for  the  defendant. 

The  first  question  is,  whether  the  defendant  was  entitled  to  the 
goods  by  stoppage  in  transitu.  This  was  disjDosed  of  in  the  course  of 
the  argument ;  it  is  quite  clear  the  transitus  had  ceased.  The  goods 
had  arrived  at  the  place  which,  as  between  buyer  and  seller,  was  the 
place  of  their  destination  ;  and  they  were  in  the  custody  of  the  railway 
comj^any,  not  as  carriers  but  as  warehoi;semen,  and  fresh  orders  were 
requisite  for  a  fresh  destination. 

1  2  Exch.  691,  709.  '^  8  M.  &  W.  321.  3  2  E.  &  B.  364. 

*  E.  B.  &  E.  494.  5  9  C.  B.  (n.  s.)  843.  «  14  M.  &  W.  277. 

1  15  Q.  B.  428,  439.  8  8  Exch.  814.  9  1  E.  &  E.  172. 
1"  3  B.  &  P.  469. 


SECT.    IV.]  SMITH   V.    HUDSON.  281 

The  most  important  question  is  whether,  at  the  time  when  the 
defendant  demanded  possession  of  the  goods,  the  j)roperty  was  still  in 
him  with  the  right  to  have  them  delivered  up  to  him  upon -demand. 
That  depends  ujion  whether  §  17  of  the  Statute  of  Frauds  had  been 
satisfied.  And  on  this  part  of  the  case  two  points  arise  :  First, 
whether  the  delivery  of  the  goods  by  the  vendor  to  the  railway  com- 
pany, by  virtue  of  the  arrangement  or  contract  between  them,  and  the 
receipt  by  the  railway  com})any  on  the  part  of  the  purchaser,  Avas  a 
receipt  and  acceptance  such  as  to  satisfy  the  statute.  The  cases  relied 
on  by  Mr.  Gray,  Hart  v.  Bush  ^  and  Hunt  v.  Hecht,-  are  conclusive 
authorities  to  shew  that  the  delivery  to  a  railway  com])any  is  not 
equivalent  to  a  receipt  and  acceptance  by  the  buyer.  In  the  foniier 
case  goods  were  delivered  at  a  certain  wharf  according  to  arrangement 
between  the  vendor  and  purchaser,  for  the  purpose  of  being  put  on 
board  ship  and  conveyed  to  their  destination,  where  the  purchaser 
carried  on  business ;  and  the  court  held  that  this  was  not  sufficient  to 
satisfy  the  statute.  The  facts  here  are  much  the  same :  the  goods 
were  delivered  to  the  railway  company  for  the  purpose  of  being  after- 
wards forwarded  as  the  buyer  should  direct.  Hunt  v.  Hecht  ^  goes 
still  farther :  there  the  buyer  had  a  right  to  inspect  the  goods  sold,  to 
see  if  they  were  in  accordance  with  what  he  had  bargained  for ;  and 
the  Court  of  Exchequer  held  that  till  he  had  exercised  that  right  there 
was  no  acceptance  within  the  statute,  and  therefore  no  binding  contract. 
There  is  a  distinction  between  a  mere  receipt  and  a  recei])t  animo  ac- 
cipiencli ;  and  in  the  present  case,  the  sale  being  by  sample,  the  buyer 
had  a  right  to  see  whether  the  bulk  was  according  to  the  sample,  and 
until  he  had  exercised  that  right  there  was  no  acceptance  within  the 
statute.  The  other  point  on  this  branch  of  the  case  is,  whether  the 
assignees  of  the  buyer  Avho  had  beconie  bankrupt  were  entitled  to 
place  themselves  in  the  bankrupt  buyer's  place  and  to  accept  the  goods 
so  as  to  take  the  case  out  of  the  17th  section  of  the  Statute  of  Frauds. 
It  is  not  necessary  to  determine  Avhether  in  general  they  are  entitled 
to  accept  goods  ordered  by  a  bankrujit  previous  to  his  bankruptcy  and 
not  accepted  by  him.  Assuming  that  the  assignees  would  have  a  right 
to  perfect  any  right  or  interest  of  the  bankrupt  inchoate  at  the  time  of 
bankrujitcy,  in  the  present  case,  before  they  attempted  to  do  so,  the 
vendor  had  asserted  his  right  to  have  the  goods  re-delivered  to  him.  If 
he  had  that  right,  the  assignees  could  not  divest  the  property  out  of 
him.  That  depends  on  §  17  of  the  Statute  of  Frauds,  the  effect 
of  which  is  that,  without  a  note  or  memorandum  in  writing,  until 
acceptance  and  receipt  by  the  buyer  there  is  no  contract  binding  on 
either  i)arty.  The  passing  of  the  property  depends  on  the  efficacy  of 
the  contract,  and  if  the  contract  has  none  until  acce})tance  the  prop- 
erty cannot  pass ;  here  therefore  the  property  in  the  corn  remained  in 
1  E.  B.  &  E.  494.  -i  8  Exch.  814.  »  8  Excb.  814. 


282  SMITH   V.    HUDSON.  [CHAP.    I. 

the  seller,  and  he  was  entitled  to  assert  his  right  of  property :  he  did 
so,  and  the  railway  company  admitted  the  validity  of  his  claim  and 
promised  that  the  corn  should  not  be  removed  Avithout  his  instructions. 
This  put  an  end  to  the  contract,  I  agree  with  Mr.  Mellish  that,  if  the 
assignees  had  done  any  act  to  accept  the  corn,  it  woiild  have  taken 
the  case  out  of  the  statute ;  but  as  they  had  not  done  any  such  act  at  the 
time  when  the  defendant  claimed  to  have  the  corn  re-delivered  to  him, 
there  being  no  binding  contract  and  the  property  not  having  passed, 
he  had  the  right  to  treat  the  contract  as  not  binding  on  either  party, 
and  the  assignees  wei'e  too  late.  .  .  . 

Blackburn,  J.  The  present  case  does  not  depend  on  the  question 
as  to  the  right  of  stoppage  in  transitu.  It  was  admitted  by  Mr.  Gray 
that  the  railway  station  was  the  ultimate  destination  of  the  goods  so 
far  as  the  vendor  and  purchaser  were  concerned,  and  if  the  17th 
section  of  the  Statute  of  Fi-auds  was  satisfied  they  would  have 
belonged  to  the  purchaser. 

The  first  question  on  which  the  case  depends  is,  whether  the  17th 
section  of  the  Statute  of  Frauds  was  satisfied.  In  order  to  satisfy  it 
there  must  have  been  an  acceptance  and  receipt  of  the  goods  to  bind 
both  the  purchaser  and  vendor.  It  is  not  disputed  that  when  goods  in 
pursuance  of  a  contract  are  delivered  to  a  common  carrier,  though  he 
receives  them  as  agent  for  the  buyer,  nevertheless  having  no  authority 
to  accept  that  is  not  an  acceptance  to  bind  the  contract  between  the 
buyer  and  seller.  In  the  present  case  the  delivery  of  the  goods  at  the 
railway  station  was  on  the  7th  November ;  the  goods  lay  there  until 
the  9th,  on  which  day  the  intended  purchaser  became  bankrupt. 
Though  the  bankrupt  had  done  no  act  respecting  them,  the  lapse  of 
time  would  have  been  some  evidence  of  'acceptance ;  for  the  cases,  as 
was  said  in  Morton  v.  Tibbett,^  establish  that  there  may  be  an  accept- 
ance and  receipt  of  goods  by  a  purchaser  within  the  Statute  of  Frauds, 
although  he  has  done  nothing  to  preclude  himself  from  objecting  that 
they  do  not  correspond  with  the  contract.  But  here,  considering  the 
shortness  of  the  time  and  that  the  purchaser,  being  on  the  eve  of 
bankruptcy,  .could  not  honestly  have  accepted  the  goods,  it  Avould  be 
too  much  to  infer  an  acceptance  of  the  goods  before  the  9th  November. 
Here  was  an  actual  receipt,  but  not  an  acceptance ;  and  the  efiect  is 
that  the  contract  was  not  good  under  the  statute.  The  cases, 
including  Meredith  v.  Meigh,^  are  uniform  that,  if  the  goods  had  in 
the  mean  time  perished  by  accident,  it  would  have  been  the  loss  of 
the  intended  vendor,  because  the  statute  not  being  complied  with  the 
property  did  not  pass  and  the  goods  still  belonged  to  him.  On  the 
11th  November  the  defendant  in  this  case  gave  a  notice  to  the  railway 
company,  with  which  they  could  not  have  refused  to  comply,  and 
demanded  the  goods  from  the  company.  They  assented  to  it,  and 
1  15  Q.  B.  428,  441-2.  '^  2  E.  &  B.  364. 


SECT.    IV.]  SMITH    V.    HUDSON.  283 

promised  that  they  wo\il(l  not  part  with  the  goods  witliout  his  instruc- 
tions. After  that  couUl  there  be  a  subsequent  acceptance  by  the 
buyer  or  any  person  representing  liini  witliout  the  consent  of  the  ven- 
dor? I  tliink  not.  Bailey  ■».  Sweeting  Hurned  on  tlie  effect  of  the 
letter  by  the  defendant  as  a  written  memorandum  of  tlie  bargain :  it  is 
not  necessary  to  consider  whether  we  approve  of  tlie  decision  in  that 
case,  because  here  could  be  no  acceptance  until  the  goods  were 
approved.  But  when  the  railway  company  said  they  would  no  longer 
hold  them  to  the  order  of  the  purchaser,  if  he  had  come  afterwards 
and  taken  them  away  there  could  not  have  been  an  acceptance, 
because  an  acce]>tance  must  be  Avith  the  consent  of  ^the  vendor.  In 
Bailey  v.  Sweeting^  Willes,  J.,  observing  on  Taylor  y.  Wakefield,-' 
says  (p.  850)  :  "  That  was  a  very  peculiar  case  :  there  Avas  no  accejjtance 
there  with  the  assent  of  the  vendor."  My  judgment  rests  on  the 
ground  that  there  was  not  and  could  not  be  a  subsequent  acce])tance 
of  the  goods,  and  there  being  nothing  to  bind  the  contract  under  the 
Statute  of  Frauds  they  remained  the  goods  of  the  defendant.  .  .  . 

Mellor,  J.  In  the  present  case  there  was  a  sale  by  sam})le  of  got)ds 
above  the  value  of  £10.  By  §  17  of  the  Statute  of  Frauds  such 
a  sale  is  not  good  unless  the  buyer  accept  and  actually  receive  the 
goods  or  some  portion  of  them ;  in  order  to  bind  the  contract  there 
must  be  an  assenting  to  an  actual  sale  of  the  goods.  Here  the  goods 
so  sold  were  sent  to  the  railway  station  to  the  order  of  the  buyer; 
the  buyer  gave  no  order  and  did  nothing  under  the  contract,  nor  did 
he  accept  or  actually  receive  any  portion  of  the  goods.  There  may 
be  an  acceptance  and  receipt  to  satisfy  the  statute,  and  yet  the  buyer 
may  refuse  to  carry  out  the  contract  on  the  ground  that  the  goods 
were  not  according  to  the  contract.  Afterwards  the  vendor  went  to 
the  railway  station  and  countermanded  the  directions  he  had  pre- 
viously given  respecting  the  dcsthiation  of  the  goods ;  and  the  station 
master  promised  that  he  would  not  part  with  the  goods  without  his 
instructions.  All  this  occurred  before  any  act  done  by  the  buyer  to 
bind  the  contract  by  acceptance  or  otherwise,  and  consequently  the 
property  in  the  goods  did  not  ])ass.  ... 

CocKBUKN,  C.  J.  My  brother  Shee,  who  has  gone  to  Chandjcrs, 
concurs  in  the  judgment  of  the  court. 

Judgment  for  the  defendant. 

1  9  C.  B.  (n.  8.)  843.  2  6  E.  &  B.  765. 


284  VINCENT   V.    GERMOND.  [CHAP.    I. 

VINCENT    V.   B.  &  J.   GERMOND. 
Supreme  Court  of  New  York,  August  Term,  1814. 

[Reported  in  11  Johnson,  283.] 

This  was  an  action  of  assumpsit  for  cattle,  &c.,  sold  and  delivered, 
and  was  tried  at  the  Dutchess  circuit  in  November,  1813,  before 
Mr.  Justice  Spencer. 

It  was  proved  at  the  trial  that  in  June,  1812,  B.  Germond,  one  of 
the  defendants,  came  to  the  plaintiff  and  asked  him  if  he  had  any 
cattle  to  sell,  and  the  plaintiff  replying  in  the  affirmative  they  went 
too-ether  into  the  field  to  look  at  them.  B.  Germond  offered  |280 
for  the  cattle,  four  in  number,  which  after  some  hesitation  the 
plaintiff  agreed  to  accept,  if  they  were  at  B.  G.'s  risk,  observing  that 
he  had  had  one  or  two  cattle  injured  by  the  clover  in  the  field  where 
the  cattle  were  feeding.  B.  Germond  replied  that  he  took  them  at 
his  own  risk,  and  the  cattle  must  remain  where  they  Avere ;  that  he 
would  call  and  take  them  away  as  soon  as  he  had  completed  his  di'ove. 
After  the  bargain  was  concluded  the  cattle  so  purchased  continued  in 
the  same  field  with  other  cattle  of  the  plaintiff;  in  a  few  days  one  of 
them  died,  being  injured  by  the  clover.  On  the  4th  of  July  following, 
James  Germond,  the  other  defendant,  came  alone  to  the  field  and  took 
away  the  three  remaining  cattle  without  saying  any  thing  to  the 
plaintiff. 

The  defendants  gave  some  evidence  of  a  tender  to  the  plaintiff  in 
June,  1813,  of  the  price  of  the  three  cattle  left.  It  was  agreed  that 
$231  Avas  a  sufficient  compensation  for  the  three  cattle. 

The  defendants'  counsel  objected  to  the  parol  evidence  of  the  con- 
tract, which  was  admitted  by  the  judge,  reserving  the  question;  and  a 
verdict  was  taken  for  the  plaintiff  for  $311.03,  being  the  price  of  the 
four  cattle  with  interest. 

The  case  was  submitted  to  the  court  without  argument. 
Per  Curiam.  No  earnest  money  having  been  paid  nor  any  writing 
made  between  the  parties  relative  to  the  contract,  the  question  is, 
whether  there  was  such  a  delivery  of  the  cattle  as  to  take  the  case  out 
of  the  Statute  of  Frauds.  It  was  not  made  a  question  whether  the 
defendants  were  partners  so  as  to  be  bound  by  the  acts  of  each  other. 
It  may  be  questioned  whether  what  took  place  between  B.  Germond 
and  the  plaintiff,  if  standing  alone,  would  amount  to  a  dehvery ;  but 
the  subsequent  conduct  of  the  other  defendant  in  taking  away  the 
three  oxen,  without  any  new  contract,  affords  sufficient  ground  to  infer 
a  delivery.  This  was  the  exercise  of  an  act  of  ownership  over  the 
property  in  confirmation  of  the  bargain.     The  defendants  dealt  with 


SECT.    IV.]  MILLS   V.    HUNT.  285 

the  oxen  as  their  own,  and  as  if  in  their  actual  possession,  without  ask- 
ing; any  permission  from  the  plaintiff  for  so  doing.  Tliis  must  have 
been  done  in  virtue  of  the  right  acquired  by  the  original  contract  and 
transfer  of  the  property.  Such  exercise  of  ownership  by  selling  ]*art  of 
the  property  was,  in  the  case  of  Chaplin  v.  Rogers,  1  East,  192,  held  a 
suflScienf  delivery  to  take  the  case  out  of  the  statute.  And  the  case 
of  Elmore  v.  Stone,  1  Taunt.  Rep.  457,  is  much  stronger  on  this  point. 
It  was  there  held  that  an  agreement  between  the  parties  that  the 
vendor  should  keep  the  horses  sold  for  the  vendee  at  livery  was  suf- 
ficient to  vest  the  property  in  the  buyer  without  any  written  contract 
or  earnest  paid.  The  opinion  of  the  court  upon  this  point  renders  it 
unnecessary  to  notice  the  other  question  made  in  the  case.  The 
plaintiff  must  accordingly  have  judgment  upon  the  verdict  for  8311.03. 

Judgment  for  the  2^^''.int!ff. 


MILLS   AND   Others  v.   HUNT. 
New  Yoek  Court  of  Errors,  December  Term,  1838. 

[Reported  in  20  Wenddl,  431.] 

Error  from  the  Supreme  Court.  Hunt  brought  an  action  in  the 
New  York  Common  Pleas  for  the  non-deliveiy  of  goods  purchased  by 
him  at  a  sale  by  the  defendants  as  auctioneers ;  the  terms  of  sale  were 
approved  indorsed  paper  at  six  months  for  sums  over  $100,  and  under 
that  amount  cash  without  discount.  The  plaintiff  purchased  five 
parcels,  which  were  separately  struck  off  to  him  and  amounted  together 
to  the  sum  of  6224.40.  A  bill  of  parcels  was  delivered  to  the  plaintiff, 
headed,  "L.  J.  Hunt,  bought  of  Mills,  Brothers  &  Co.,"  the  latter  being 
the  name  of  the  defendant's  firm  ;  and  he  was  directed  to  call  on  the 
owners  for  the  goods,  which  were  not  present  at  the  sale,  but  were  sold 
by  sample.  He  accordingly  called  on  one  of  the  owners  and  received 
four  of  the  parcels,  but  not  receiving  the  fifth  he  proceeded  to  the 
counting  house  of  the  defendants,  and  tendered  to  a  clerk  there  an 
indorsed  note  for  the  amount  of  his  bids,  and  demanded  the  goods  pur- 
chased by  him,  telling  him  at  the  same  time  that  if  he  did  not  like  the 
note  he  would  give  him  the  money,  deducting  the  discount.  The 
clerk  answered  that  "  he  knew  nothine:  and  said  nothing."  All  this 
was  in  the  presence  and  hearing  of  one  of  the  defendants ;  and  the 
clerk  when  subsequently  called  by  the  defendants  as  a  witness  testified 
that  they  expected  difticulty  and  trouble  with  the  ])laintifl'  about  the 
goods,  and  had  determined  to  say  nothing  about  the  matter  because 
they  apprehended  a  lawsuit.     It  appeared  on  the  trial  that  the  goods 


286  MILLS    V.    HUNT.     "  [CHAP.    I. 

did  not  belong  to  the  defendants,  and  that  in  the  sale  they  acted 
merely  as  agents;  but  nothing  on  that  subject  was  stated  at  the  time  of 
the  sale.  The  plaintiff  proved  the  value  of  the  fifth  parcel  and  rested. 
The  defendants'  counsel  moved  for  a  nonsuit  on  the  grounds :  1. 
That  the  contract  was  void  within  the  Statute  of  Frauds ;  2.  That  the 
tender  of  the  note  was  not  sufficient ;  ^  3.  That  the  action  wOixld  not 
lie  against  the  defendants,  they  having  acted  merely  as  agents,  the 
principals  being  known  ;  and,  4.  That  there  was  no  proof  of  damage. 
The  presiding  judge  denied  the  motion  for  a  nonsuit  [ruling  among 
other  things  that  the  whole  must  be  considered  as  an  entire  sale  '^~\  ;  and 
the  jury  under  his  charge  found  a  verdict  for  the  plaintiff,  on  which 
judgment  was  entered.  The  defendants  removed  the  record  into  the 
Supreme  Court,  where  the  judgment  was  affirmed.  See  opinion  deliv- 
ered in  Supreme  Court,  17  Wendell,  335,  et  seq.^     Whereupon  the 

1  The  arguments  and  decision  upon  this  point  are  omitted.  —  Ed. 

■i  See  17  Wend.  334.  — Ed. 

^  By  the  court,  Nklson,  C.  J.  The  material  question  in  the  case  is,  whether  there 
was  a  partial  delivery  of  the  goods  to  the  plaintiff,  so  as  to  take  the  sale  out  of  the 
operation  of  the  Statute  of  Frauds.  It  is  not  important  to  inquire  whether  the  bill 
of  parcels  constituted  a  sufficient  note  or  memorandum  in  writing,  as  the  court  below 
put  the  right  of  recovery  in  respect  to  this  objection  upon  a  partial  delivery  alone. 
If  the  ground  that  a  note  was  made  by  the  auctioneer  at  the  time  of  the  sale  suffi- 
cient to  take  the  case  out  of  the  statute  had  been  taken  at  the  trial,  probably  the 
defendants  might  have  varied  the  facts  so  as  to  have  removed  it.  The  argument  of 
the  counsel  therefore  on  this  point  must  be  laid  out  of  view. 

The  defendants  are  to  be  regarded  as  the  owners  of  all  the  goods  sold  to  the  plain- 
tiff, for  the  purpose  of  deciding  the  question  stated.  They  so  held  themselves  out  by 
the  catalogues,  and  nothing  transpired  at  the  sale  varying  the  legal  effect  of  such  con- 
duct. Honest  dealing  requires  the  auctioneer  to  disclose  in  his  catalogue  or  other- 
wise the  names  of  his  principals,  if  he  does  not  intend  to  take  their  places  in  respect 
to  the  purchasers ;  otherwise  he  would  be  enabled  to  speculate  upon  them  by  thrust- 
ing between  him  and  them  an  irresponsible  owner  in  every  case  of  an  unprofitable 
sale.  This,  however,  is  a  point  not  to  be  discussed ;  the  principle  has  been  so  long 
settled,  and  is  so  frequently  applied  in  the  dealings  of  mankind,  as  to  be  familiar  to 
every  lawyer.  Assuming  then  that  the  goods  are  to  be  viewed  as  belonging  to  the 
defendants,  and  the  sale  of  all  of  them  having  been  made  at  one  time,  has  there  been 
a  partial  delivery  which  takes  it  out  of  the  statute  V  The  question  must  be  answered 
in  the  affirmative,  unless  we  are  prepared  to  say  that  each  bid  at  an  auction,  at  which 
a  lot  of  goods  is  knocked  down,  constitutes  a  separate  and  distinct  contract  and  sale  ; 
and  which  to  be  consistent,  if  conceded,  would  necessarily  compel  us  to  say  that  in 
the  purchase  of  a  quantity  of  goods  at  a  private  sale  a  separate  and  distinct  contract 
exists  in  respect  to  each  article  within  the  Statute  of  Frauds,  where  a  separate  price 
has  been  agreed  upon,  though  the  whole  parcel  was  purcliased  at  one  time.  Tliere  is 
no  legal  or  sensible  distinction  in  this  respect  between  a  public  and  private  sale,  and 
the  same  rule  of  construction  should  be  applied  to  each. 

Tlie  question  has  been  considered  and  decided  in  the  Enghsh  courts ;  and  without 
their  authority  we  do  not  see  how  a  doubt  could  be  entertained,  whether  we  regard 
the  intent  and  understanding  of  the  parties  or  the  meaning  and  policy  of  the  Statute 
of  Frauds.  Where  the  purchase  is  made  at  one  time  and  from  the  same  individual, 
however  numerous  the  articles  may  be,  the  whole  transaction  should  be  deemed  as 
constituting  an  entire  contract,  and  the  prices  of  the  different  articles  fixed  upon  as 


SECT.    IV,]  MILLS   V.    HUNT.  287 

defendants  sued  out  a  writ  of  error,  removing  the  record  into  tliis  court, 
where  tlie  case  was  argued  by 

7\  Sedf/unc/i,  Jr.,  for  the  i)hxintiffs  in  error ; 

J.  H.  Whiting,  for  the  defendant  in  error. 

Points  for  phiintiffs  in  error :  — 

1.  The  plaintiffs  in  error  in  this  cause  were  mere  agents  for  the  sale 
of  the  property,  and  had  nothing  to  do  with  its  delivery. 

2.  The  })urchase  of  each  article  struck  off  was  a  distinct  contract.  2 
Rev.  Sts.  70,  2d  ed.  Simon  v.  Motivos,  1  W.  Black.  K.  GOO ;  Rugg  v. 
Minett,  11  East,  210  ;  Emmerson  v.  Heelis,  2  Taunt.  38. 

3.  At  all  events  the  contracts  were  distinct  in  regard  to  the  different 
owners. 

4.  Whether  this  be  so  or  not,  the  delivery  of  a  part  by  one  owner 
could  not  bind  the  auctioneer  as  to  the  part  not  delivered  by  another 
owner ;  the  delivery  not  being  in  any  respect  a  part  execution  of  the 
alleged  entire  contract  of  sale. 

5.  The  memorandum  or  bill  of  sale  is  not  sufficient  to  take  the  case 
out  of  the  Statute  of  Frauds.    Hicksv.Whitmore,  12  Wendell,  548.  .  .  . 

Points  for  defendant  in  error :  — 

1.  The  auctioneers  not  having  disclosed  their  agency  maybe  treated 
as  jirincipals.     Hanson  v.  Roberdeau,  Peake's  N.  P.  C.  120. 

but  part  and  parcel  of  it.  To  adopt  any  otlier  construction  of  sucli  a  purchase  would 
be  a  virtual  repeal  of  the  statute  for  all  useful  or  practical  purposes  in  a  large  amount 
of  sales  to  which  it  has  been  understood  as  applying.  In  the  case  of  Baldey  v.  Par- 
ker, 2  Barn.  &  Cress.  37,  the  defendant  sold  various  articles  to  the  plaintiff,  and  a  sep- 
arate price  was  agreed  upon  in  respect  to  each,  and  no  one  article  was  of  the  value  of 
£10.  The  defendant  desired  an  account  of  the  whole  to  be  made  out  and  sent  to  his 
house,  which  was  done  accordingly  ;  the  amount  of  the  goods  was  X70.  He  objected 
to  the  amount  when  presented  on  account  of  the  smallnes^  of  the  discount  for  cash, 
and  refused  to  receive  the  goods  when  tendered  to  him.  The  Chief  Justice  at  the 
trial  tliought  it  was  a  contract  for  goods  for  more  than  the  value  of  £10  within  the 
meaning  of  tlie  Statute  of  Frauds,  but  allowed  the  plaintiff  to  move  to  enter  a  ver- 
dict for  £70.  The  case  was  afterwards  moved,  but  the  whole  court  concurred  in  the 
opinion  expressed  at  nisi  prius.  Holroyd,  J.,  observes  that  at  first  it  appeared  to  have 
been  a  contract  for  goods  of  loss  value  than  .£10,  but  in  the  course  of  the  dealing  it 
grew  to  a  contract  of  a  much  larger  amount ;  at  last  therefore  it  was  one  entire  con- 
tract within  the  meaning  and  the  mischief  of  the  Statute  of  Frauds,  —  it  being  the 
intention  of  that  statute  that,  where  the  contract  either  at  the  commencement  or  at 
the  conclusion  amounted  to  or  exceeded  the  value  of  £10,  it  should  not  bind  unless 
the  requisites  there  mentioned  were  complied  with.  A  somewhat  different  opinion 
was  expressed  by  Lord  EUenborough  at  nisi  jnius,  in  the  case  of  Hodgson  i'.  Le  Bret, 
1  Campb.  233 ;  but  this  case  was  referred  to  in  Baldey  v.  Parker,  and  so  far  disre- 
garded. The  case  of  Emmerson  i'.  Heelis,  j2  Taunt.  38,  was  also  relied  on,  but  dis- 
tinguished from  the  one  under  consideration.  See  opinion  of  Best,  J.,  p.  45.  If  the 
sale  and  purchase  of  all  the  articles  at  the  same  time,  though  for  distinct  prices,  is  to 
be  considered  as  constituting  but  one  entire  contract,  then  it  is  clear  the  case  is  taken 
out  of  the  statute,  as  a  portion  of  the  articles  were  delivered  in  pursuance  of  the 
direction  of  the  defendants.  We  need  not  cite  cases  to  show  that  a  part  delivery  is 
suflBcient  under  such  circumstances.  .  .  .  Judyment  affirmed.  — Ed. 


288  MILLS   V.    HUNT.  [CHAP.    I. 

2.  The  sale,  although  in  parcels  on  distinct  biddings,  is  to  be  treated 
as  one  sale.     Baldey  v.  Parker,  2  Barn.  &  Cress.  37. 

3.  The  delivery  of  the  bill  of  parcels  with  the  partial  delivery  of  the 
goods,  takes  the  case  out  of  the  Statute  of  Fi-auds.  Descard  v.  Bond, 
Stark.  Ev.  610,  pt.  4,  note  (k)  ;  2  Rev.  Sts.  70,  §  3.  .  .  . 

After  advisement  the  following  opinions  were,  delivered :  — 
By  the  Chancellor.  The  sale  of  the  several  articles  in  this  case  was 
made  by  Mills,  Brothers  &  Co. ;  and  the  bill  of  jjarcels  made  out  in 
their  copartnership  name  without  disclosing  the  fact  that  they  were 
acting  as  the  agents  for  others.  The  mere  fact  that  they  were  auction- 
eers was  not  sufficient  notice  to  the  purchaser  that  they  were  not  sell- 
ing their  own  goods.  Jones  v.  Littledale,  1  Nev.  &  Perry's  R.  677. 
In  the  case  of  Magee  v.  Atkinson,  2  Mees.  &  Wels.  R.  440,  where  the 
broker  had  sent  in  a  note  of  the  sale  to  the  purchaser  in  his  own  name, 
it  was  held  that  evidence  of  a  custom  in  Liverpool  to  send  in  brokers' 
notes  without  disclosing  the  name  of  the  principal  could  not  be 
received  for  the  purpose  of  protecting  the  broker  from  personal  liabil- 
ity. At  this  day  the  law  must  be  considered  as  settled  that  a  vendor 
or  purchaser  dealing  in  his  own  name  without  disclosing  the  name  of 
his  pi'incipal,  is  personally  bound  by  his  contract ;  and  it  makes  no  dif- 
ference that  he  is  known  to  the  other  party  to  be  an  auctioneer  or 
broker  who  is  usually  employed  in  selling  proj^erty  as  the  agent  for 
others.  Even  where  he  discloses  the  name  of  his  princijial,  if  he  signs 
a  written  contract  in  his  own  name  merely,  which  contract  does  not 
upon  its  flice  show  that  he  was  acting  as  the  agent  of  another  or  in  an 
official  capacity  in  behalf  of  the  government,  he  will  be  personally 
bound  thereby. 

The  bill  of  parcels  which  was  delivered  in  this  case,  although  it  does 
not  upon  its  face  contain  the  necessary  requisites  to  take  the  case  out 
of  the  Statiite  of  Frauds  as  a  written  contract  for  the  sale  and  delivery 
of  the  goods,  is  still  to  be  regarded  as  evidence  that  the  several  articles 
purchased  by  Hunt  at  the  same  auction  sale,  though  in  different  bids 
and  upon  different  catalogues,  were  considered  by  the  vendors  as 
embracing  one  contract,  and  upon  which  the  vendee  was  entitled  to 
credit  for  six  months,  as  the  whole  amount  of  his  purchases  at  that  sale 
exceeded  8100.  He  was  in  the  situation  of  a  purchaser  who  goes  to  a 
store  and  buys  different  articles  at  separate  prices  for  each  article,  under 
an  agreement  for  a  credit  of  six  months  upon  approved  paper  for  the 
aggregate  amount  of  such  sales ;  in  which  case  there  can  be  no  doubt 
that  a  delivery  of  a  part  of  the  articles  so  purchased,  without  any 
objection  at  the  time  as  to  the  delivery  of  the  residue,  is  sufficient  to 
take  the  case  out  of  the  Statute  of  Frauds  as  to  the  whole  goods  so 
purchased.  Slubey  v.  Heyward,  2  H.  Black.  509 ;  Baldey  v.  Parker, 
3  Dowl.  &  Ryl.  222;  Elliott  v.  Thomas,  3  Mees.  &  Wels.  170.  The 
case  would  be  different  where  the  purchaser,  either  at  a  jDublic  or  pri- 


SECT.    IV.]  MILLS   V.    HUNT.  289 

vate  sale,  paid  for  and  took  a  delivery  of  some  of  the  separate  articles 
only,  leaving  the  residue  undelivered  and  wholly  unpaid  for;  or  Avhere 
several  articles  were  purchased  at  the  same  time  to  be  paid  for  on 
delivery,  and  the  purchaser  afterwards  received  and  paid  for  some  of 
the  separate  articles  only.  Morton's  Law  of  Vend.  59.  The  nisi  prius 
decision  of  Lord  Ellenborough  in  Hodgson  v.  Le  Bret,  1  Campb.  K. 
233,  conflicts  with  the  subsequent  decision  of  the  Court  of  King's 
Bench  in  Baldey  v.  Parker ;  and  it  was  distinctly  oveiTuled  by  the 
Court  of  Exchequer  in  the  more  recent  case  of  Elliott  v.  Thomas.  The 
delivery  in  the  j^resent  case  was  a  delivery  of  four  out  of  the  five  par- 
cels from  the  entire  bill,  and  the  only  reason  why  the  fifth  parcel  was 
not  then  delivered  was  because  it  was  not  on  the  cataloacue  of  the  ao-ent 
Avho  made  the  delivery  of  the  residue ;  but  there  was  no  intimation  at 
the  time  that  the  auctioneers  intended  to  deliver  this  part  of  the  goods 
only.  The  subsequent  refusal  to  deliver  the  fifth  parcel  was  therefore 
a  breach  of  the  contract  on  their  part,  for  Avhich  the  purchaser  was 
entitled  to  a  remuneration  in  damao:es.  .  .  . 

Upon  the  whole  there  is  no  reason  to  doubt  the  correctness  of  the 
decisions  of  the  courts  below  upon  all  the  questions  raised  in  this  case. 
I  think  the  judgment  should  therefore  be  affirmed ;  and  in  my  opinion 
it  is  a  proper  case  for  double  costs,  to  compensate  the  defendant  in 
error  for  the  extra  costs  to  which  he  has  been  subjected  by  this  unrea- 
sonable litigation. 

By  Senatok  Edwakds.  I  am  for  affirming  the  judgment  of  the 
SuiDreme  Court  for  the  following  reasons :  — 

1.  The  auctioneers,  not  having  disclosed  their  agency  and  made 
known  their  principals,  must  be  held  personally  responsible. 

2.  The  property  having  been  sold  to  the  same  individual  at  the 
same  sale  and  under  the  same  terms,  though  in  separate  parcels  and  for 
difierent  prices,  was  virtually  a  sale  under  one  contract  (Baldey  v.  Par- 
ker, 9  Com.  Law  R.  16) ;  and  therefore  a  deliveiy  of  part  of  the  goods 
was  sufficient  to  take  the  case  out  of  the  Statute  of  Frauds.  2  Starkie 
on  Ev.  610 ;  2  Rev.  Sts.  70,  §  3.  .  .  . 

Upon  the  question  being  put.  Shall  this  judgment  be  reversed?  all 
the  members  of  the  court  decided  in  the  negative. 

Whereupon  the  judgment  of  the  Supreme  Court  was  unanimously 
affii-med.'^ 

1  "  Where  at  an  auction  tlie  same  person  buys  several  successive  lots  as  they  are 
offered,  a  distinct  contract  arises  for  each  lot;  and  the  decision  to  this  effect  in  Emmer- 
son  V.  Ileelis,  2  Taunt.  88,  was  not  questioned  in  Baldey  v.  Parker,  2  B.  &  Cr.  37." 
Benj.  on  Sale,  102.  And  see  Leake  on  Contracts,  140,  ace.  See  Field  v.  Runk,  2 
Zabr.  525.  —  Ed. 


VOL.   I.  19 


290  8HINDLER   V.    HOUSTON.  [CHAP.   I. 

SHINDLER  V.  HOUSTON. 
New  York  Court  of  Appeals,  April  Term,  1848. 

[Reported  in  1  Comstock,  261.] 

On  Error  fi*om  the  Supreme  Court.  Houston  sued  Shindler  in  the 
Justices'  Court  of  the  city  of  Troy  in  assumpsit  for  the  price  of  a 
quantity  of  himber.  The  plaintiff  having  recovered,  the  defendant 
appealed  to  the  Mayor's  Court  of  that  city,  and  on  the  trial  in  that 
court  the  case  was  this:  The  plaintiff  was  the  owner  of  about 
2070  feet  of  curled  maple  plank  and  scantling,  which  he  had  brought 
to  Troy  in  a  boat,  and  which  after  being  inspected  and  measured 
was  piled  on  the  dock  apart  from  any  other  lumber.  Soon  after 
this  the  plaintiff  and  defendant  met  at  the  place  where  the  lumber 
lay.  The  plaintiff  said  to  the  defendant,  "What  will  you  give 
for  the  plank  ?  "  The  defendant  said  he  would  give  three  cents  a  foot. 
The  plaintiff  then  asked,  "  What  will  you  give  for  the  scantling  ? " 
The  defendant  replied  one  and  a  half  cents  a  foot.  The  plaintiff 
then  said,  "  The  lumber  is  yours."  The  defendant  then  told  the  plain- 
tiff to  get  the  insjjector's  bill  of  it  and  cany  it  to  Mr.  House,  who 
woiild  pay  it.  The  next  day  the  plaintiff  having  procured  the  ins2:)ec- 
tor's  bill  jiresented  it  to  House,  who  refused  to  pay  it  on  the  ground 
that  the  instructions  he  had  received  from  the  defendant  did  not  cor- 
respond with  the  plaintiff's  statement  of  the  conti'act.  There  was  no 
note  or  memorandum  of  the  contract  in  writing,  nor  was  there  any  evi- 
dence of  a  delivery  or  acceptance  of  the  lumber  except  as  above  stated. 
At  the  prices  agreed  on  the  lumber  came  to  $52.51,  no  part  of  which 
was  ever  paid.  The  Mayor's  Court  instructed  the  jury  that  if  they 
were  satisfied  that  it  was  the  intention  of  the  j^arties  to  consider  the 
lumber  delivered  at  the  time  of  the  bargain,  and  that  nothing  further 
was  agreed  or  contemplated  to  be  done  in  order  to  change  the  title  in 
or  possession  of  the  lumber,  the  plaintiff  was  entitled  to  recover ;  that 
the  sale  was  not  within  the  Statute  of  Frauds,  and  did  not  require  any 
note  or  memorandum  in  writing,  provided  they  should  find  from  the 
evidence  that  there  was  a  delivery  and  acceptance  of  the  lumber  at  the 
time  of  the  bargain.  The  defendant  excepted,  and  the  jury  found  a 
verdict  for  the  plaintiff,  on  which  judgment  was  rendered  in  his  favor. 
The  Supreme  Court,  on  writ  of  error  to  the  Mayor's  Court,  affirmed 
the  judgment  (see  1  Denio,  48),  and  the  defendant  brings  Error  to  this 
court. 

JV.  Hill,  Jr.,  for  plaintiff  in  error,  insisted  that  the  sale  was  within 
the  Statute  of  Frauds  requiring  a  note  in  writing.  There  was  no 
acceptance  or  receipt  of  the  lumber  by  the  vendee  within  the  intent 


SECT.    IV.]  SHINDLER   V.    HOUSTON.  291 

and  meaninsT  of  the  statute.  To  take  the  ease  out  of  the  statute  there 
must  be  something  more  than  would  be  sufficient  to  change  the  prop- 
erty at  common  law,  —  something  more  than  would  be  sufficient  to 
constitute  a  delivery  at  common  law.  There  should  be  (1)  a  bargain 
intended  to  change  the  right  of  property.  This  is  the  act  of  both  par- 
ties. (2)  A  delivery  of  the  property  and  the  actual  possession  to  the 
vendee,  discharged  of  all  lien  for  the  purchase-money.  This  is  the  act 
of  the  seller.  (3)  An  acceptance  and  receipt  of  the  entire  property 
and  actual  possession  of  some  part  of  the  goods  as  absolute  owner, 
discharged  of  all  lien.  These  are  the  acts  of  the  buyer.  There 
was  nothing  i>roved  in  this  case  but  the  bargain.  3  Bos.  &  Puller, 
233  ;  6  Barn.  &  Cress.  351 ;  Ch.  on  Cont.  389,  390  ;  3  Dowl.  &  Ryl. 
220,822;  2  Barn.  &  Cress.  37 ;  3  Johns.  399;  10  Bing.  101,  376;  5 
Barn.  &  Cress.  857 ;  3  Barn.  &  Aid.  321,  680 ;  5  Do.  559 ;  4  Mees.  & 
W.  155 ;  1  Dowl.  &  Ryl.  128 ;  22  Wend.  659;  1  Carr.  &  Payne,  272; 
3  Barn.  &  Cress.  1;  2  Carr.  &  Payne,  532 ;  4  Maule  &  Sel.  262 ;  9  Barn. 
&  Cress.  591;  7  T.  Rep.  15,  17;  1  C.  &  M.  333;  6  Wend.  400;  11 
Johns.  284. 

J.  A.  Spencer  and  D.  Willard,  for  defendant  in  error,  cited  Bates 
V.  Conkling,  10  Wend.  389  ;  ChapHn  v.  Rogers,  1  East,  192 ;  Jewett 
V.  Warren,  12  Mass.  300  ;  2  Kent,  Comm.  500,  501  (4th  ed.). 

Gardiner,  J.  As  no  part  of  the  purchase-money  was  paid  by  the 
vendee,  the  contract  above  stated  was  void  by  the  Statute  of  Frauds 
(2  R.  S.  136,  §  3,  subd.  3),  unless  the  buyer  "accepted  and  received" 
the  whole  or  a  part  of  the  property  sold. 

The  object  of  the  statute  was  not  only  to  guard  against  the  dis- 
honesty of  parties  and  the  perjury  of  witnesses,  but  against  the 
naisunderstanding  and  mistakes  of  honest  men.  If  the  contract  is 
reduced  to  writing  and  "  subscribed  by  the  parties  to  be  charged 
thereby,"  this  object  is  effiictually  attained.  The  writing  becomes  its 
own  interpreter.  Where  this  is  omitted,  but  the  vendee  has  paid  part 
of  the  price,  or  the  vendor  has  delivered  and  the  buyer  has  accepted  a 
portion  or  all  of  the  property  upon  the  strength  of  the  agreement, 
these  acts  not  only  indicate  deliberation  and  confidence  upon  the  part 
of  the  contractors,  but  they  furnish  unequivocal  evidence  of  the 
existence  of  a  contract  of  some  sort  between  them,  although  its 
terms  and  provisions  must  after  all  depend  upon  the  recollection  of 
witnesses. 

The  case  before  us  is  destitute  of  all  such  collateral  evidence.  No 
acts  of  the  party  sought  to  be  charged  are  proved.  We  are  presented 
with  a  naked  verbal  agreement.  The  declarations  relied  upon  as 
evidence  of  a  delivery  and  acceptance  constitute  a  part  of  the 
contract,  and  of  course  are  obnoxious  to  all  the  evils  and  every  objec- 
tion against  which  it  was  the  policy  of  the  law  to  provide. 

The  acts  of  part  payment,  of  delivery  and  acceptance  mentioned  in 


292  SHINDLER  V.    HOUSTON.  [CHAP.   I. 

the  statute  are  something  over  and  beyond  the  agreement  of  which 
they  are  a  part  performance,  and  which  they  assume  as  already 
existing.  The  entire  absence  of  such  evidence  distinguishes  the 
present  case  from  all  those  that  have  been  cited  by  the  counsel  for 
the  plaintiiF  in  support  of  this  action,  Chaplin  v.  Rogers,  1  East, 
192 ;  Jewett  v.  Warren,  12  Mass.  300  ;  Riddle  v.  Varnum,  20  Pick. 
280 ;  10  Wend.  391 ;  2  Kent,  Comm.  (4th  ed.)  500,  501.  The  strong 
case,  from  the  Pandects,  of  the  column  of  granite  is  not  an  excep- 
tion; for  it  is  fairly  to  be  inferred  that  the  consent  of  the  vendor 
that  the  purchaser  should  take  possession  was  subsequent  to  the 
sale. 

I  am  aware  that  there  are  cases  in  which  it  has  been  adjudged  that, 
where  the  articles  sold  are  ponderous,  a  symbolical  or  constructive 
delivery  will  be  equivalent  in  its  legal  effect  to  an  actual  delivery. 
The  delivery  of  a  key  of  a  warehouse  in  which  goods  sold  are 
deposited  furnishes  an  example  of  this  kind.  But  to  aid  the  plaintiff 
an  authority  must  be  shewn  that  a  stipulation  in  the  contract  of  the 
sale  for  the  delivery  of  the  key  or  other  indicia  of  possession,  will  con- 
stitute a  deliveiy  and  acceptance  Avithin  the  statute.  No  such  case 
can  be  found.  The  entire  contract  being  void  by  the  statute,  the 
stipulation  in  reference  to  a  constructive  delivery  would  fell  with  the 
other  provisions.  In  Phillips  v.  Bistolli,  2  B.  &  C.  511,  the  property 
was  sold  by  an  auctioneer  and  delivered  to  the  purchaser,  who  after 
detaining  it  three  or  four  minutes  handed  it  back,  saying  he  was  mis- 
taken as  to  the  price.  The  vendor  refused  to  receive  the  property, 
and  the  jury  found  that  the  excuse  was  false  in  fact.  The  verdict  was 
set  aside ;  the  court  saying  that  to  satisfy  the  statute  there  must  be  a 
delivery  by  the  vendor  with  an  intention  of  vesting  the  right  of 
possession  in  the  vendee,  and  there  must  be  an  actual  acceptance  by 
the  latter  *vith  the  intent  of  taking  possession  as  owner. 

This  I  apprehend  is  the  correct  rule,  and  it  is  obvious  that  it  can 
only  be  satisfied  by  something  done  subsequent  to  the  sale  unequivo- 
cally indicating  the  mutual  intentions  of  the  parties.  Mere  words  are 
not  sufficient.  3  Johns.  421.  Declarations  accompanying  an  act  and 
explanatory  of  it  are  undoubtedly  admissible  evidence  as  a  part  of  the 
res  gestce.  This  is  all  that  is  established  by  the  modern  authorities. 
12  Mass.  301 ;  1  Dallas,  171 ;  2  Barn.  &  Cress.  44 ;  3  J.  R.  421. 

In  a  word,  the  statute  of  fraudulent  conveyances  and  contracts  pro- 
nounced this  agreement  when  made  void,  unless  the  buyer  should 
"  accept  and  receive  some  part  of  the  goods." 

The  language  is  unequivocal  and  demands  the  action  of  both  parties ; 
for  acceptance  implies  delivery,  and  there  can  be  no  complete  delivery 
without  acceptance.  The  defendant  however  said  nothing  and  did 
nothing  subsequent  to  the  agreement,  except  through  his  agent  to 
repudiate  the  contract.  There  was  consequently  no  evidence  of  a 
deUvery. 


SECT.    IV.]  SHINDLER   V.    HOUSTON.  293 

I  think  therefore  the  learned  Recorder  erred  iu  submittinfr  that 
question  to  the  jury,  and  that  the  judgment  of  the  Supreme  Court 
should  be  reversed. 

The  Statute  of  Frauds  has  been  pronounced  by  high  authority 
(Kent's  Comm.  2  V.  494:)  to  be  in  many  respects  the  most  comjjre- 
.  hensive,  salutary,  and  im}jortant  legislative  regulation  on  record 
affecting  the  security  of  private  rights.  Its  benefits  it  is  believed  will 
be  most  effectually  secured  by  rejecting  refined  distinctions,  over- 
looking the  supposed  equity  of  particular  cases,  and  adhering  steadily 
to  its  language  as  the  best  exponent  of  the  intention  of  the  Legis- 
lature. 

Bkoxson,  J.  On  a  review  and  a  more  full  consideration  of  the  case 
I  am  satisfied  that  I  was  in  an  error  in  assenting  to  the  judgment 
which  was  rendei-ed  by  the  Supreme  Court.  If  we  assume  that  the 
sale  was  in  all  other  resi)ects  complete,  the  difficulty  still  remains  that 
there  w^as  no  deliverj^  of  the  goods.  Nothing  was  done.  As  was  very 
justly  remarked  by  the  defendant's  counsel,  there  was  nothing  but 
mere  words;  and  the  statute  plainly  requires  something  more;  it  calls 
for  acts.  Per  Cowen,  J.,  iu  Archer  t'.  Zeh,  5  Hill,  205.  A  Avriting 
must  be  made,  part  of  the  purchase-money  must  be  paid,  or  the  buyer 
must  accept  and  receive  part  of  the  goods.  Mere  words  of  contract, 
unaccompjuiied  by  any  act,  cannot  amount  to  a  delivery.  To  hold 
otherwise  would  be  repealing  the  statute. 

There  may  be  a  deliver)'  without  handling  the  property  or  changing 
its  position.  But  that  is  only  where  the  seller  does  an  act  by  which 
he  relinquishes  his  dominion  over  the  property  and  puts  it  in  the 
power  of  the  buyer;  as  by  delivering  the  key  of  the  warehouse  in 
which  the  goods  are  deposited,  or  directing  a  bailee  of  the  goods  to 
deliver  them  to  the  buyer,  with  the  assent  of  the  bailee  to  hold  the 
property  for  the  new  owner.  In  such  case  there  is,  in  addition  to  the 
words  of  bargain,  an  act  by  which  the  dominion  over  the  goods  is 
transferred  from  the  seller  to  the  buyer.  Here  there  was  no  delivery 
either  actual  or  symbolical. 

I  shall  not  review  the  cases  on  this  subject  further  than  to  notice 
those  supposed  to  favor  the  i)laintiff.  In  Chaplin  v.  Rogers,  1  East, 
192,  the  buyer  had  re-sold  the  property  and  his  vendee  had  carried  it 
away.  The  court  held  that  there  was  sufficient  evidence  to  carry  the 
cause  to  the  jury  on  the  question  of  delivery  to  and  acceptance  by  the 
first  purchaser.  Bates  v.  Conkling,  10  Wend.  389,  was  a  writ  of  error; 
and  the  question  of  delivery  did  not  arise,  because  as  the  Chief  Justice 
remarked  the  point  was  not  made  in  the  court  below,  whei'C  it  might 
have  been  obviated  by  testimony.  It  w^as  also  suggested  at  the  bar  in 
answer  to  this  case  that  the  question  arose  upon  a  contract  for  work 
and  labor  rather  than  a  contract  of  sale.  But  it  would  be  difficult  to 
maintain  that  doctrine.     Downs  v.  Ross,  23  Wend.  270.     It  is  enough 


294  SHINDLER  V.    HOUSTON.  [CHAP.    I. 

however  that  what  was  said  in  Bates  v.  Conkling  about  the  delivery 
of  cumbersome  articles  was  but  a  dictum,  and  not  upon  the  point  in 
judgment.  In  Jewett  v.  Warren,  12  Mass.  300,  where  logs  in  a  boom 
were  sold,  there  was  a  bill  of  parcels ;  and  no  question  upon  the 
Statute  of  Frauds  either  was  or  could  be  made.  The  question  was 
whether  there  had  been  a  sufficient  delivery  to  constitute  the  logs  a  . 
valid  pledge.  We  have  not  been  refen-ed  to  any  modern  case,  nor 
have  I  met  with  any  which  will  uphold  this  judgment.  It  is  undoubt- 
edly true  that  it  Avill  not  always  be  easy  to  make  an  actual  delivery  of 
bulky  and  ponderous  articles.  But  there  are  other  ways  of  satisfying 
the  Statute  of  Frauds.  The  parties  may  put  their  agreement  in 
AVi-iting,  or  the  buyer  may  pay  the  whole  or  some  part  of  the  purchase- 
money. 

I  am  of  opinion  that  the  judgments  of  the  Supreme  Court  and  the 
Mayor's  Court  should  be  reversed,  and  a  venire  de  novo  be  awarded. 

Wright,  J.  There  being  no  note  or  memorandum  made  in  writing 
of  the  contract  or  earnest  paid,  this  is  a  case  within  the  Statute  of 
Frauds,  unless  there  was  an  acceptance  and  receipt  of  the  whole  or  a 
part  of  the  property  by  the  buyer.  2  Rev.  Sts.  136,  §  3.  If  there  was  an 
acceptance  shewn  sufficient  to  take  the  case  out  of  the  operation  of  the 
statute,  it  was  of  all  the  lumber,  as  it  is  not  pretended  that  the  entire 
property  vested  in  the  vendee  by  the  acceptance  and  receipt  of  a  part 
thereof  The  question  therefore  for  consideration  upon  the  facts  proved 
is,  whether  there  was  an  acceptance  and  receipt  of  the  lumber  by  Shind- 
ler  the  vendee  within  the  intent  and  meaning  of  the  statute. 

It  is  to  be  regretted  that  the  plain  meaning  of  the  statute  should 
ever  have  been  departed  from,  and  that  any  thing  short  of  an  actual 
delivery  and  acceptance  should  have  been  regarded  as  satisfying  its 
requirements  when  the  memorandum  was  omitted ;  but  another  rule 
of  interpretation  which  admits  of  a  constructive  or  symbolical  delivery 
has  become'too  firmly  established  now  to  be  shaken.  The  uniform  doc- 
trine of  the  cases  however  has  been  that  in  order  to  satisfy  the  statute 
there  must  be  something  more  than  mere  words ;  that  the  act  of  accept- 
ing and  receiving  required  to  dispense  with  a  note  in  Avriting  implies 
more  than  a  simple  act  of  the  mind,  unless  the  decision  in  Elmore 
V.  Stone,  1  Taunt.  458,  is  an  exception.  This  case  however  will  be 
found  upon  examination  to  be  in  accordance  with  other  cases,  although 
the  acts  and  circumstances  relied  upon  to  shew  a  delivery  and  accept- 
ance were  extremely  slight  and  equivocal;  and  hence  the  .case  Avas 
doubted  in  Howe  v.  Palmer,  3  Barn.  &  Aid.  324,  and  Proctor  v. 
Jones,  2  Carr.  &  Payne,  534,  and  has  been  virtually  overruled  by 
subsequent  decisions.  Far  as  the  doctrine  of  constructive  delivery  has 
been  sometimes  carried,  I  have  been  unable  to  find  any  case  that  comes 
up  to  dispensing  with  all  acts  of  parties,  and  rests  wholly  upon  the 
memory  of  witnesses  as  to  the  precise  form  of  words  to  shew  a  delivery 


SECT.    IV.]  SHINDLER   V.    HOUSTON.  295 

and  receipt  of  the  goods.    The  learned  autlior  of  the  Commentaries  on 
American  Law  cites  from  the  Pandects  the  doctrine  that  the  consent 
of  the  party  upon  the  spot  is  sufficient  possession  of  a  cohimn  of  gran- 
ite, which  by  its  weight  and  magnitude  was  not  susceptible  of  any 
other  delivery.     But  so  far  as  this  citation  may  be  in  opposition  to  the 
general  current  of  decisions  in  the  common   law  courts   of  England 
and  of  this  country,  it  is  sufficient  i)erhaps  to  observe  that  the  Roman 
law  has  nothing:  in  it  analocrous  to  our  Statute  of  Frauds.     In  Elmore 
V.  Stone  expense  was  incurred  by  direction  of  the  buyer,  and  tlie  ven- 
dor at  his  suggestion  removed  the  horses  out  of  his  sale  stable  into 
another,  and  kept  them  at  livery  for  him.    In  Chaplin  v.  Rogers,  1  East, 
192,  to  which  we  were  referred  on  the  argument,  the  buyer  sold  part 
of  the  hay,  which  the  purchaser  had  taken  away ;  thus  dealing  with  it 
as  if  it  were  in  his  actual  possession.    In  the  case  of  Jewett  v.  Warren, 
12  Mass.  R.  300,  to  which  we  were  also  referred,  no  question  of  deliv- 
ery imder  the  Statute  of  Frauds  arose.     The  sale  was  not  an  absolute 
one,  but  a  pledge  of  the  property.     The  cases  of  Elmore  v.  Stone  and 
Chaplin  u.  Rogers  are  the  most  barren  of  acts  indicating  delivery,  but 
these  are  not  authority  for  the  doctrine  that  words  unaccompanied  by 
acts  of  the  parties  are  sufficient  to  satisfy  the  statute.     Indeed  if  any 
case  could  be  shown  which  proceeds  to  that  extent,  and  this  court 
should  be  inclined  to  follow  it,  for  all  beneficial  purposes  the  law  might 
as  well  be  stricken  from  our  statute-book ;  for  it  was  this  species  of 
evidence,  so  vague  and  unsatisfictory,  and  so  fruitful  of  frauds  and  per- 
juries, that  the  Legislature  aimed  to  repudiate.     So  far  as  I  have  been 
able  to  look  into  the  numerous  cases  that  have  arisen  under  the  statute, 
the  controlling  ])rinciple  to  be  deduced  from  them  is,  that  when  the 
memorandum  is  dispensed  with  the  statute  is  not  satisfied  with  any 
thing  but  ixnequivocal  acts  of  the  parties;  not  mere  words  that  are 
liable  to  be  misunderstood  and  misconstrued,  and  dwell  only  in  the 
imperfect  memory  of  witnesses.     The  question  has  been,  not  whether 
the  Avords  used  were  sufficiently  sti'ong  to  exjiress  the  intent  of  the 
parties,  but  Avhether  the  acts  connected  Avith  them,  both  of  seller  and 
buyer,  were  equivocal  or  unequivocal.     The  best  considered  cases  hold 
that  there  must  be  a  vesting  of  the  possession  of  the  goods  in  the  ven- 
dee as  absolute  owner,  discharged'  of  all  lien  for  the  price  on  the  part 
of  the  vendor,  and  an  ultimate  acceptance  and  receiving  of  the  prop- 
erty by  the  vendee,  so  unequivocal  that  he  shall  have  precluded  himself 
from  taking  any  objection  to  the  (juautuni  or  quality  of  the  goods  sold. 
Chitty  on  Contracts,  390,  and  cases  cited ;  Hilliard  on  Sales,  135,  and 
cases  cited ;  10  Bing.  102,  384.     But  Avill  proof  of  words  alone  shew 
a  delivery  and  acceptance  from  which  consequences  like  these  may  be 
reasonably  inferred,  —  especially  if  those  words  relate  not  to  the  ques- 
tion of  delivery  and  acceptance,  but  to  the  contract  itself?     A.  and  B. 
verbally  contract  for  the  sale  of  chattels  for  ready  money ;  and  without 


296  SHINDLER   V.    HOUSTON.  [CHAP.    I. 

the  payment  of  any  part  thereof  A.  says,  "  I  deliver  the  property  to 
you,"  or  "  It  is  yours,"  but  there  are  no  acts  shewing  a  change  of  pos- 
session or  from  which  the  fact  may  be  inferred.     B.  refuses  payment. 
Is  the  right  of  the  vendor  to  retain  possession  as  a  lien  for  the  price 
gone?     Or  in  the  event  of  a  subsequent  discovery  of  a  defect  in  the 
quantum  or  quality  of  the  goods,  has  B.,  in  the  absence  of  all  acts  on 
his  part  shewing  an  ultimate  acceptance  of  the  possession,  concluded 
himself  from  taking  any  objection?     I  think  not.     As  Justice  Cowen 
remarks  in  the  case  of  Archer  v.  Zeh,  5  Hill,  205,  "  One  object  of  the 
statute  was  to  prevent  perjury.     The  method  taken  was  to  have  some- 
thino-  done,  not  to  rest  every  thing  on  mere  oral  agreement."    The  acts 
of  the  parties  must  be  of  such  a  character  as  to  unequivocally  place  the 
property  within  the  power  and  under  the  exclusive  dominion  of  the 
buyer.     This  is  the  doctrine  of  those  cases  that  have  earned  the  prin- 
ciple of  constructive  delivery  to  the  ixtmost  limit.      Thus  in  Seai'le 
V.  Keeves,  2  Esp.  R.  598,  a  case  which  arose  at  a  period  when  the 
English  courts  were  more  inclined  than  recently  to  allow  of  a  con- 
structive delivery  and  acceptance,  where  a  wiitten  order  was  given  by 
the  seller  of  goods  to  the  buyer,  directing  the  person  in  whose  care  the 
goods  were  to  deliver  them,  which  order  w^as  presented  by  the  buyer, 
it  was  held  that  there  was  sufficient  delivery  within  the  statute.     So 
also  in  Hollingsworth  v.  Napier,  3  Caines  R.  182,  where  the  vendor 
delivered  to  his  vendee  a  bill  of  parcels  for  goods  lying  in  a  public 
Btore,  together  with  an  order  on  the  storekeeper  for  their  delivery,  and 
the  vendee  upon  delivering  the  order  demanded  the  goods,  which  were 
turned  out  to  him,  and  he  paid  the  amount  of  the  storage,  marked  the 
bales  with  his  initials,  and  returned  them  to  the  custody  of  the  store- 
keeper, it  was  held  that  the  statute  Avas  satisfied.     But  in  cases  like 
these  it  would  seem  now  to  be  necessary  that  the  party  having  the 
custody  of  the  goods,  and  who  is  the  agent  of  the  vendor,  should  recog- 
nize the  order  given  to  the  purchaser,  and  assent  to  retain  the  goods 
for  him.     A  delivery  to  the  vendee  of  the  key  of  the  w\arehouse  in 
which  the  goods  are  lodged,  or  other  indicia  of  property,  where  goods 
are  ponderous  and  incapable  of  being  handed  over  from  one  to  another, 
was  said  by  Lord  Kenyon  in  Chaplin  v.  Rogers,  1  East,  194,  to  be 
tantamount  to  an  actual  delivery.      In  Dodsley  v.  Varley,  12  Adol.  & 
Elhs,  632,  which  was  an  action  of  assumpsit  for  wool  bargained  and 
sold,  the  court  said :  "  We  think  that  upon  the  evidence  the  place  to 
which  the  wool  was  removed  may  be  considered  as  the  defendant's 
warehouse,  and  that  he  was  in  actual  possession  of  it  as  soon  as  it  was 
weio-hed  and  packed."     In  these  cases,  and  in  a  large  number  of  others 
that  might  be  cited,  the  circumstances  were  unequivocal  to  shew  not 
merely  a  delivery  to  and  acceptance  of  the  property  in  the  goods,  but, 
what  is  always  essential,  a  complete  acceptance  of  the  possession  by  the 
buyer.    The  fects  were  more  or  less  strong  in  the  several  cases,  but  the 


SECT.    IV.]  SHINDLER    V.    HOUSTON.  297 

acts  of  the  parties  can  scarcely  be  reconciled  with  any  other  presump- 
tion. 

On  the  other  hand,  where  the  acts  of  the  buyer  are  equivocal,  and  do 
not  lead  irresistibly  to  the  conclusion  that  there  has  been  a  transfer 
and  acceptance  of  the  possession,  the  cases  qualify  the  inference  to  be 
drawn  from  them,  and  hold  the  contract  to  be  within  the  statute.  In 
Baldey  v.  Parker,  2  B.  &  C.  37,  A.  purchased  of  B.,  a  trader,  several 
articles  amounting  in  the  whole  to  £70.  A.  marked  with  a  pencil  some 
of  the  articles,  saAV  others  marked,  and  helped  to  cut  off  others.  He 
then  requested  that  a  bill  of  the  goods  might  be  sent  to  him,  which 
was  done,  together  with  the  goods ;  but  he  declined  to  accept  them.  It 
was  held  that  there  Avas  no  delivery  and  acceptance  to  take  the  case 
out  of  the  statute;  and  Lord  C.  J.  Abl)ott,in  speaking  of  the  exception 
in  the  statute,  justly  remarked  that  "  it  Avould  be  difficult  to  find  words 
more  distinctly  denoting  an  actual  transfer  of  the  article  from  the 
seller,  and  an  actual  taking  possession  of  it  by  the  buyer."  In  Carter 
V.  Toussaint,  5  Barn.  &  Aid.  855,  the  circumstances  were  that  a  horse 
was  sold  by  verbal  contract,  but  no  time  fixed  for  the  payment  of  the 
price.  The  horse  was  to  remain  with  the  vendor  for  twenty  days 
without  charge  to  the  vendee.  At  the  expiration  of  that  time  he  was 
sent  to  grass  by  order  of  the  vendee,  and  entered  as  one  of  the  vendor's 
horses.  The  court  held  that  there  was  no  acceptance  of  the  horse  by 
the  vendee  within  the  meaning  of  the  statute.  In  Tempest  v.  Fitz- 
gerald,  3  Barn.  &  Aid.  680,  A.  agreed  to  purchase  a  horse  from  B.  for 
cash,  and  take  him  away  within  a  certain  time.  About  the  expiration 
of  that  time  A.  rode  the  horse  and  gave  directions  as  to  his  treatment, 
&c.,  but  requested  that  he  might  remain  in  the  possession  of  B.  for  a 
further  time,  at  the  expiration  of  which  time  he  promised  to  take  and 
pay  for  the  horse,  to  which  B.  assented.  The  horse  died  before  A. 
paid  the  price  or  took  it  away.  It  was  held  that  there  was  no  sufficient 
acceptance  of  the  horse  to  render  the  vendee  liable  for  the  price.  In 
Howe  V.  Palmer,  3  Barn.  &  Aid.  321,  a  vendee  ])ublicly  agreed  at  a 
public  market,  with  the  agent  of  the  vendor,  to  purchase  twelve 
bushels  of  tares  (then  in  the  vendor's  possession,  constituting  part  of  a 
larger  quantity  in  bulk)  to  remain  in  the  vendor's  possession  until  called 
for.  Tlxe  agent  on  his  return  home  measured  and  set  apart  the  twelve 
bushels.  It  was  held  that  in  this  case  there  had  been  no  acceptance, 
and  the  action  would  not  lie.  In  Kent  v.  Huskinson,  3  B.  &  P.  233,  A, 
verbally  ordered  from  B.  a  bale  of  sponge,  which  was  sent.  The  bale 
was  opened  and  examined,  and  the  sponge  returned  by  A.,  who  at  the 
same  time  wrote  a  letter  to  B.  stating  that  he  disa])proved  thereof  It 
was  held  that  A.  had  not  accepted  the  goods.  In  Proctor  v.  Jones, 
2  Car.  &  P.  532,  it  was  said  that  the  marking  of  casks  of  wine,  sold  by 
parol  and  lying  at  the  London  docks,  with  the  initials  of  the  purchaser 
at  his  request  and  in  his  presence,  was  not  a  sufficient  acceptance 


298  SHINDLER   V.    HOUSTON.  [CHAP.   I. 

within  the  statute,  at  least  if  the  time  of  payment  had  not,  when  the 
casks  were  so  marked,  been  fixed.  In  Bailey  v.  Ogden,  3  John.  R. 
399,  an  agreement  with  the  vendor,  on  a  parol  contract  for  the  sale  of 
goods,  about  the  storage  of  the  goods,  and  the  delivery  by  him  of  the 
expoi't  entry  to  the  agent  of  the  vendee,  were  held  not  to  be  sufficiently 
certain  to  amount  to  a  constructive  delivery  or  to  aiford  an  indicium 
of  ownership.  Other  comparatively  recent  English  and  American 
.  cases  might  be  cited,  shewing,  as  has  been  said  by  Mr.  Justice  Cole- 
ridge, that  "the  tenor  of  modern  "decisions  is  to  give  to  the  words  of 
the  statute  their  fullest  effect,  and  not  to  allow,  so  far  as  it  is  possible, 
of  any  constructive  deliveries  and  acceptances." 

I  think  I  may  affirm  with  safety  that  the  doctrine  is  now  clearly 
settled  that  there  must  not  only  be  a  delivery  by  the  seller,  but  an 
ultimate  acceptance  of  the  possession  of  the  goods  by  the  buyer,  and 
that  this  delivery  and  acceptance  can  only  be  evinced  by  unequivocal 
acts  independent  of  the  proof  of  the  contract.  But  if  the  principles  to 
be  deduced  from  the  recent  decisions  were  otherwise,  I  should  not  be 
disposed,  in  the  face  of  the  plain  and  obvious  meaning  of  the  statute,  to 
follow  them.  The  Statute  of  Frauds  of  29  Car.  2  (and  it  is  in  substance 
re-enacted  in  this  State)  was  justly  pronounced  nearly  half  a  century 
since,  by  an  eminent  British  judge,  "  one  of  the  wisest  laws  in  the 
statute-book."  Its  provisions  apply  with  singular  wisdom  and  benefi- 
cence "  to  the  daily  contracts  and  practical  affiiirs  of  mankind,"  relieving 
them  of  vagueness  and  uncertainty,  and  checking  to  some  extent  "  the 
restless  and  reckless  spirit  of  litigation."  Whilst  this  meritorious  law 
is  in  the  statute-book  it  is  our  business  to  enforce  it  in  good  faith,  and 
according  to  its  plain  letter  and  spirit,  without  studying  to  fritter  away 
its  vitality  in  the  attempt  to  uphold  contracts  which  by  its  provisions 
are  clearly  void. 

I  am  of  the  opinion  that  the  judgment  of  the  Supreme  Court  should 
be  reversed. 

RuGGLES,  JoxES,  and  Johnson,  JJ.,  concurred, 

Jewett,  C.  J.,  and  Gray,  J.,  delivered  opinions  in  favor  of  affirming 
the  judgment.  Judgment  reversed. 


SECT.    IV.]  SEYMOUR   V.    DAVIS.  299 


H.  F.  &  L.  SEYMOUR  v.   DAVIS. 

Superior  Court  of  the  City  op  New  York,  November  8,  9,  and 

December  16,  1848. 

[Reported  in  2  Sandford,  239.] 

Assumpsit  for  the  price  of  one  liimclred  barrels  of  cider,  delivered 
by  the  plaintiffs  to  the  defendant  on  or  about  March  25th,  1847.  At 
the  trial  before  Sandford,  J.,  in  April  last,  the  plaintiffs,  who  resided  at 
Hartford,  Connecticut,  proved  the  deliveiy  of  the  cider  to  the  defend- 
ant in  New  York,  and  that  the  latter  was  to  pay  four  dollars  per  barrel 
in  a  note  at  sixty  days. 

The  defendant  then  proved  that  in  November,  184G,  a  verbal  agree- 
ment was  made  between  him  and  the  plaintiffs  by  which  they  agreed 
to  deliver  to  him  in  New  York  from  five  to  eight  hundred  barrels  of 
cider  during  the  fall  and  spring  following,  of  the  best  quality,  in  chest- 
nut barrels,  at  such  times  and  in  such  quantities  or  shipments  as  the 
plaintiffs  could  make  it  convenient  to  send,  for  which  the  defendant 
agreed  to  pay  four  dollars  per  barrel  by  remitting  to  the  plaintiffs  his 
indorsed  note  at  sixty  days  for  the  amount  of  each  shipment  as  the 
same  should  be  received  by  him.  The  business  of  the  plaintiffs  at  the 
time  of  these  transactions  was  buying  cider  of  farmers  who  made  it, 
and  refining  and  selling  it.  They  delivered  several  parcels  of  cider  to 
the  defendant  after  making  the  agreement  and  prior  to  the  delivery  of 
that  in  question,  for  each  of  which  he  gave  the  indorsed  note  stipulated 
in  the  agreement. 

The  quantity  of  no  one  of  these  previous  deliveries  was  shown,  nor 
the  aggregate  quantity.  The  notice  attached  to  the  defendant's  plea 
claimed  that  280  barrels  in  all  had  been  delivered  under  the  con- 
tract. 

The  defendant  offered  evidence  to  prove  that  part  of  the  -cider 
delivered  before  the  receipt  of  the  hundred  barrels  in  question  turned 
out  to  be  a  bad  article,  becoming  thick  and  milky  and  having  a  bad 
smell ;  and  that  he  could  not  sell  a  part  of  it  by  reason  of  such  defect 
of  quality,  and  lost  the  price  of  other  ])arts  of  it  which  he  had  sold. 
The  defendant  claimed  to  recoup  his  damages  sustained  by  reason  of 
the  bad  cider  so  delivered  to  him  prior  to  March,  by  having  the  same 
deducted  from  or  applied  to  extinguish  the  price  of  the  one  hundred 
barrels  in  question.  The  plaintiffs  objected  to  the  evidence,  and  the 
judge  excluded  it. 

The  defendant  then  gave  evidence  to  show  that  the  hundred  barrels 
was  in  part  defective,  and  that  he  sustained  damages  thereby.  The 
judge  instructed  the  jury  that  the  plaintiffs  were  entitled  to  recover 


300  SEYMOUR   V.    DAVIS.  [CHAP.    I. 

the  actual  value  of  the  one  hundred  barrels  of  cider  at  the  time  it  was 
delivered.  The  jury  rendered  a  verdict  for  the  plaintiffs  for  $316.50. 
The  defendant  moves  for  a  new  trial  on  a  bill  of  exceptions. 

C  D.  and  G.  JOaioton^  for  the  defendant. 

J.  H.  Raymond^  for  the  plaintiffs. 

By  the  Court.  Sandford,  J.  The  defendant  makes  a  point 
that  the  cider  contracted  to  be  delivered  was  not  susceptible  of  de- 
livery at  the  time  the  contract  was  made,  but  was  to  be  bought  of 
farmers  by  the  plaintiffs,  and  prepared  for  market  by  refining  it,  &c. ; 
and  therefore  the  as^reement  was  one  for  work  and  labor,  and.  not 
within  the  Statute  of  Frauds. 

The  law  is  perfectly  well  settled,  both  here  and  in  England,  that  this 
was  a  contract  for  the  sale  of  goods.  Downs  u.  Ross,  23  Wend.  270 ; 
Garbutt  y.  Watson,  5  B.  &  Aid.  613.  There  is  no  doubt  that  the 
agreement  in  question  was  void  by  the  statute. ' 

It  was  proved  that  the  plaintifts  proceeded  to  make  deliveries  of 
cider  at  several  tlifferent  times  between  November  and  April,  all  of 
which  were  paid  for  as  delivered,  except  the  hundred  barrels  for  which 
this  suit  was  brought,  and.  which  were  delivered,  in  March  or  early  in 
April.  There  is  no  evidence  showing  what  quantity  was  delivered  on 
the  several  occasions  prior  to  the  last ;  but  it  was  not  pretended  that 
the  entire  quantity  received  by  the  defendant  was  equal  to  the  smallest 
quantity  specified  in  the  contract  of  sale.  The  notice  attached  to  the 
defendant's  plea  states  that  280  barrels  were  delivered  in  the  whole, 
and  the  proof  falling  short  of  establishing  that  quantity  it  is  safe  to 
assume  that  not  more  than  half  of  the  smallest  quantity  contracted 
for  was  ever  forwarded  by  the  plaintiffs.  On  the  proof  given  the 
defendant  contends,  first,  that  the  delivery  and  acceptance  of  these 
several  lots  or  portions  of  the  cider  took  the  contract  out  of  the 
statute ;  second,  that  whether  originally  void  or  not  it  has  been  per- 
formed by  both  parties  without  objection,  and  neither  party  can  now 
avail  himself  of  the  statute  to  avoid  any  liability  he  may  have  incurred 
in  that  performance  ;  third,  that  the  whole  should  be  regarded  as  one 
transaction  growing  out  of  one  contract,  and  any  loss  or  damage  the 
defendant  may  have  sustained  by  defects  in  any  part  of  the  cider 
in  any  of  the  lots  delivered  ought  to  be  allowed  to  him  by  way  of 
recoupment  against  the  price  of  the  same  or  any  other  of  the  lots  or 
parcels. 

1.  As  to  the  defendant's  first  proposition.  It  is  true  that  where  an 
order  for  goods,  or  a  contract  for  the  sale  of  goods,  embraces  several 
distinct  lots  or  parcels,  and  a  part  of  the  goods  is  delivered  and 
accepted  at  the  time  of  the  sale,  the  contract  is  not  within  the  statute. 
What  will  be  deemed  a  cotemporary  delivery  it  is  foreign  to  our 
present  purpose  to  inquire.  Whenever  the  question  has  been  presented 
on  such  a  contract,  the  effort  has  been  to  establish  that  there  were 


SECT.    IV.]  SEYMOUR   V.    DAVIS.  301 

separate  and  flistinct  sales  of  the  respective  parcels.  If  the  court 
ascertained  that  it  was  a  single  sale,  though  consisting  of  several 
articles,  it  has  been  uniformly  held  that  the  statute  did  not  apjjly  where 
a  part  had  been  received  and  accepted.  This  was  the  ground  of  the 
decision  in  the  most  recent  as  well  as  the  strongest  case  we  have  seen, 
Scott  V.  The  Eastern  Counties  Railway  Company,  12  Mees.  &  W.  33. 
There  the  contract  was  for  lamps  ;  one  of  which,  a  very  large  and 
peculiar  lamp,  for  a  junction,  was  to  be  manufactured,  and  required  a 
long  time  for  its  completion.  All  the  others  were  delivered  at  or  about 
the  time  of  the  contract.  The  acceptance  of  those  was  held  to  satisfy 
the  Statute  of  Frauds  as  well  as  the  Statute  9  Geo.  IV.  c.  14,  §  7,  ex- 
tending its  provisions  to  contracts  for  goods  subsequently  to  be  made, 
because  the  whole  formed  one  entire  contract. 

The  case  of  Vincent  v.  Germond,  11  Johns.  283,  cited  })y  the 
defendant,  does  not  decide  that  the  acceptance  of  a  part  after  the 
making  of  the  contract  Avill  relieve  it  from  the  operation  of  the  statute. 
It  was  decided  that  there  was  a  sufficient  delivery  to  take  the  case  out 
of  »the  statute,  meaning  at  the  time  of  the  sale.  This  is  apparent  from 
a  careful  examination  of  the  case,  which  was  submitted  without  argu- 
ment, and  is  very  briefly  stated  by  the  reporter.  When  the  sale  was 
made,  the  four  oxen  were  in  the  plaintifl''s  clover-field,  and  he  said  he 
had  had  one  or  two  injured  by  feeding  there.  The  defendant  said  he 
would  take  them  at  his  own  risk,  and  Jthey  must  remain  where  they 
were  till  he  completed  his  drove,  Avhen  he  would  take  them  away.  A 
short  time  after  he  came  and  took  away  three  of  them,  without  saying 
any  thing  to  the  plaintiff.  The  fourth  had  died  in  the  mean  time  from 
eating  clover.  The  court  said  the  taking  them  in  this  mode,  with 
what  occurred  at  the  sale,  warranted  tlie  inference  of  a  delivery  ;  that 
the  defendant  dealt  with  the  oxen  as  his  own,  and  as  if  in  his  actual 
possession,  in  virtue  of  the  original  contract  and  transfer  of  the 
property. 

We  can  find  no  authority  for  saying  that  a  parol  agreement  to 
deliver  goods  at  a  future  time  becomes  valid  as  to  the  Avhole  by  the 
delivery  of  a  portion  at  or  subsequent  to  such  time.  It  is  stated  in 
one  approved  treatise,  as  the  result  of  the*  decisions  in  England,  that 
where  the  contract  is  to  deUver  goods  in  parts  or  parcels  at  different 
intervals,  at  a  certain  price  for  each  part,  although  the  contract  may  be 
void  for  want  of  writing  as  regards  the  executory  part  of  it,  yet  the 
prices  of  the  parts  actually  received  are  recoverable  under  a  count  for 
goods  sold.  Chitty  on  Cont.  396.  We  will  not  stop  to  inquire  how 
far  this  is  correct  as  to  the  price,  or  whether  the  recovery  must  not  be 
on  a  quantum  meruit.  We  need  only  say  that  no  authority  goes 
further  than  this,  and  this  does  not  go  far  enough  to  sustam  the  defend- 
ant's position. 

In  Mavor  v.  Pyne,  3  Bing.   285,  where  the  agreement  was  for  an 


302  SEYMOUR   V.    DAVIS.  [CHAP.    I. 

illustrated  publication,  to  be  issued  in  twenty-four  monthly  numbers,  at 
a  guinea  a  number,  and  was  void  by  the  statute,  it  was  held  the  pub- 
lisher could  recover  for  the  numbers  actually  delivered.  The  court 
said  he  could  not  recover  on  the  original  contract,  but  he  was  entitled 
to  be  paid  for  the  numbers  received  by  the  defendant;  that  the 
parties  meant  each  number  was  to  be  paid  for  as  it  came  out,  and 
the  subscription  was  to  be  considered  as  a  divisible  contract. 

Chief  Baron  Hale  in  1662  held  that  several  deliveries  made  under 
an  entire  agreement,  if  severally  accepted,  made  so  many  several  con- 
tracts. Barker  v.  Sutton,  1  Campb.  N.  P.  55,  note.  And  see  to  the 
same  effect,  Bowker  v.  Hoyt,  18  Pick.  555. 

Recurring  to  the  agreement  before  us,  it  was  for  the  delivery  of 
from  five  to  eight  hundred  barrels  of  cider  during  the  ensuing  five  or 
six  months,  in  such  quantities  or  shipments  as  the  sellers  might  find 
convenient,  at  the  price  of  four  dollars  per  barrel,  to  be  paid  for  each 
shipment  when  received  in  an  indorsed  note  at  sixty  days.  There  was 
no  written  evidence  of  the  contract  nor  payment  of  any  part  of  the 
price.  There  was  no  acceptance  or  receipt  of  the  goods  by  the  buyer ; 
and  by  its  stipulations  there  Avas  to  be  no  delivery  of  any  until  an 
undefined  future  period. 

Now  the  statute  declares  such  a  contract  to  be  absolutely  void.  It 
was  undeniably  void  when  it  was  made,  and  for  the  month  or  two 
intervening  between  that  time  and  the  first  delivery  of  the  cider.  Did 
the  acceptance  of  that  first  parcel  breathe  into  this  void  contract  the 
breath  of  life,  and  make  it  valid  for  the  whole  quantity  of  goods  em- 
braced in  it  ? 

We  cannot  so  regard  the  effect  of  such  partial  delivery.  We  think 
the  contract,  if  void  when  it  is  made,  can  never  become  a  valid  agree- 
ment. Subsequent  acts  may  establish  a  new  contract  of  sale  between 
the  parties,  either  express  or  implied,  and  embodying  more  or  less  of 
the  terms  of  the  original  arrangement ;  but  they  cannot  reanimate  the 
previous  void  agreement.  For  each  delivery  of  cider  the  sellers  were 
entitled  to  be  paid ;  not  by  force  of  the  void  contract  of  sale,  but  by 
force  of  a  new  one,  founded  on  the  receipt  and  acceptance  of  the 
specified  goods. 

If  the  delivery  of  the  first  parcel  of  cider  established  the  entire 
agreement,  it  would  follow  that  if  the  sellers  had  decHned  to  deliver 
any  more  the  buyer  could  have  sued  them,  and  recovered  damages 
for  its  breach ;  and  if  the  buyer  had  refused  to  receive  the  residue  of 
the  five  hundred  barrels,  the  sellersL  could  have  enforced  the  sale  by 
action  against  him.  These  are  necessary  and  inevitable  consequences 
resulting  from  the  effect  claimed  to  be  given  to  the  acceptance  of  a 
part  of  the  cider  under  this  once  void  agreement ;  for  it  cannot  be 
revived  partially  by  such  an  act.  It  is  entire  and  valid  or  it  is  all 
alike  null  and  inoperative.     The  defendant's  counsel  were  unwilling  to 


SECT.    IV.]  SEYMOUR   V.    DAVIS.  303 

maintain  that  such  an  acceptance  of  a  part  would  enable  either  party 
to  enforce  the  agreement  as  to  the  residue  ;  but  we  think  tliis  position 
must  be  maintained,  or  the  whole  argument  fails. 

Our  view  of  the  law  is,  that  the  agreement  made  between  the  par- 
ties in  November  was  void,  and  Avas  never  capable  of  being  enforced 
by  either  party;  that  the  delivery  and  acceptance  of  the  several 
shipments  of  cider,  forwarded  under  the  agreement  or  in  consequence 
of  it,  made  so  many  several  and  distinct  contracts  of  sale,  upon  each 
of  which  each  party  had  all  the  actions  and  remedies  incident  to  a 
sale.  The  plaintiffs  could  recover  the  value  of  each  sliijtinent  upon  its 
being  accepted,  and  the  defendant  could  reduce  or  defeat  the  recovery 
by  proving  fraud  or  any  other  defect  in  the  sale. 

2.  The  defendant's  next  ground  was  that,  although  the  contract 
were  void,  it  has  been  pei'formed  by  both  parties  without  objection ; 
and  neither  party  can  now  set  up  the  statute  to  avoid  any  liability  he 
may  have  incurred  in  that  performance. 

As  to  this  point  it  is  not  correct  to  assume  that  the  contract  has 
been  performed.  It  never  was  performed  to  the  extent  of  half  of  the 
stipulated  quantity.  We  have  already  said  that  in  respect  of  each 
shipment  accepted,  each  party  had  a  perfect  remedy  as  upon  a  valid 
sale  and  purchase  of  the  quantity  contained  in  such  shipment.  Neither 
party  could  set  up  the  Statute  of  Frauds  to  defeat  or  impair  the  rem- 
edy of  the  other  ibr  or  upon  such  shipment,  for  the  plain  reason  that 
the  statute  had  nothing  to  do  with  it.  It  was  simply  a  sale  of  so  much 
cider  delivered  and  accepted  at  the  time.  But  we  cannot  assent  to  the 
proposition  intended  by  the  defendant  in  his  point,  that,  because  the 
contract  though  void  has  been  performed  in  part,  to  the  extent  of 
such  performance  it  is  to  be  deemed  an  entire,  single,  and  valid  con- 
tract, upon  the  terms  stipulated  in  November,  for  all  the  cider  deliv- 
ered between  November  and  May.  This  would  be  doing  violence  to 
the  Statute  of  Frauds,  and  the  reasons  we  have  given  show  that  it  can- 
not be  maintained  as  law.  Each  shipment  must  be  regarded  as  a  sale 
by  itself  of  the  quantity  accepted,  independent  of  the  previous  void 
contract. 

3.  The  defendant's  third  proposition,  that  the  whole  of  the  ship- 
ments should  be  regarded  as  one  transaction  growing  out  of  one 
contract  is  inadmissible  U2)0n  the  same  grounds  which  Ave  have  stated 
in  examining  the  previous  points.  The  one  contract  relied  upon  to 
bring  all  these  shipments  together  Avas  void,  and  therefore  was  no  con- 
tract, and  each  must  stand  or  fall  by  itself  As  they  were  distinct 
sales,  they  cannot  be  regarded  as  one  transaction,  so  as  to  entitle  the 
defendant,  in  a  suit  for  the  price  of  the  last  parcel  delivered,  to  have 
alloAved  to  him  his  damages  growing  out  of  any  of  the  previous  deliA'- 
erics.  The  defendant  does  not  ask  to  set  off  these  damages ;  and  the 
doctrine  of  recoupment  is  limited  to  damages  arising  from  or  growing 


804  FROSTBURG  MINING  CO.  V.  NEW  ENGLAND  GLASS  CO.      [CHAP.   I. 

out  of  the  contract  upon  which  the  action  is  brought.     Cram  v.  Dresser, 
2  Sanclf.  120. 

This  disposes  of  the  principal  questions  raised  at  the  trial.  The 
objections  to  the  judge's  charge  are  untenable.  There  was  no  dis- 
puted fact  in  respect  of  the  delivery  of  the  cider ;  and  whether  the 
last  was  a  separate  transaction  or  not  was  a  question  of  law,  and  as 
such  it  has  been  argued  and  considered.  As  to  the  instruction  rela- 
tive to  the  offer  to  return  the  cider  last  delivered,  it  was  entirely  cor- 
rect. The  offer  referred  to  by  the  witnesses  was  nearly  a  month  after 
its  receipt,  and  related  to  fifteen  or  twenty  barrels  only,  out  of  one 
hundred  delivered.  In  the  view  we  have  taken  of  the  law,  the  charge 
was  decidedly  favorable  to  the  defendant. 

Motion  for  new  trial  deUied} 


THE  FROSTBURG  MINING  COMPANY  v.   THE  NEW 
ENGLAND  GLASS  COMPANY. 

Supreme   Judicial  Court  op   Massachusetts,  November  Term, 

1851. 

\Reported  in  9  Cushing,  115.] 

This  was  an  action  of  assumpsit  for  goods  sold  and  delivei'ed,  to 
which  the  defendants  pleaded  the  general  issue.  It  was  tried  in  this 
court  before  Bigelow,  J.,  and  reported  by  him  to  the  full  court. 

The  facts  are  sufiiciently  stated  in  the  judgment.  If  the  court  shall 
be  of  opinion  that  upon  the  facts  stated  there  was  a  sufficient  acceptance 
by  the  defendants  of  the  coal  to  satisfy  the  Statute  of  Frauds,  the  case 
shall  be  referred  to  an  assessor  to  determine  the  amount  of  damages ; 
otherwise  the  plaintiffs  shall  Ijecome  nonsuited. 

I.  J.  Austin,  for  the  plaintiffs,  cited  Rev.  Sts.  c.  74,  §  4 ;  29  Car.  II. 
c.  3,  §  17 ;  Morton  v.  Tibbett,  15  A.  &  E.  (x.  s.)  428  ;  Snow  v.  War- 
ner, 10  Met.  132  ;  Hart  v.  Sattley,  3  Campb.  528  ;  Anderson  v.  Hodg- 
son, 5  Price,  630 ;  Addison  on  Contracts,  71 ;  Clark  v.  Baker,  11  Met. 
186;  Hanson  v.  Armitage,  5  B.  &  Aid.  557;  Norman  v.  Phillips,  14 
M.  &  W.  277;  Irvine  v.  Stone,  6  Cush.  508;  Acebal  v.  Levy,  10 
Bing.  376;  Coxe  v.  Harden,  4  East,  211;  Stanton  v.  Eager,  16  Pick. 
467. 

J^.  Buttrick,  for  the  defendants,  cited  Snow  v.  Warner,  10  Met.  132 ; 
Nicholle  v.  Plume,  1  C.  &  P.  272 ;  Astey  v.  Emery,  4  M.  &  S.  262 ; 
Hanson  v.  Armitage,  5  B.  &  Aid.  557 ;  Jordan  v.  Norton,  4  M.  &  W. 

»  See  Sale  v.  Darragh,  2  Hilton,  184;  Chapin  v.  Potter,  1  id.  366.— Ed. 


SECT.    IV.]      FROSTBURG  MINING  CO.  V.  NEW  ENGLAND  GLASS  CO.         305 

155 ;    Shincller  v.  Houston,    1    Comst.  261 ;   Johnson   v.  Dotlgson,  2 
M.  &  W.  656;  Acebal  v.  Levy,  10  Bing.  376. 

Fletcher,  J.  This  is  an  action  of  assumpsit  for  goods  sold  and 
delivered.  Upon  the  trial  it  appeared  by  the  testimony  of  Mr.  Addi- 
son Child  that  he  was  the  agent  of  the  jdaintiffs,  who  did  their  busi- 
ness in  Baltimore,  Maryland;  that  about  the  lOtli  March,  18-49,  he 
received  from  the  agent  of  the  defendants,  who  do  their  business  in 
Cambridge  and  Boston,  a  verbal  order  for  a  cargo  of  coal,  to  be  shipped 
by  the  plaintiffs  from  Baltimore  in  a  vessel  drawing  not  more  than  ten 
feet  of  water,  at  a  freiglit  not  over  $2.25  a  ton.  This  order  the  wit- 
ness forwarded  to  the  agent  of  the  plaintiffs  in  Baltimore ;  and  on  the 
14th  April,  1849,  the  cargo  was  shipped  on  board  a  schooner  which 
drew,  when  fully  loaded,  nine  feet  and  nine  inches  only. 

By  the  bill  of  lading  the  cargo  was  consigned  to  Mr.  Child  the 
plaintiffs'  agent,  or  his  order,  for  the  defendants.  This  bill  of  lading 
was  forwarded  by  the  phiintiffs  to  Mr.  Child,  and  received  by  him  in 
due  course  of  mail  on  the  lOth  or  17th  of  April,  and  specified  the 
freight  to  be  82.45  a  ton.  On  the  day  it  was  received  it  was  indoi-sed 
by  Child,  and  together  with  a  bill  of  the  coal  left  by  him  in  the  count- 
ing-room of  the  defendants'  agent,  who  was  at  that  time  absent.  As 
soon  as  the  defendants'  agent  returned,  he  sent  back  the  bill  of  lading 
and  refused  to  receive  the  coal. 

The  said  bill  for  the  coal  reduced  the  price  twenty  cents  a  ton,  so 
that  the  freight  on  the  same,  to  be  paid  by  the  defendants,  need  not 
exceed  their  limits  of  $2.25  a  ton. 

On  the  passage  from  Baltimore  to  Boston  the  vessel  in  which  the 
coal  was  shipped  foundered.  After  being  raised  and  repaired,  she 
arrived  in  Boston,  when  the  plaintiffs  by  their  aforesaid  agent  tendered 
the  coal  to  the  defendants,  who  refused  to  receive  it. 

It  was  proved  on  the  trial  that,  by  the  usage  of  the  coal  trade 
between  Baltimore  and  Boston,  when  coal  is  ordered  in  Boston  from 
Baltimore  the  delivery  of  it  on  board  a  vessel  consigned  to  the  person 
ordering  it  is  a  compliance  with  the  order,  and  the  coal  is  thereafter 
at  the  risk  of  the  party  ordering  it. 

The  defence  is  that,  according  to  the  provisions  of  the  Statute  of 
Frauds,  this  being  a  contract  for  the  sale  of  goods,  wares,  and  mer- 
chandise, for  the  price  of  fifty  dollars  or  more,  and  there  being  no  note 
or  memorandum  of  the  bargain  in  writing,  the  contract  was  not  bind- 
ing unless  the  purchaser  shall  accept  and  receive  part  of  the  goods,  or 
give  something  in  earnest  to  bind  the  bargain  or  in  i)art  payment. 

There  was  nothing  given  in  earnest  or  in  part  payment.  The  only 
question  is,  whether  the  defendants  did  accept  and  receive  the  goods 
or  any  part  of  them. 

That  there  was  no  actual  manual  taking  or  occupation  of  the  coal 
by  the  defendants,  is  quite  clear. 

VOL.  I.  20J 


806  FROSTBURG  MINING  CO.  V.  NEW  ENGLAND  GLASS  CO.      [CHAP.   I. 

As  soon  as  the  defendants'  agent  had  knowledge  that  the  bill  of  lad- 
ing was  left  at  his  counting-room,  he  forthwith  sent  it  back  to  the 
plaintiffs'  agent,  and  expressly  refused  to  receive  the  coal.  When  the 
coal  arrived  and  Avas  tendered  to  the  defendants'  agent  he  at  once 
refused  to  receive  it ;  so  that  the  defendants  have  promptly  repelled 
all  attempts  to  make  an  actual  delivery  of  the  coal  to  them,  and  have 
promptly  refused  to  accept  and  receive  the  coal  or  any  part  of  it. 

But  the  learned  counsel  for  the  plaintiffs  maintains  with  much  abil- 
ity that  it  is  not  necessary  that  there  should  be  an  actual  manual  tak- 
ing or  occupation  of  the  coal,  but  that  there  may  be  a  constructive 
accepting  and  receiving,  and  that  the  receiving  on  board  the  vessel  was 
a  sufficient  accepting  and  receiving  by  the  defendants. 

The  proposition  of  the  plaintiffs'  counsel,  that  there  may  be  a  con- 
structive accepting  and  receiving,  or  a  receiving  without  the  actual 
manual  occupation  by  the  purchaser^  seems  to  be  well  sustained  by  the 
authorities.  Therefore  in  many  cases  it  is  made  a  question  to  the 
jury,  whether  the  purchaser  by  his  mode  of  acting  or  forbearing  to  act, 
or  by  some  acquiescence,  has  not  accepted  the  goods,  though  there  has 
been  no  actual  manual  taking  and  occupation  of  them  by  him. 

The  further  j^roposition  of  the  learned  counsel  for  the  i:)laintiffs,  that 
the  acceptance  and  receipt,  to  satisfy  the  Statute  of  Frauds,  are  not 
such  as  to  preclude  the  purchaser  from  afterwards  objecting  to  the 
quantity  or  quality  of  the  goods,  is  certainly  fully  sustained  by  the  case 
of  Morton  v.  Tibbett,  15  Adol.  &  Ellis,  (n.  s.)  428. 

This  case  in  this  particular  differs  from  many  previous  cases,  which 
are  all  carefully  referred  to  and  commented  on  by  the  Chief  Justice  of 
the  Queen's  Bench,  in  delivering  the  opinion  of  the  court. 

In  Morton  v.  Tibbett  the  receipt  of  the  goods  is  considered  as  a  sub- 
stitute for  writing,  leaving  to  the  purchaser  the  same  right  to  object 
that  the  contract  has  not  been  complied  with  which  he  would  have  if 
the  contract  had  been  in  writing. 

The  other  and  most  material  proposition  on  behalf  of  the  plaintiffs, 
that  the  coal  when  delivered  on  board  the  vessel  was  accepted  and 
received  by  the  defendants  within  the  provision  of  the  statute,  remains 
to  be  considered. 

That  a  delivery  to  a  carrier  is  not  sufficient  to  satisfy  the  statute,  as 
a  general  proposition,  is  undoubtedly  true,  and  is  A^ery  properly  admitted 
by  the  plaintiffs'  counsel.  But  it  is  maintained  that  the  master  of  the 
vessel,  under  the  particular  cii'cumstances  of  the  case,  was  an  agent  to 
accept  to  satisfy  the  statute,  because  in  the  first  place  he  was  a  carrier 
nominated  by  the  defendants.  But  the  facts  shew  that  the  verbal 
order  of  the  defendants  was  merely  to  have  the  coal  shipped  by  the 
plaintiffs  fi-om  Baltimore  in  a  vessel  drawing  not  more  than  ten  feet  of 
water,  at  a  freight  not  over  12.25  a  ton.  No  reference  was  made  to 
any  particular  vessel  or  master.     Even  this  very  general  order  was  not 


SECT.    IV.]      FROSTBURG  MINING  CO.  V.  NEW  ENGLAND  GLASS  CO.         307 

complied  with  by  tlio  i)I:iintiffs,  as  the  freight  was  *'2.45  a  ton  instead 
of  82.25  as  was  ordered. 

This  dei^arture  in  the  price  of  the  freight  would  perhaps  of  itself 
be  sufficient  to  exempt  the  defendants  from  the  liability  to  take  and 
pay  for  the  coal.  But  it  is  not  necessary  to  put  the  case  on  that  ground, 
or  attacli  any  importance  to  that  point. 

The  order  as  to  a  vessel  was  very  general,  reterring  to  no  particular  ves- 
sel or  master,  specifying  only  the  draught  of  water  and  price  of  freight. 

The  master  was  merely  a  carrier,  and  the  taking  by  him  would  in  no 
sense  and  upon  no  principle  be  regarded  as  a  receipt  by  the  vendee. 

The  case  of  Morton  v.  Tibbett  was  much  stronger  than  the  present. 
There  the  defendant  himself  sent  a  particular  lighterman  to  receive 
the  Avheat.  But  the  delivery  to  the  lighterman  was  not  considered  to 
be  a  receipt  by  the  vendee,  though  other  acts  of  the  vendee  tending 
to  shew  an  acceptance  by  him  were  regarded  as  sufficient  to  justify  a 
verdict  for  the  plaintiff 

So  also  in  Bushel  and  others  v.  Wheeler,  which  is  reported  in  connec- 
tion with  Morton  v.  Tibbett,  the  vendee  ordered  the  goods  to  be  for- 
warded by  a  particular  slooj).  Yet  the  delivery  on  board  the  sloop 
was  not  regarded  as  a  receipt  by  the  vendee  within  the  statute,  though 
the  subsequent  acts  and  forbearing  to  act  on  the  part  of  the  vendee 
were  held  to  be  sufficient  to  go  to  the  jury,  to  find  an  actual  receipt  by 
the  vendee. 

It  is  therefoi*e  quite  clear  that  a  delivery  on  board  the  vessel  in  this 
case  cannot  be  regarded  as  a  recei2:)t,  "within  the  provision  of  the  stat- 
ute, by  the  vendee,  on  the  ground  that  the  defendant  ordered  the  coal 
to  be  forwarded  in  that  way. 

But  it  is  further  maintained  for  the  plaintiff  that  the  master  of  the 
vessel  was  an  agent  to  accept  Avithin  the  statute,  because  the  usage  of 
trade  made  him  such  in  the  coal  trade  between  Boston  and  Baltimore. 
The  usage  as  shewn  was  that  when  coal  is  ordered  in  Boston  from 
Baltimore  the  delivery  of  it  on  board  a  vessel  consigned  to  the  person 
ordering  it  is  in  compliance  with  the  order,  and  the  coal  is  thereafter 
at  the  risk  of  the  party  ordering  it. 

It  does  not  in  terms  appear  whether  or  not  this  usage  apphes  to 
mere  verbal  orders,  which  are  invalid  by  the  Statute  of  Frauds. 

Nor  is  it  shewn  upon  what  ground  this  usage  can  be  set  up  and 
maintained  against  established  provisions  and  principles  of  law.  Upon 
general  principles  of  mercantile  law,  when  a  person  accepts  a  written 
order  and  delivers  goods  on  board  a  vessel  according  to  the  order,  con- 
signed to  the  person  ordering  them  in  common  form,  they  are  then  of 
course  at  the  risk  of  the  consignee. 

When  orders  have  been  received  and  executed,  and  delivery  has 
been  made  to  the  master  of  the  ship,  and  bills  of  lading  signed  and 
forwarded,  the  seller  is  functus  officio  and  can  do  nothing  more,  except 
so  far  as  he  may  have  a  right  of  stoppage  in  transitu. 


308  Mc  KNIGHT   V.    DUNLOP.  [CHAP.    I. 

It  is  unnecessary  to  consider  how  far  there  could  be  any  usage  affect- 
ing the  rights  of  the  j^arties  in  this  case,  as  it  is  quite  clear  that  the 
case  is  not  within  the  usage  set  up  and  relied  upon.  The  usage  is  said 
to  be  that,  when  coal  ordered  is  delivered  on  board  a  vessel  consigned 
to  the  party  ordering  it,  that  is  a  compliance  with  the  order,  and  the 
coal  is  thereafter  at  the  risk  of  the  party  ordering  it. 

But  in  the  present  case  the  coal  was  not  consigned  to  the  party 
ordering  it,  but  on  the  contrary  was  consigned  to  the  j^laintiffs'  own 
agent.  By  the  bill  of  lading  the  coal  was  to  be  delivered  to  Addison 
Child  or  his  assigns.  But  the  bill  of  lading  expressed  that  it  was  to 
be  delivered  to  Addison  Child  for  the  New  England  Glass  Company ; 
and  when  the  bill  of  lading  was  received  by  the  consignee  he  indorsed 
it  and  offered  it  to  the  defendants'  agent,  which  it  is  said  was  a  sub- 
stantial compliance  with  the  alleged  custom.  The  supposed  custom 
required  the  coal  to  be  consigned  to  the  defendants,  but  it  was  in  fact 
consigned  to  the  plaintiffs'  agent.  This,  so  far  from  being  a  substantial 
compliance  Avith,  was  the  widest  possible  departure  from  the  custom. 

The  bill  of  lading  gave  the  defendants  no  right  to  or  conti'ol  over 
the  coal,  and  Avlien  indorsed  and  offered  to  the  defendants'  agent  was 
promptly  rejected. 

There  having  therefore  been  no  acceptance  of  the  coal  by  the 
defendants  to  satisfy  the  Statute  of  Frauds,  according  to  the  provision 
of  the  report  the  plaintiffs  must  become  nonsuit. 

Plaintiffs  nonsuit. 


McIQ^IGHT  V.  DUNLOP. 
New  York  Court  of  Appeals,  December  Term,  1851. 

[Reported  in  1  Selden,  537.] 

This  suit  was  commenced  by  Mc  Knight  against  Dimlop  in  the 
Mayor's  Court  of  the  city  of  Albany.  Mc  Knight  recovered  a  judg- 
ment in  that  court.  Dunloj)  removed  the  cause  to  the  Supreme  Court 
by  a  writ  of  error,  where  the  judgment  of  the  Mayor's  Court  was 
affirmed.  From  the  latter  judgment  Dunlop  appealed  to  this  court. 
Mc  Knight  the  plaintiff  proved  on  the  trial  that  between  the  1st  and 
6th  of  June,  1844,  he  made  a  contract  with  Dunlop  the  defendant 
below  for  the  purchase  from  the  latter  of  5000  bushels  of  old  barley 
malt.  The  price  to  be  paid  by  Mc  Knight  for  the  malt  was  to  be 
governed  by  the  first  sale  made  by  Dunlop  in  the  city  of  Albany. 
Payments  were  to  be  made  by  Mc  Knight  in  his  own  note  at  three 
months  whenever  11000  worth  of  malt  was  delivered.    Mc  Knight 


SECT.  IV.]  Mcknight  v.  dunlop.  309 

proved  that  Dunlop  delivGred  to  him  about  1400  bushels  of  this  malt 
in  ditl'ercnt  i)ortions  and  at  differeut  times  between  the  latter  part  of 
August  and  the  latter  part  of  September,  when  Dunlop  refused  to 
deliver  to  the  plaintiff  any  more  malt.  Shortly  after  this  refusal  the 
plaintiff  by  his  agent  demanded  from  the  defendant  the  delivery  of  the 
balance  of  the  malt.  The  price  of  malt  rose  soon  after  the  1st  of  June. 
The  defendant  moved  for  a  nonsuit  on  the  ground  that  no  valid  con- 
tract had  been  j.roved.  This  motion  was  denied.  The  defendant 
introduced  evidence  which  tended  to  shew  that,  after  he  refused  to 
deliver  to  the  i)laintiff  the  balance  of  the  malt  under  the  contract  for 
5000  bushels,  the  plaintiff  and  defendant  made  another  contract  for 
3000  bushels,  including  what  the  former  had  i)reviously  received.  This 
last  contract  was  to  be  reduced  to  writing ;  but  the  contract  never  was 
drawn  up  and  executed  by  the  parties.^  .  .  .  The  Recorder  charged  the 
jury  that,  if  they  found  the  contract  for  5000  bushels  of  malt  had  been 
made  by  the  parties,  and  that  the  defendant  had  delivered  any  part 
of  the  5000  bushels  under  the  contract,  he  Avas  bound  to  deliver  the 
whole;  and  the  plaintiff  was  entitled  to  recover  damages  for  the  non- 
delivery of  such  part  of  the  5000  bushels  as  had  not  been  delivered ; 
and  the  measure  of  damages  consisted  solely  in  the  difference  between 
the  contract  price  and  the  market  price  of  the  malt  at  the  time  of  the 
defendant's  refusal  to  deliver ;  and  that  this  difference  was  all  which 
the  plaintiff  was  entitled  to  recover.  The  defendant  requested  the 
Recorder  to  charge  that,  if  the  jury  found  that  a  new  agreement  had 
been  made  between  the  parties  whereby  the  defendant  was  to  deliver 
to  the  plaintiff  3000  bushels  of  malt,  including  that  already  delivered, 
the  former  contract  Avas  rescinded,  and  the  plaintiff  was  not  entitled  to 
recover  damasres  for  the  non-fulfilment  thereof.  The  Recorder  refused 
SO  to  charge,  and  the  defendant's  counsel  excepted.  The  jury  lound 
for  the  plaintiff  6581.82. 

/S.  Stevens,  for  appellant.  I.  The  alleged  agreement  of  June,  1844, 
for  the  breach  of  which  the  plaintiff  claimed  to  recover,  was  void  by 
the  Statute  of  Frauds,  there  being  no  note  or  memorandimi  of  it  in 
writing  subscribed  by  the  parties,  nor  any  part  of  the  barley  delivered 
by  the  defendant,  nor  any  part  of  the  purchase-money  paid  by  the 
plaintiff  at  the  time  when  the  alleged  agreement  was  made.  2  Rev. 
Sts.  136,  §  3  ;  Shindler  v.  Houston,  1  Comst.  263.  1.  There  is  no  pre- 
tence that  the  contract  was  hi  writing,  or  that  any  i)art  of  the  pur- 
chase-money Avas  paid.  2.  A  delivery  of  j^art  of  the  barley  (if 
such  Avere  the  fact)  tAVO  months  after  the  alleged  verbal  agreement 
Avas  made,  Avould  not  make  the  contract  valid  so  that  an  action  could 
be  maintained  for  the  non-delivery  of  the  residue.  To  make  such  a 
contract  valid,  the  statute  requires  that  the  Avhole  or  a  part  of  the 
goods  or  chattels  sold  be  delivered  by  the  vendor  and  accepted  by 
1  The  parts  omitted  have  no  connection  with  the  Statute  of  Frauds.  —  Ed. 


310  Mcknight  v.  dunlop.  [chap.  i. 

the  vendee  at  the  time  of  the  contract.  3.  There  is  no  evidence  that 
any  part  of  the  barley  was  deUvered  by  the  defendant  to  the  plaintiff 
under  the  alleged  contract ;  on  the  contrary  the  proof  shews  that  it 
was  not  so  delivered.  The  Recorder  therefore  erred  in  submitting  that 
question  to  the  jury.     2  Comst.  265. 

II.  The  Recorder  erred  in  refusing  to  charge  the  jury  that  if  they 
should  find  that  a  new  agreement  had  been  made  between  the  parties 
whereby  the  defendant  was  to  deliver  to  the  plaintiff  3000  bushels  of 
malt,  including  that  already  delivered,  such  new  agreement  rescinded 
the  former  contract.  The  necessary  legal  effect  of  such  new  contract 
was  an  abandonment  of  the  former  verbal  agreement.  No  right  of 
action  had  accrued  under  the  former  agreement  when  the  subsequent 
one  was  made.  But  if  it  were  otherwise,  it  was  entirely  competent 
for  tlie  parties  by  parol  to  rescind  or  abandon  the  former  verbal  agree- 
ment, and  substitute  another  in  its  place.  The  consideration  for  the 
subsequent  agreement  was  sufficient  to  support  it.  .  .  . 

JV.  Hill,  Jr.,  for  respondent.  I.  The  contract  for  the  5000  bushels 
of  malt  was  not  void  by  the  Statute  of  Frauds,  a  part  of  the  malt 
having  been  accepted  and  received  by  the  buyer.  2  Rev.  Sts.  135-6, 
§  3,  subd.  2.  1.  The  acceptance  and  receipt  of  part  of  the  malt  was 
proved  by  several  witnesses,  and  the  jury  have  found  that  it  was 
deUvered  under  and  in  pursuance  of  the  contract.  2.  The  delivery 
need  not  take  place  at  the  time  of  the  contract,  but  if  made  under 
and  in  pvirsuance  of  it,  though  afterwards,  the  statute  is  satisfied. 
20  Wend.  61 ;  12  Metcalf,  428 ;  11  Mass.  6 ;  1  Pick.  480.  3.  Con- 
ceding that  the  contract  was  not  obligatory  until  the  first  delivery 
under  it,  that  is  immaterial;  the  question  being  whether  a  vahd 
contract  existed,  not  when  it  was  made.  20  Wend.  61  ;  11  Mass. 
6,  8,  9. 

II.  The  court  below  did  not  err  in  refusing  to  charge  the  jury  that 
the  making  of  the  pretended  new  agreement  precluded  a  recovery  for 
the  breach  of  the  previous  contract.  1.  There  was  no  evidence  of  the 
existence  of  a  new  agreement,  but  only  of  a  negotiation  on  the  sub- 
ject. It  was  expressly  understood  that  the  new  agreement  should  be 
reduced  to  wi'iting.  Dunlop  promised  to  draw  it  up,  which  he 
neglected ;  and  it  was  therefore  "  inchoate  only,  and  had  no  binding 
efficacy  or  legal  existence."  7  Halst.  Rep.  177 ;  19  John.  205. 
2.  The  charge  requested  erroneously  assumed  that,  if  a  new  agreement 
was  made,  it  necessarily  extinguished  Mc  Knight's  right  of  action  for  a 
breach  of  the  former  one,  and  therefore  the  refusal  Avas  proper.  The 
right  of  action  having  once  vested  could  only  be  destroyed  by  a 
release,  or  an  accord  and  satisfaction,  not  by  a  mere  executory  con- 
tract. 1  Hill,  488  ;  5  Hill,  76  to  78 ;  23  Wend.  306.  Where  a  charge 
is  requested  which  the  court  cannot  legally  sanction  without  altera- 
tion, it  may  be  refused  absolutely.  1  Peters,  328 ;  1  Hill,  347 ; 
3  Denio,  594,  598-9 ;  1  Comst.  79.  .  .  . 


SECT.    IV.]  Mc  KNIGHT   V.   DUNLOP.  311 

Paige,  J.  It  is  objected  on  the  part  of  the  flefendant  to  the  plain- 
tiff's recovery  that  the  delivery  of  part  of  the  malt  after  the  time  of 
makinix  the  contract  did  not  take  it  out  of  the  Statute  of  Frauds.  The 
Revised  Statutes,  2  V.  136,  §  3,  provide  that  every  contract  for  the 
sale  of  goods,  &c.,  for  the  price  of  $50  or  more,  shall  be  void,  unless  — 
(1)  A  note  or  memorandum  of  the  contract  be  made  in  writing  and 
subscribed  by  the  i)arties  to  be  charged  thereby ;  or  (2)  Unless  the 
buyer  shall  accept  and  receive  part  of  the  goods,  &c. ;  or  (3)  Unless 
the  buyer  shall  at  the  time  pay  some  part  of  the  purchase-money.  If  part 
payment  of  the  purchase-money  is  relied  upon  to  except  th^  contract 
from  the  operation  of  the  statute,  it  must  by  the  terms  of  the  statute 
be  made  at  the  time  the  contract  is  entered  into.  But  when  the  validity 
of  the  contract  depends  upon  the  acceptance  and  receipt  of  a  i)art  of 
the  goods,  the  statute  omits  to  require  the  acceptance  and  receipt  to 
be  at  the  time  of  the  making  of  the  contract. 

The  old  Statute  of  Frauds  did  not  specify  the  time  when  either  the 
goods  were  to  be  accepted  and  received,  or  a  part  of  the  purchase- 
money  was  to  be  paid.  1  Rev.  L,  of  1813,  79,  §  15.  The  chapter  of 
frauds,  as  reported  by  the  Revisers,  required  as  well  the  acceptance  and 
receipt  of  a  part  of  the  goods  as  the  payment  of  a  part  of  the  purchase 
money  to  be  at  the  time  of  the  making  of  the  contract.  The  Legisla- 
ture struck  out  of  the  subdivision  as  reported,  in  relation  to  the  accept- 
ance and  receipt  of  a  part  of  the  goods,  the  words  "at  the  thne,"  which 
confined  the  acceptance  and  receipt  of  the  goods  to  the  time  the  con- 
tract was  entered  into.  (See  Report  of  Revisers.)  This  action  of  the 
Legislature  is  a  very  clear  indication  of  their  intention  to  provide  that  a 
contract  for  the  sale  of  goods  for  the  price  of  ^50  or  more  should  be  valid 
if  a  part  of  the  goods  sold  were  accepted  and  received  under  and  in 
pursuance  of  the  contract,  although  after  the  time  of  the  making  of  it. 
And  this  is  the  judicial  construction  which  has  been  given  to  the  statute. 
In  Sprague  v.  Blake,  20  Wend.  63,  Judge  Cowen,  Avith  the  concurrence 
of  his  associates,  held  that  the  statute  does  not  i-equire  that  the  part 
acceptance  of  the  goods  should  be  at  the  time  the  oral  contract  is 
made.  He  says :  "  The  authorities  upon  the  Statute  of  Frauds  allow 
of  an  oral  order  at  one  day,  and  an  acceptance  at  another"  by  the 
purchaser  or  his  agent.  The  cases  of  Chaplin  v.  Rogers,  1  East,  192  ; 
of  Vincent  v.  Germond,  11  John.  283 ;  of  Jennings  v.  Webster,  7  Cow. 
262 ;  and  of  Cutwater  v.  Dodge,  «fcc.,  6  Wend.  397,  are  all  authorities 
to  shew  that  a  subsequent  acceptance  and  receipt  of  a  part  of  the 
goods  under  a  parol  contract  make  the  contract  good  within  the 
Statute  of  Frauds.  It  was  held  by  the  Supreme  Judicial  Court  of 
Massachusetts  in  Thompson  v.  Alger,  12  Met,  435,  that  even  the  pay- 
ment of  a  part  of  the  purchase-money  after  the  time  of  entering  into 
the  parol  contract  takes  the  contract  out  of  the  o]icration  of  our  Stat- 
ute of  Frauds.     That  Avas  an  oral  contract  made  in  this  State  for  the 


312  Mcknight  v.  dunlop.  [chap.  i. 

purchase  of  stock  of  the  Hudson  and  Berkshire  R.  R.  Co.  Dewey,  J., 
in  that  case  says  that  before  payment  of  a  part  of  the  purchase-money 
neither  party  would  be  bound  by  the  terms  of  the  oral  contract.  "The 
vendee  would  be  under  no  obligation  to  make  a  payment,  and  the 
vendor  under  no  obligation  to  receive  one.  But  when  actually  made 
and  accepted  with  the  full  concun-ence  of  both  parties,  then  the  con- 
tract takes  effect ;  then  a  part  payment  of  the  purchase-money  has 
been  made,  and  then  the  parties  have  made  a  valid  contract."  If  the 
contract  is  not  in  law  deemed  to  be  made  until  the  part  payment  of 
the  purchase-money,  and  the  previous  invalid  oral  agreement  is  merely 
referred  to  to  ascertain  the  terms  of  the  subsequent  valid  contract,  the 
decision  of  the  Siipreme  Judicial  Court  of  Massachusetts  may  be 
regarded  as  sound.  This  view  of  the  case  was  taken  by  that  court  in 
Whit  well,  &c.,  V.  Wyer,  11  Mass.  6,  and  in  Damon  •  v.  Osborn,  1  Pick. 
480.  In  Saunderson  v.  Jackson,  2  Bos.  &  Pul.  238,  the  court  connected 
a  letter  from  the  vendor  to  the  purchaser  with  a  previous  memorandimi, 
not  signed  by  the  parties,  stating  the  terms  of  the  agreement,  in  order 
to  make  a  sufficient  written  note  or  memorandum  to  take  the  case  out 
of  the  Statute  of  Frauds.  The  oral  contract  may  be  considered  good 
as  a  proposition,  and  the  subsequent  delivery  and  acceptance  of  the 
whole  or  a  part  of  the  goods  as  an  acceptance  of  the  proposition,  and 
the  final  conclusion  of  a  valid  agreement.  In  such  case,  there  being  no 
statutory  inhibition,  it  is  admissible  to  connect  the  delivery  and  accept- 
ance with  the  previous  proposition  or  oral  conti'act,  in  order  to  make 
out  a  valid  contract. 

In  this  case  the  jury  having  found  that  the  part  delivery  of  the  malt, 
between  the  latter  part  of  August  and  the  latter  part  of  September, 
was  made  under  the  previous  oral  contract  for  the  sale  of  5000  bushels  of 
malt,  that  contract  was  therefore  valid  within  the  Statute  of  Frauds. 

The  charge  of  the  Recorder  was  in  all  respects  correct.  His  instruc- 
tion to  the  jury  in  relation  to  the  rule  of  damages  was  in  strict  accord- 
ance with  the  authorities.  The  plaintiff  was  entitled  to  recover  as 
damages  the  difference  between  the  contract  price  of  the  balance  of  the 
malt  which  the  defendant  refused  to  deliver,  and  its  market  value  at 
the  time  of  the  refusal.  9  Wend.  134,  5;  7  Hill,  61,  2 ;  7  Cow.  681, 
687  ;  24  Wend.  322. 

The  Recorder  committed  no  error  in  refusing  to  charge  as  requested. 
Before  the  pretended  new  contract  for  3000  bushels  of  malt  was  made, 
the  previous  contract  had  been  Adolated  by  the  defendant,  and  a  right 
of  action  had  accrued  to  the  plaintiff  for  such  \aolation.  Whei'cver  a 
right  of  action  has  once  vested  in  a  party,  it  can  only  be  destroyed  by 
a  release  under  seal,  or  by  the  receipt  of  something  in  satisfaction  of 
the  wrong  done.  23  Wend.  309;  1  Hill,  486,  488;  Willoughby  v. 
Backhouse,  2  Barn.  &  Cress.  821 ;  5  Hill,  77,  78.  If  the  Recorder  had 
charged  that  the  new  agreement  rescinded  the  previous  contract,  and 


SECT.    IV.]  MARSH   V.    HYDE.  313 

was  a  bar  to  tlie  plaintiif's  recovery  of  damages  for  its  violation,  he 
would  have  committed  an  error.  The  plaintiff's  claim  to  damages 
formed  no  part-  of  the  consideration  of  the  second  agreement.  Prior 
to  the  making  of  that  agreement,  the  previous  contract  by  the  defend- 
ant's violation  was,  at  the  election  of  the  plaintiff,  at  an  end  ;  and  in 
lieu  of  his  right  to  take  the  benefit  of  the  contract,  the  plaintiff  liad  a 
perfect  right  of  action  against  the  defendant  for  his  refusal  to  fulfil  it. 
The  first  contract  having  been  put  an  end  to  by  the  defendant,  it  Avas 
competent  for  the  plaintiff  to  enter  into  a  new  agreement  with  him, 
without  a  waiver  of  or  prejudice  to  his  remedy  for  the  violation  of  the 
previous  contract.  .  .  . 

I  am  of  oi)inion,  and  such  is  the  opinion  of  the  court,  that  the  judg- 
ment of  the  Supreme  Court  shouhl  be  affirmed  with  costs. 

Foot,  J.  An  examination  of  the  facts  and  the  law  of  this  case  has 
led  me  to  a  conclusion  that  the  views  which  the  Supreme  Court  have 
taken  of  it  are  correct. 

A  subsequent  delivery  and  acceptance  of  a  i:)art  of  the  malt  under 
the»  contract,  as  found  by  the  jury,  is  sufficient  to  take  the  case  out  of 
the  statute.  Sprague  v.  Blake,  20  Wend.  R.  61,  and  cases  there  cited ; 
also  Vincent  v.  Germond,  11  J.  R.  283. 

The  instruction  asked  for  by  the  appellant  in  regard  to  the  second 
agreement  did  not  go  far  enough  to  cut  off  the  respondent's  right  of 
recovery  on  the  first  one.  The  rule  is  well  settled  that,  when  a  right 
of  action  has  accrued,  it  can  only  be  destroyed  by  a  release  under  seal 
or  the  acceptance  of  something  in  satisfiiction.  Admitting  as  claimed 
by  the  appellant  that  a  new  agi-eement  may  be  substituted  in  the  place 
and  in  satisfaction  of  a  previous  one  already  broken,  the  instruction 
asked  fiuled  to  reach  the  gist  of  the  matter,  viz.,  that  the  new  agree- 
ment was  made  and  accei)ted  in  lieu  and  satisfaction  of  the  prior  one : 
it  only  covered  the  fiict  that  the  new  agi'eement  embraced  the  malt 
already  delivered.  Xor  on  the  proof  could  it  go  farther,  as  there  was 
none  to  shew  that  the  parties  intended  by  the  new  agreement  to 
embrace  a  satisfaction  of  the  damages  for  the  breach  of  the  former 
one.  .  .  .  •  •  Judgment  affirmed. 


WARREN  MARSH  a^d   Others,   v.  LEONARD   HYDE,  Jk. 

Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1855. 

[Reported  in  3  Gray,  331.] 

AcTiox  of  contract  on  a  verbal  agreement  for  the  sale  by  defend- 
ant to  the  plaintiffs  of  two  mows  of  hay,  stored  in  two  separate  barns, 
and  containing  about  twenty  tons,  at  the  rate  of  fourteen  dollars  a 


314  MAESH   V.    HYDE.  [CHAP.    I. 

ton.  The  case  was  referred  by  rule  of  court.  At  the  hearing  before 
the  referee  there  was  evidence  to  prove  a  verbal  agreement  for  the 
sale  of  the  hay  at  the  price  named,  to  be  paid  for  as  it  was  delivered ; 
and  that  the  defendant  at  different  times,  some  days  afterwards,  deliv- 
ered three  loads  of  the  hay,  amounting  in  all  to  about  two  tons,  and 
then  refused  to  deliver  the  remainder.  The  defendant  objected  that 
the  contract  was  within  the  Statute  of  Frauds ;  and  the  referee  reported 
the  facts  so  as  to  present  this  question  to  the  court. 

C.  C.  Nutter  S  T.  F.  Nutter,  for  the  plaintiffs. 

H.  C.  Ilutchins,  for  the  defendant. 

BiGELOw,  J.  The  report  of  the  referee  presents  the  question 
whether  the  contract  was  binding  on  the  parties  under  the  Statute  of 
Frauds.  Rev.  Sts.  c.  74,  §  4.  The  defendant's  objection  is  put  on  the 
ground  that,  there  having  been  no  delivery  of  any  part  of  the  hay  at 
the  time  the  agreement  was  entered  into  for  its  sale  and  purchase,  the 
subsequent  delivery  of  the  three  loads  to  [by  ?]  the  defendant  Avill  not 
avail  to  take  the  case  out  of  the  operation  of  the  statute ;  and  that  the 
delivery  of  the  hay  under  the  circumstances  proved  only  establishes  three 
different  and  distinct  contracts  for  each  load ;  so  that  an  action  could 
have  been  maintained  by  the  seller  for  each  load  as  it  was  delivered. 

But  this  position  cannot  be  maintained  upon  any  reasonable  and 
just  construction  of  the  language  of  the  statute ;  nor  is  it  supported 
by  a  consideration  of  the  purposes  and  objects  which  the  statute  was 
intended  to  accomplish.  There  is  nothing  in  the  statute  which  fixes 
or  limits  the  time  within  which  a  purchaser  is  to  accept  and  i-eceive 
part  of  the  goods  sold,  or  give  something  in  earnest  to  bind  the  bar- 
gain or  in  part  payment.  It  would  fully  satisfy  its  terms  if  the  deliv- 
ery or  part  payment  were  made  in  pursuance  of  a  contract  previously 
entered  into.  In  New  York  it  is  expressly  provided  that  the  part  pay- 
ment under  the  contract  shall  be  made  "  at  the  time."  Rev.  Sts.  of 
IsT.  Y.  pt.  2,  c.  7,  tit.  2,  §  3.  But  no  such  language  is  found  in  any  part 
of  our  statute.  Nor  can  we  see  any  good  reason  for  implying  that  any 
such  limitation  was  intended  by  its  provisions. 

The  great  purpose  of  the* enactments  commonly  known  as  the  Stat- 
ute of  Frauds  is  to  guard  against  the  commission  of  perjury  in  the 
proof  of  certain  contracts.  This  is  effected  by  providing  that  mere 
parol  proof  of  such  contracts  shall  be  insufficient  to  establish  them  in 
a  court  of  justice.  In  regard  to  contracts  for  sales  of  goods,  one  mode 
of  proof  which  the  statute  adopts  to  secure  this  object  is  the  delivery  of 
part  of  the  goods  sold.  But  this  provision  does  not  effectually  prevent 
the  commission  of  perjury ;  it  only  renders  it  less  probable  by  rendering 
proof  in  support  of  the  contract  more  difficult.  So  in  regard  to  other 
provisions  of  the  same  statute ;  perjury  is  not  entirely  prevented  by 
them;  the  handwriting  of  a  party  to  be  charged,  or  the  agency  of 
the  person  acting  in  his  behalf,  may  still  be  proved  by  the  testimony 


& 


SECT.    IV.]  MARSH    V.    HYDE.  315 

of  witnesses  who  .swear  falsely.  Absolute  prevention  of  perjury  is 
not  possible.  In  carrying  this  great  i)urpose  of  the  statute  into 
practical  operation,  it  can  add  no  security  against  the  danger  of  per- 
jury that  the  act,  proof  of  which  is  necessary  to  render  a  contract 
operative,  is  not  [sic]  contemporaneous  with  the  verbal  agreement.  A 
memorandum  in  writing  will  be  as  effectual  against  ])crjury,  although 
signed  subsequently  to  the  making  of  a  verbal  contract,  as  if  it  had 
been  executed  at  the  moment  when  the  i)arties  consummated  their 
agreement  by  word  of  mouth.  So  proof  of  the  delivery  of  goods  in 
pursuance  of  an  agreement  for  their  sale  previously  made,  will  be  as 
efficacious  to  secure  parties  against  false  swearing  as  if  the  delivery 
had  accompanied  the  verbal  contract.  It  is  the  fact  of  delivery  under 
and  in  pursuance  of  an  agreement  of  sale,  not  the  time  when  the 
delivery  is  made,  that  the  statute  renders  essential  to  the  proof  of  a 
valid  contract.  It  is  to  be  borne  in  mind  that  in  all  eases  where  there 
is  no  memorandum  or  note  in  wi'iting  of  the  bargain,  the  verbal  agree- 
ment of  the  parties  must  be  proved.  The  statute  does  not  prohibit 
verbal  contracts.  On  the  contrary  it  presupposes  that  the  terms  of 
the  contract  rest  in  parol  proof;  and  only  requires,  in  addition  to  the 
proof  of  such  verbal  agreement,  evidence  of  a  delivery  or  part  pay- 
ment under  it.  It  does  not  therefore  change  the  nature  of  the  evidence 
to  be  offi2red  in  support  of  the  contract.  It  merely  renders  it  neces- 
sary for  the  party  claiming  under  it  to  shew  an  additional  f\ict  in  order 
to  make  it  "  good  and  valid." 

The  fallacy  of  the  argument  pressed  by  the  counsel  for  the  defend- 
ant seems  to  us  to  consist  in  assuming  that  the  contract  takes  its  legal 
force  and  effect  from  the  time  when  its  tei-ms  are  verbally  agreed 
upon ;  and  that  therefore,  being  void  when  made,  it  cannot  become 
valid  by  any  subsequent  act  of  the  parties.  It  would  be  more  correct 
to  say  that,  until  the  formalities  required  by  the  statute  are  complied 
with,  there  is  no  legal  and  valid  contract  entered  into.  The  terms 
verbally  agreed  upon  between  the  parties  amount  to  little  else  than  a 
proposition  for  a  contract ;  and  it  is  not  until  delivery  of  part  of  the 
goods  takes  place,  or  part  payment  is  made,  that  it  assumes  the  qualities 
of  a  lesal  contract ;  in  the  same  manner  as  the  written  memorandum 
of  the  previous  verbal  agreement  of  the  parties  becomes  in  law  the 
binding  agreement  between  them.  It  is  not  therefore  the  subsequent 
delivery  of  goods  which  gives  vitality  and  force  to  a  contract  previously 
void.  Until  the  delivery  is  made  no  binding  contract  exists ;  and 
when  it  takes  place  the  act  of  the  parties  unites  with  their  ])revious 
verbal  understanding  to  create  a  full,  complete,  and  obligatory  agree- 
ment. In  all  cases  like  the  present  a  single  inquiry  operates  as  a  test 
by  which  to  ascertain  whether  a  contract  is  binding  upon  the  parties 
under  the  Statute  of  Frauds.  It  is  whether  the  delivery  and  accept- 
ance, Avhcnever  they  took  place,  were  in  pursuance  of  a  previous  agree- 


316  RODGERS   V.    PHILLIPS.  [CHAP.    I. 

ment.  If  the  verbal  contract  is  proved,  and  a  delivery  in  pursuance 
of  it  is  shown,  the  requisites  of  the  statute  are  fulfilled.  Such  was  the 
proof  in  the  present  case.  The  plaintiffs,  if  they  had  proved  only  a 
delivery  of  three  loads  of  hay,  would  not  have  made  out  their  case 
against  the  defendant.  But  having  also  proved  a  previous  contract 
of  sale  for  the  whole  of  the  hay,  as  well  as  a  delivery  under  that  con- 
tract, they  had  established  by  competent  proof  a  valid  agreement, 
binding  on  the  j^arties,  for  breach  of  which  the  plaintiiFs  might  well 
maintain  an  action  for  damages.  Elliott  v.  Thomas,  3  M.  &  W.  170  ; 
Scott  V.  Eastern  Counties  Railway,  12  M.  &  W.  33 ;  Vincent  v.  Ger- 
mond,  11  Johns.  283;  Davis  v.  Moore,  13  Maine,  424;  Damon  v. 
Osborn,  1  Pick.  476 ;  Thompson  v.  Alger,  12  Met.  435.  The  case  of 
Seymour  v.  Davis,  2  Sandf.  239,  cited  by  the  defendant,  has  been  sub- 
stantially overruled  by  the  later  case  in  the  Court  of  Appeals  of  New 
York  of  Mc  Knight  v.  Dunlop,  1  Seld.  537. 

It  is  true,  as  the  counsel  for  the  defendant  suggests,  that  an  action 
would  lie  against  the  plaintiffs  to  recover  the  price  of  each  separate 
load  of  hay  as  it  wfis  delivered ;  but  this  does  not  show  that  there 
was  not  an  entire  contract  for  the  sale  and  delivery  of  all  the  hay  stored, 
in  the  two  barns.  The  defendant  could  maintain  an  action  to  recover 
the  price  of  each  load,  because  such  Avere  the  terms  of  pajiuent  agreed 
upon.  So  too  he  could  recover  damages  for  a  breach  of  the  contract, 
if  the  plaintiffs  had  refused  to  accept  and  receive  the  residue  of  the 
hay  after  the  delivery  of  the  three  loads. 

Judgment  for  the  plaintiffs. 


WILLIAM  M.  RODGERS  and  DILLER  LUTHER,  Respondents, 
V.  LEWIS  PHILLIPS  .vnd  FREDERICK  C.  OAKLEY,  Appel- 
lants. 

New  York  Court  of  Appeals,  June  14,  1869. 

[Reported  in  40  New  York  Reports,  519.] 

This  action  was  brought  to  recoV^er  the  purchase  price  of  188  tons 
of  coal,  amounting  to  the  sum  of  $651.30.  The  coal  was  contracted 
to  be  sold  by  the  plaintiffs  to  the  defendants  by  an  oral  agreement 
entered  into  prior  to  the  26th  day  of  June,  1858.  By  the  tenns  of  this 
agreement  it  was  to  be  shipj^ed  on  board  a  boat  at  Richmond  in  the 
State  of  Pennsylvania  for  the  defendants,  and  to  be  carried  from  there 
to  Twenty-eighth  Street  on  the  East  River  in  the  city  of  New  York ; 
the  defendants  paying  the  fi'eight  for  the  same.     The  coal  was  shij)ped 


SECT.    IV.]  RODGERS    V.    PHILLIPS.  317 

by  the  plaintiffs  on  board  the  coal  l)()at   T.  K.  Smith  at  Richmond,  for 
the   defendants,  on   Saturday  the   2Gth   day  of  June,  1858 ;  and  a  bill 
of  lading  taken  from  the  nuister,  by  which  the  coal  was  to  be  delivered 
at  Twenty-eighth  Street,  on  the  East  River  side  of  the  city  of  New 
York,  to  the  defendants  iipon  the  payment  of  the  freight  by  them. 
Puring  the  afternoon  of  the  day  when  the  coal  was  laden  upon  the 
boat,  she  commenced  leaking,  and  finally  sank  on  the  morning  of  the 
following  day.    The  boat  and  cargo  remained  in  the  water  where  they 
sank  until   they  were   finally   removed  by  the  public  authorities  as 
obstructions  to  navigation.     On  Monday  the  28th  of  June,  1858,  the 
plaintiffs,  who  kept  their  office  at  the  city  of  New  York,  received  the 
bill  of  lading  by  mail;    and  on  the  same  day  they  sent  it  with  an 
invoice  of  the  coal  to  the  defendants'  office.     The  invoice  consisted 
of   an   unsubscribed   bill   of  the   coal.      On   Tuesday   the   29th   the 
defendant   Oakley,  together   wdth   Mr.  Harriott  the  secretary  of  the 
Brevoort  Insurance    Company,   called   at    the    plaintifts'   office,   and 
inquired  of  Mr.  Rodgers,  one  of  the  plaintiffs,  concerning  the  condition 
of  the  boat ;  how  she  had  sunk,  the  cost  of  raising  her,  and  what  he 
could  do  it  for.     He  answered  that  he  could  give  no  information  in 
regard  to  the  matter.     Another  witness,  Hubbard,  who  was  present  at 
the  same  interview,  stated  that  he  understood  from  the  conversation 
that  Harriott  was  to  go  to  Philadelphia  to  see  about  raising  the  vessel. 
The  next  day  but  one  succeeding  this  interview,  w^hich  was  the  1st  day 
of  July,  the  defendants  sent  back  the  bill  of  lading  to  the  plaintiffs ; 
and  they  returned  it  to  the  defendants  the  same  day  in  a  letter,  saying 
that  they   had    nothing   to   do   with   it.      Upon   this    evidence   the 
defendants  moved  for  a  nonsuit  on  the  ground  that  no  valid  sale  was 
established  under  Ihe  Statute  of  Frauds.    The  motion  was  denied,  an<l 
the  defendants  excepted.     In  addition  to  proving  the  condition  of  the 
boat  at  the  time  the  coal  was  placed  on  board  of  her,  and  the  manner 
of  her  sinking,  the  defendants  proved  by  the  defendant  Oakley  that  he 
was  a  director  in  the  Brevoort  Insurance  Company,  and  that  on  the 
receipt  of  the  bill  of  lading  he  went  to  the  office  of  that  company  and 
tried  to  effect  an  insurance  on  the  coal.     The  insurance  was  refused 
on  the  ground  that  the  boat  was  rated  on  the  company's  books  as 
twelve  years  old  and  notoriously  rotten.     After  hearing  of  the  sinking 
of  the   boat,   Harriott,  who    went   to   the   plaintiffs'    office  with   the 
defendant  Oakley  on  Tuesday,  w^t  to  Philadelphia  and  attended  to 
the  matter.     What  he  did  beyond  inquiring  into  the  condition  of  the 
boat  was  not  made  to  appear.    The  proofs  were  thereupon  closed ;  and 
the  court  refused  to  allow  the  defendants'  counsel  to  go  to  the  jury  on 
the  questions  of  fact  involved  in  the  case,  on  the  ground  that  the 
defendants   had   tailed  to  make   out  any  defence  to  the  action,  and 
directed  a  verdict  for  the  plaintiffs.     The  defendants  excepted  to  the 
decision   and    direction    of   the   court.      Upon   the    hearing   of   the 


818  RODGERS   V.    PHILLIPS.  [CHAP.   I. 

exceptions  at  the  general  terra,  judgment  was  directed  for  the  plain- 
tiffs; and  when  that  was  entered  the  defendants  appealed  to  this 
court. 

William  H.  Scott,  for  the  appellants,  insisted  that  while  at  common 
law  a  delivery  to  the  proper  canier  is  constructively  a  delivery  to  the 
vendee,  to  constitute  a  valid  sale  under  the  Statute  of  Frauds  in  the 
absence  of  a  writing  there  must  be  not  only  a  delivery  to  the  vendee, 
but  an  unconditional  acceptance  by  him ;  and  he  cited  on  this  point 
Addison  on  Contr,  (2d  Am.  ed.)  244,  and  cases  there  cited ;  id.  257 ; 
Shindler  v.  Houston,  1  Comst.  269 ;  Story  on  Contr.  §  821 ;  2  Kent, 
p.  545 ;  Stubbs  v.  Lund,  7  Mass.  457  ;  Whitehead  v.  Anderson,  9  M. 
&  W.  534 ;  Van  Casteel  v.  Booker,  2  Exch.  709  ;  Farina  v.  Home, 
16  M.  &  W.  119,  123;  Lord  Campbell,  C.  J.,  in  Hart  v.  Bush,  4  Jur. 
(n.  s.)  633 ;  Maberley  v.  Sheppard,  10  Bing.  99 ;  Lillywhite  v.  Dev- 
ereux,  15  M.  &  W.  285;  Dilke  v.  Andrews,  2  Exch.  290.  The 
reception  merely  of  the  bill  of  lading  is  not  such  acceptance.  Mere- 
dith V.  Meigh,  2  El.  &  Bl.  364 ;  Farina  v.  Home,  siipy-a  ;  Norman  v. 
Phillips,  14  M.  &  W.  277.  Even  at  common  law,  the  delivery  being  on 
board  of  an  utterly  unseaworthy  vessel,  the  plaintiffs  were  responsible 
for  the  neglect.  Jones'  Bailments,  10,  119  ;  2  Ld.  Raym.  909  ;  Stoiy 
on  Bailments,  §  23 ;  Pothier's  Obligations,  Observations  Generales. 

J.  R.  Whiting,  for  the  respondent,  upon  the  point  that  a  delivery  to 
a  carrier  or  master  of  a  vessel,  when  goods  are  to  be  transported  by 
water,  passes  the  property,  cited  People  v.  Haynes,  14  Wend.  562 ; 
Hague  V.  Porter,  3  Hill,  141 ;  Waldron  v.  Romaine,  22  N.  Y.  368 ; 
Wiseman  v.  Vandeputt,  2  Yern.  203 ;  Button  v.  Solomonson,  3  Bos.  & 
Pull.  582  ;  Dawes  v.  Peck,  8  Term  R.  330  ;  Coxe  v.  Harden,  4  East, 
211 ;  King  v.  Meredith,  2  Campb.  639 ;  Godfi-ey  v.  Furzo,  3  P.  Wm's. 
185 ;  Snee  v.  Prescot,  1  Atk.  248 ;  Hart  v.  Satterly,  3  Campb.  528 ; 
Griffith  V.  Ligledew,  6  Serg.  <fe  R.  429 ;  Ludlow  v.  Browne,  1  Johns.  R. 
15  ;  2  Kent,  449.  That  a  bill  of  lading  accepted  passes  the  title  he 
cited  Griffith  v.  Ingledew,  supra. 

Daniels,  J.  A  large  portion  of  the  evidence  contained  in  the  case 
was  given  upon  the  trial  for  the  purpose  of  shewing  that  the  ])laintiffs 
had  negligently  misconducted  themselves  in  lading  the  coal  upon  an 
unsafe  and  unseaworthy  vessel ;  and  that  in  consequence  of  that  mis- 
conduct the  coal  had  been  lost.  This  defence  was  properly  rejected 
by  the  court  for  the  reason  that  it  had  not  been  set  forth  in  the 
answer. 

The  disposition  which  should  now  be  made  of  the  controversy  will 
therefore  depend  entirely  upon  the  sufficiency  of  the  evidence  given 
upon  the  trial  to  estabhsh  the  fact  that  the  coal  had  been  delivered  to 
and  accepted  by  the  defendants.  The  contract  for  the  sale  of  it  was 
within  the  Statute  of  Frauds ;  and  on  that  account,  as  it  was  not  in 
writing  and  nothing  had  been  paid  upon  it,  by  the  dii-ect  terms  of  that 


SECT.    IV.]  RODGERS   V.    PHILLIPS.  319 

statute  it  was  void.  Although  the  phiintiffs  did  peiforin  all  that  would 
have  been  requisite  to  transfer  the  title  to  the  coal  to  the  purchasers 
under  the  well-established  rule  of  the  common  law,  it  does  not  follow 
that  what  they  did  would  be  attended  with  the  same  result  under  the 
rule  prescribed  by  the  statute.  Where  a  valid  and  siibsisting  contract 
for  the  sale  of  personal  ])roperty  niay  be  shewn  to  exist,  and  by  its 
terms  the  property  is  to  be  shipped  by  the  vendor  to  the  vendee,  then 
a  delivery  of  it  to  a  responsible  carrier  for  the  vendee,  to  be  carried 
and  delivered  to  him,  will  ordinarily  transfer  the  title  to  the  vendee 
and  place  the  property  at  his  risk.  But  this  rule  requires  that  the 
contract  between  the  parties  shall  be  at  the  time  legal,  valid,  and  sub- 
sisting. It  does  not  include  cases  like  the  present  one,  where  on 
account  of  a  failure  to  comply  with  the  positive  rule  prescribed  by  the 
statute  the  contract  is  void,  and  must  remain  so  until  some  act  has 
been  performed  that  Avill  have  the  effect  of  giving  it  legal  A'alidity. 
In  cases  like  the  present  one  it  is  the  statute,  and  not  the  common 
law,  that  has  provided  the  mode  by  which  the  previously  void  agree- 
ment could  be  rendered  legal  and  binding  upon  the  j)arties.  And  that 
mode  must  be  pursued ;  otherwise  the  agreement  must  remain  Avithout 
any  binding  force  uj^on  either  of  the  parties.  Until  that  may  be  done 
the  contract  must  remain  entirely  optional  on  the  part  of  each  of 
the  i^arties.  Even  if  the  vendors  elected  to  perform  it,  and  deliver  the 
property  precisely  as  they  had  agreed  to,  it  was  still  oi)tional  with  the 
vendees  whether  they  would  receive  it  or  not.  And  even  if  the  former 
went  so  far  as  to  actually  deliver  it,  the  vendees  still  had  theii-  election 
to  either  receive  or  refuse  it. 

This  resulted  from  the  unequivocal  terms  made  use  of  in  the  statute. 
They  required  that  the  vendees,  under  such  a  contract  as  was  shewn 
upon  the  trial  of  this  cause,  should  not  only  receive,  but  in  addition  to 
that  accept  part  of  the  property  contracted  to  be  sold  to  them,  in 
order  to  render  the  contract  binding  upon  them  in  law.  Where  the 
contract  or  a  note  or  memorandum  of  it  has  not  been  reduced  to  writ- 
ing and  subscribed  by  the  parties  to  be  charged  by  it,  and  no  part  of 
the"  purchase  price  has  been  paid,  then  the  statute  declares  it  to  be  void 
where  the  price  amounts  to  the  sum  of  §50  or  upwards,  unless  "  the 
buyer  shall  accept  and  receive  part  of  such  goods."  3  Kev.  Sts.  (5th  ed.) 
222,  subd.  2  of  §  3.  This  statute  is  in  substance  the  same  as  the  pre- 
viously existing  English  statute,  and  they  have  both  been  regarded  as 
identical  in  the  change  they  have  produced  in  the  common  law  rule. 

By  the  construction  they  have  received,  and  which  their  language 
manifestly  required,  a  mere  delivery  of  the  property  contracted  to  be 
sold  by  the  terms  of  the  void  contract  has  been  held  to  be  insuliicient 
to  vest  the  title  to  it  in  or  j^lace  it  at  the  risk  of  the  vendee.  But 
beyond  that  it  became  necessary,  under  the  rule  adopted  by  the  statute, 
that  some  part  of  the  property  should  not  only  be  delivered  and 


320  RODGERS    V.    PHILLIPS.  [CHAP.    I. 

received  by  the  vendee,  but  that  it  should  also  be  accepted  by  him. 
This  acceptance  of  it  involved  something  more  than  the  act  of  the 
vendor  in  the  delivery.  It  required  that  the  vendee  should  also  act, 
and  that  his  act  should  be  of  sjich  a  nature  as  to  indicate  that  he 
received  and  accejited  the  goods  delivered  as  his  property.  He  must 
receive  and  retain  the  articles  delivered,  intending  thereby  to  assume 
the  title  to  them,  to  constitute  the  acceptance  mentioned  in  the  statute ; 
when  that  has  been  done  then  for  the  first  time  the  void  contract 
becomes  valid  and  obligatory  ujion  the  parties  to  it. 

This  rule  of  construction  was  adopted  at  an  early  day  by  the  English 
courts.  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680,  5  E.  C.  L.  419 ; 
Carter  v.  Toussaint,  5  Barn.  &  Aid.  855  ;  Baldey  v.  Parker,  2  Barn.  & 
C.  37,  9  E.  C.  L.  16,  17.  And  since  then  it  has  been  approved  and 
applied  by  this  court  to  the  statute  existing  upon  this  subject  in  this 
State.  Shindler  v.  Houston,  1  Comst.  261.  In  the  decision  of  that 
case  Judge  Gardiner  stated  the  English  rule  as  requiring  that  "  there 
must  be  a  delivery  by  the  vendor,  Avith  an  intention  of  vesting  the 
right  of  possession  in  the  vendee,  and  there  must  be  an  actual  accept- 
ance by  the  latter  with  the  intent  of  taking  possession  as  owner."  He 
then  adds :  "  This  I  apprehend  is  the  correct  rule,  and  it  is  obvious  that 
it  can  only  be  satisfied  by  something  done  subsequent  to  the  sale 
unequivocally  indicating  the  mutual  intentions  of  the  parties."  Id. 
265.  Judge  Wright  said  "  that  the  acts  of  the  parties  must  be  of 
such  a  character  as  to  unequivocally  j^lace  the  property  within  the 
power  and  under  the  exclusive  dominion  of  the  buyer."  Where  the 
acts  of  the  buyer  are  equivocal,  and  do  not  lead  irresistibly  to  the  con- 
clusion that  there  has  been  a  transfer  and  acceptance  of  the  possession, 
the  cases  qualify  the  inference  to  be  drawn  from  them,  and  hold  the 
contract  to  be  within  the  statute.  Id.  270,  271.  And  to  this  efiect 
is  the  case  of  Denny  v.  Williams,  5  Allen,  1.  This  it  will  be  pei*- 
ceived  is  very  decided  language,  but  no  more  so  certainly  than  Avas 
used  in  the  enactment  of  the  statute  to  which  it  was  applied.  And  it 
was  afterwards  followed  and  again  applied  in  deciding  the  case  of 
Brabin  v.  Hyde,  32  N.  Y.  519. 

The  question  in  this  case  therefore  is,  whether  such  an  acceptance  of 
the  coal  by  the  defendants  was  shewn  as  placed  it  at  their  risk  at  the 
time  when  it  was  lost  by  the  sinking  of  the  vessel  it  was  laden  upon. 
And,  for  the  purjjose  of  considering  and  deciding  it,  this  case  must  be 
distinguished  from  those  where  the  property  contracted  to  be  sold  was 
delivered  to  a  particular  carrier  designated  and  selected  by  the  ven- 
dee for  the  purpose  of  receiving  and  accepting  it.  For  in  those  cases 
the  carrier  by  the  act  of  the  vendee  became  his  agent,  and  bound  him 
by  the  receijDt  and  accej^tance  of  the  property.  Dawes  v.  Peck,  8 
Term,  330 ;  Waldron  v.  Romaine,  22  N.  Y.  368 ;  Bushel  v.  Wheeler, 
15  Ad.  &  Ellis,  (n.  s.)  442.     This  case  differs  from  those  in  the  circum- 


SECT.    IV.]  RODGERS   V.    PHILLIPS.  321 

• 

stance  that  no  such  desiij^iiation  or  selection  was  made  by  the  defend- 
ants. The  carriei"  to  whom  the  property  was  deUvered  to  be  carried  to 
the  defendants  was  selected  by  the  plaintiffs.  The  defendants  in  no 
manner  authorized  or  partici})ated  in  it  beyond  the  void  authority  con- 
ferred by  the  terms  of  their  void  contract.  Being  void,  as  it  was,  the 
plaintiffs  could  not  avail  themselves  of  its  terms  for  the  purpose  of 
binding  or  concluding  the  defendants  by  what  they  did  under  it. 
Whatever  they  did  towards  the  performance  of  the  contract  they  did 
for  themselves,  and  at  their  own  risk,  until  the  defendants  elected  to 
change  the  risk,  and  did  change  it  by  the  acceptance  of  the  property 
mentioned  in  the  statute ;  what  the  evidence  showed  was  a  selection  of 
the  carrier  by  the  plaintiffs,  and  a  delivery  of  the  coal  to  him,  not  an 
acceptance  of  it  by  the  defendants.  That  acceptance  required  some 
act  on  the  part  of  the  vendees  to  constitute  it,  performed  after  the  coal 
had  been  separated  from  the  mass,  and  placed  in  such  a  condition  as 
rendered  that  particular  quantity  capable  of  being  accepted  by  the 
defendants.  The  evidence  not  only  failed  to  show  the  i)erformancc  of 
any  net  of  accejDtance  on  the  part  of  the  defendants,  but  beyond  that 
it  appeared  that  they  did  not  hear  of  its  shipment  until  the  vessel  it 
was  laden  upon  had  sunk  to  the  bottom  of  the  Schuylkill.  There  was 
nothing  therefore  in  the  case  from  which  the  defendants  could  be 
deemed  to  have  accepted  the  coal  at  that  time.  It  consequently  con- 
tinued to  be  the  plaintiffs'  property,  remaining  at  their  risk ;  and  it  was 
their  loss  when  the  vessel  sunk  after  it  had  been  laden  on  board  of  her. 
And  if  the  carrier  became  liable  for  the  loss,  his  liability  was  to  the 
plaintiffs,  not  to  the  defendants.  That  a  mere  delivery  of  propei-ty  to 
a  carrier  selected  to  receive  and  carry  it  by  the  vendors  will  in  no  legal 
sense  constitute  an  accej)tance  of  it  by  the  vendee,  and  for  that  reason 
exclude  the  case  from  the  operation  of  the  statute,  has  been  distinctly 
held  in  several  adjudged  and  well-considered  decisions.  This  point 
was  directly  presented  in  the  case  of  Maxwell  v.  Brown,  39  Maine,  98  ; 
and  after  an  examination  and  reference  to  Enghsh  authorities  the  court 
held  that  the  delivery  to  the  carrier  was  insufficient  to  shew  an  accept- 
ance by  the  vendee.  The  same  point  arose,  under  slightly  different 
circumstances,  in  the  case  of  Frostburg  Mining  Company  v.  New 
England  Glass  Co.,  9  Cush.  115 ;  and  it  was  disj^osed  of  in  the  same 
way.  And  a  deUvery  to  a  carrier  selected  by  the  vendor  for  the  trans- 
portation of  the  property,  where  that  was  done  in  confonnity  to  the 
terms  of  the  void  contract,  was  held  to  be  in  no  sense  an  acceptance  by 
the  vendee,  in  the  cases  of  Hanson  v.  Armitage,  7  Eng.  C.  L.  191 ; 
Acebal  v.  Levy,  25  id.  170 ;  Meredith  v.  Meigh,  75  id.  36.3 ;  Coats  v. 
Chaplin,  43  id.  831 ;  Norman  v.  Phillips,  14  Mees.  &  Wels.  278  ;  Farina 
V.  Home,  16  id.  119;  Coombs  v.  Bristol,  «fec..  Railway  Co.,  3  Hurl.  & 
Nor.  510  ;  Hart  v.  Bush,  Ellis,  B.  &  Ellis,  494.  And  the  cases  of  Howe 
V.  Palmer,  5  Eng.  C.  L.  303 ;  Bentall  v.  Bum,  10  id.  138 ;  Hunt  v. 

VOL.    I.  21 


X 


322  RODCxERS   V.    PHILLIPS.  [CHAP.   I. 

Heclit,  20  Eng.  Law  and  Eq.  524 ;  Holmes  v.  Haskins,  28  id.  564 ;  and 
Castle  V.  Sworder,  5  Hurl.  &  Nor.  281,  — though  differing  in  their  cir- 
cumstances, are  in  substance  to  the  same  effect. 

Up  to  the  time  when  the  coal  was  lost  by  the  sinking  of  the  vessel 
having  it  on  board,  no  act  was  performed  by  the  defendants  from  which 
it  could  be  even  colorably  claimed  that  they  had  accepted  the  coal  or 
become  investe.d  with  the  title  to  it.  For  it  was  not  until  the  day  after- 
wards that  the  invoice  and  bill  of  lading  were  delivered  to  them ;  and 
then  the  rights  of  the  parties  had  become  fixed  by  the  loss  of  the 
property.  The  loss  was  then  that  of  the  plaintiffs,  and  nothing  after- 
wards trans^iired  warranting  the  conclusion  that  the  defendants  intended 
to  shift  it  and  impose  it  ujDon  themselves. 

Assuming,  as  it  may  properly  be  done,  that  the  acceptance  of  the 
bill  of  lading  by  the  defendants  under  ordinary  circumstances  would 
have  been  equivalent  to  the  acceptance  of  the  property  mentioned  in 
it,  yet  that  could  not  be  the  effect  of  it  where,  as  in  this  case,  the  prop- 
erty had  been  previously  lost.  Certainly  not,  unless  the  acceptance 
was  made  with  knowledge  of  the  circumstances  affecting  the  propriety 
of  it  existing  at  the  time  it  occurred. 

But  even  if  it  could  have  produced  that  result,   something  more 
would  have  to  be  shewn  for  the  purpose  of  establishing  the  acceptance 
than  was  done  upon  the  trial  of  this  action.     What  transpired  when 
the  bill  of  lading  was  left  at  the  defendants'  office  was  not  made  to 
appear.     All  that  was  shewn  upon  the  subject  of  an  acceptance  of  it 
was  that  one  of  the  defendants  after  its  receij^t  applied  for  an  insur- 
ance iipon  the  coal,  and  failed  to  procure  it  on  account  of  the  unsea- 
wortliy  character  of  the  vessel  uj^on  which  the  plaintiff  had  placed  it. 
This  was  clearly  insufficient  for  that  purpose,  because  it  did  not  shew 
that  the  defendants  had  dealt  with  the  propei'ty  as  their  own,  but 
merely  that  they  had  attempted  to  do  so  and  failed.     What  they  did 
in  this  respect  was  done  before  they  had  received  any  intelligence  of 
the  misfortune  to  the  property.     And  even  if  prior  to  that  time  they 
had  determined  to  accept  the  shipment  by  accepting  the  bill  of  lading 
upon  the  supposition  and  belief  that  the  property  was  then  afloat,  they 
became  at  liberty  to  rescind  their  deteiTuination  and  refuse  to  receive 
it  as  soon  as  they  discovered  that  it  had  been  foraied  under  a  mistake 
of  a  material  fact  affecting  it.     When  that  fact  was  discovered  an 
interview  took  place  between  one  of  the  defendants  and  one  of  the 
plaintiffs,  but  nothing  was  settled  by  what  then  occurred.     After  that 
Mr.  Harriott  was  sent  to  Philadelphia  by  the  defendants,  and  he  testi- 
fied that  he  attended  to  the  matter.     But  what  he  did  beyond  inquir- 
ing into  the  condition  of  the  boat  was  neither  stated  by  himself  nor  by 
any  other  witness.     Neither  of  these  circumstances,  nor  all  of  them 
combined,  so  far  tended  to  prove  an  accej^tance  of  the  property  as  to 
justify  the  court  in  leaving  that  fact  to  the  consideration  and  decision 


SECT.    IV.]  RODGERS   V.   PHILLIPS.  323 

of  the  juiy,  When  the  additional  circumstance  is  borne  in  mind  that 
on  Thursday  of  the  same  week  the  defendants  sent  back  tlie  bill  of 
lading  to  the  plaintiifs,  it  will  be  perceived  that  there  Avas  absolutely 
nothing  from  which  an  acceptance  of  the  property  shipped  could  be 
even  plausibly  maintained. 

At  the  time  the  bill  of  lading  was  delivered  to  them  they  had  a  rea- 
sonable time,  after  ascertaining  the  circumstances,  in  which  to  determine 
whether  they  would  accept  or  reject  it,  the  same  as  they  would  have 
had  upon  an  actual  delivery  of  the  property  itself,  for  which  the  bill 
was  merely  a  substitute.  "Within  that  time  they  rejected  and  returned 
it  to  the  plaintiffs,  wliich  plainly  left  the  transaction  invalid  as  a  sale 
under  the  direct  proliibition  of  the  statute.  In  this  respect  the  case 
had  no  more  foundation  for  its  support  than  Norman  v.  Phillips,  Farina 
V.  Home,  and  Coats  v.  Chaplin,  siqwa,  and  Bill  v.  Banient,  9  Mees.  & 
W.  36,  had,  in  which  it  was  held  that  no  acceptance  of  the  property 
by  the  buyer  could  be  inferred. 

The  court  at  the  trial  erred  in  refusing  to  nonsuit  the  jilaiutiffs  and 
in  directing  a  verdict  against  the  defendants.  The  judgment  should 
be  reversed  and  a  new  trial  ordered. 

WooDKUFF,  J.  The  question  in  this  case,  the  decision  of  which  is 
conclusive  between  the  pai'ties,  is  whether  a  delivery  of  goods  to  a 
general  carrier,  in  pursuance  of  the  order  of  a  proposed  purchaser,  to 
be  transported  to  him,  is  such  a  consummation  of  the  contract  of  sale 
as  dispenses  with  a  writing  and  takes  the  transaction  out  of  the  ojiera- 
tion  of  the  Statute  of  Frauds. 

The  defendants  in  New  York  gave  verbal  orders  for  175  to  200  tons 
of  coal,  and  directed  that  it  be  delivered  "  on  board  at  Richmond  (near 
Philadelphia)  in  the  customary  manner,"  no  particular  boat  or  barge 
being  designated. 

The  plaintiffs  shipped  188  tons,  lading  it  upon  the  coal  barge  I.  K. 
Smith,  received  a  bill  of  lading  therefor,  whereby  the  coal  was  made 
deliverable  to  the  defendants,  they  paying  freight,  and  forwarded  the 
bill  -of  lading  to  the  defendants.  Within  a  few  hours  after  the  coal 
was  placed  on  board,  and  before  leaving  on  her  voyage,  the  barge 
sprung  a  leak  and  was  sunk  Avith  the  coal  on  board. 

The  defendants  received  the  bill  of  lading  on  Monday,  June  28, 
1858 :  on  receiving  information  of  the  sinking  of  the  barge  the  defend- 
ants sent  an  agent  to  Richmond  to  learn  the  facts,  and  on  Thursday 
returned  the  bill  of  lading,  denying  their  liability  to  pay  for  the  coal. 

In  accordance  with  the  general  rule,  that  where  goods  are  purchased 
to  be  shipped  or  sent  to  the  buyer  a  delivery  to  the  carrier,  whether 
he  be  a  general  carrier  or  one  specially  designated  by  the  buyer,  con- 
stitutes performance  by  the  seller,  is  a  sufficient  delivery,  vests  the 
title  to  the  goods  in  the  buyer  (subject  to  the  right  of  stoppage  in 
transitu)^  and  places  the  goods  at  his  risk,  the  Supreme  Court  held  the 
plaintiffs  entitled  to  recover. 


324  RODGERS  i;. .  PHILLIPS.  [CHAP.   I. 

This  general  rule  is  unquestionable ;  and  the  numerous  cases  cited 
by  the  counsel  for  the  resj^ondents,  on  the  argument  of  this  appeal,  are 
full  and  conclusive.  It  is  quite  sufficient  to  mention  Ludlow  v.  Browne 
et  al.,  1  Johns.  R.  15 ;  The  People  v.  Haynes,  14  Wend.  562;  Hague 
et  al  V.  Porter,  3  Hill,  141 ;  Waldron  v.  Romaine,  22  N.  Y.  368 ;  Dawes 
V.  Peck,  8  T.  R.  330 ;  Button  v.  Solomonson,  3  Bos.  &  Pull.  584 ;  and 
cases  incidentally  considered  in  Harris  v.  Hart,  6  Duer,  606 ;  and  Hol- 
brook  et  al.  v.  Vose  et  al,  6  Bosw.  104. 

But  the  decision  below  overlooks  the  fact  that  the  Statute  of  Frauds 
requires  the  acceptance  and  receipt  of  the  goods  as  well  as  the  deliv- 
ery ;  and  without  these  there  is  no  binding  contract  of  sale. 

In  the  cases  referred  to  and  in  the  text  books,  where  the  question  is 
what  constitutes  perfonnance  by  the  vendor  or  delivery  so  as  to  vest 
title  and  place  the  goods  at  the  risk  of  the  buyer,  an  existing  binding 
agreement  or  purchase  is  assumed.  Here  the  inquiry  is,  whether  there 
is  a  binding  contract.  A  parol  agreement  of  purchase  the  statute 
declares  void  "  unless  the  buyer  shall  accept  and  receive  part  of  such 
goods,"  &c.     2  Rev.  Sts.  p.  135,  §  3,  subd.  2. 

The  rule  on  this  subject,  stated  by  Story  in  his  treatise  ©n  Sales  as 
established  by  the  authorities,  is  this :  "  The  meaning  to  be  attached 
to  the  terms  '  accept  and  receive '  is  that  the  purchaser  must  finally 
appropriate  to  himself  the  whole  or  a  part  of  the  goods.  To  create 
such  an  appi'opriation  as  that  contemplated  in  the  statute,  there  must 
be  not  only  such  an  actual  delivery  by  the  seller  as  to  destroy  all  fiir- 
ther  claim  of  lien  or  of  stoppage  i7i  transitu  on  his  part,  but  also  such 
an  actual  acceptance  by  the  buyer  as  to  disable  him  fi-om  objecting  to 
the  quantity  or  quality  of  the  goods.  .  .  .  The  delivery  must  be  a 
complete  and  final  delivery,  and  the  acceptance  an  ultimate  acceptance, 
so  as  to  reduce  the  goods  to  the  actual  possession  of  the  vendee.  It 
follows  therefore  that  no  receipt  of  goods  by  a  carrier  or  middleman 
on  their  way  to  the  buyer  is  a  sufficient  acceptance,  unless  such  carrier 
or  middleman  be  the  general  agent  of  the  vendee  having  authority 
finally  to  accept  them."  '  This  broad  and  explicit  exposition  of  the 
acceptance  necessary  to  give  validity  to  the  contract,  and  stand  in  place 
of  a  writing,  is  founded  upon  numerous  English  cases  on  the  construc- 
tion of  the  statute  in  England,  from  which  ours  is  copied.  Baldey  v. 
Parker,  2  Barn.  &  Cres.  44 ;  Phillips  v.  Bistolli,  id.  513 ;  Smith  v.  Sur- 
man,  9  Barn.  &  Cres.  561 ;  Carter  v.  Toussaint,  5  Barn.  &  Aid,  858 ; 
Kent  V.  Huskinson,  3  B.  &  P.  233 ;  Hanson  v.  Armitage,  5  Bam.  & 
Aid.  557 ;  Astey  v.  Emery,  4  Maule  &  Selw.  264 ;  Howe  v.  Palmer,  3 
B.  &  A.  321 ;  Johnson  v.  Dodgson,  2  Mees.  &  Wels.  656. 

Obviously  this  rule  is  decisive  of  the  question  in  this  case.  Indeed 
it  is  wholly  unnecessary  to  go  to  so  great  length  for  the  purposes  of 
this  case. 

Addison,  in  his  treatise  on  Contracts,  though  not  in  terms,  yet  in 


SECT.    IV.]  RODGERS  -V.    PHILLIPS.  325 

substance,  gives  the  like  exposition  of  the  force  and  effect  of  these  terms 
of  the  statute,  superadded  to  the  force  of  mere  delivery  Avhere  there 
is  already  a  valid  contract  of  sale.     Add.  on  Cont.  pp.  243,  244,  245. 

It  has  sometimes  been  argued  that  delivery  to  a  carrier  designated 
by  the  buyer  will  suffice  to  satisfy  the  statute,  although  delivery  to  a 
general  carrier  will  not;  but  this  distinction  cannot  be  sustained  where 
the  carrier  has  no  other  authority  than  to  transport  the  goods.  In 
Acebal  v.  Levy,  10  Bing.  376,  the  delivery  was  on  board  of  a  ship  char- 
tered by  the  buyer,  and  yet  it  was  not  held  to  constitute  an  acceptance 
within  the  statute ;  and  see  also  Meredith  v.  Meigh  et  cd.,  2  Ellis  &  B. 

364. 

In  Shindlcr  v.  Houston,  1  Comst.  269,  Wright,  J.,  reviews  the  cases 
on  the  construction  of  these  terms  in  the  statute  and  says :  "  The  best 
considered  cases  hold  that  there  must  be  a  vesting  of  the  possession  of 
the  goods  in  the  vendee  as  absolute  owner,  discharged  of  all  lien  for 
the  price  on  the  part  of  the  vendor,  and  an  ultimate  acceptance  and 
receiving  of  the  property  by  the  vendee,  so  unequivocal  that  he  shall 
have  precluded  himself  from  taking  any  objection  to  the  quantum  ov 
quality  of  the  goods  sold."  Chitty  on  Contracts,  390,  and  cases  cited ; 
Hilliard  on  Sales,  135,  and  cases  cited. 

The  proposition  thus  stated  is  in  unquestionable  confoi-mity  to  the 
English  cases  above  referred  to ;  but  the  Court  of  King's  Bench  in  Eng- 
land in  Morton  v.  Tibbett  in  1850,  15  Ad.  &  El.  (n.  s.)  428,  while  they 
recognize  the  necessity  of  an  acceptance  to  satisfy  the  statute,  deny 
that  an  acceptance  which  will  satisfy  the  statute  necessarily  precludes 
the  rejection  of  the  goods  after  examination  and  denying  the  fact  of 
performance  by  the  vendor. 

Lord  Campbell  reviews  the  previous  cases,  and  while  he  admits  the 
repeated  assertion  of  the  rule  as  above  stated  he  questions  its  sound- 
ness, and  finds  in  other  cases  some  warrant  for  his  qualification  of  the 

rule. 

But  the  rule,  that  there  must  be  something  more  than  such  a  delivery 
as  would  change  the  title  and  place  the  goods  at  the  risk  of  the  buyer 
if  the  contract  was  in  writing,  is  not  questioned.  It  is  sufficient  for  the 
purposes  of  this  case  to  say  that  a  delivery  to  a  general  carrier  not 
designated  by  the  buyer,  for  the  mere  purpose  of  transportation  to  liim, 
does  not  constitute  an  acceptance  of  the  goods  within  the  Statute  of 
Frauds. 

In  Coombs  v.  Bristol  and  Exeter  Railway  Co.,  3  Hurl.  &  Norm.  510, 
in  1858,  the  subject  was  considered  at  length  in  the  English  Court  of 
Exchequer,  and  the  rule  reasserted.  See  also,  on  the  meaning  of  the 
term  "receive,"  Farina  v.  Home,  16  Mees.  &  Wels.  119;  Hart  v.  Bush, 
4  Jur.  (n.  s.)  633 ;  Frostburg  Mining  Co.  v.  New  England  Glass  Co., 
9  Cush.  115. 

The  judgment  is  clearly  erroneous.    The  defendants  never  accepted 


326  WALKER   V.    NUSSEY.  [CHAP.   I. 

nor  received  the  goods  within  the  meaning  of  the  statute,  and  the 
defendants'  motion  for  a  nonsuit  should  have  been  granted. 

The  judgment  must  be  reversed. 

Mason  and  Jaiies,  JJ.,  concurred  in  Woodruff's  opinion. 

Geovee,  J.,  was  for  reversal.  He  was  not  however  prepared  to 
concur  in  the  doctrine  of  Woodruff's  opinion  as  to  the  case  of  a  carrier 
designated  by  the  vendee. 

Hunt,  C.  J.,  concurred  with  Grover,  J.  He  also  was  inclined  to 
think  that  the  fact  of  the  property  being  put  by  the  plaintiffs  on  board 
an  unseaworthy  vessel  was  a  material  circumstance  in  favor  of  the 
defendants. 

LoTT,  J.,  dubitante,  did  not  vote. 

Judgment  reversed  and  new  trial  ordered. 


SECTION  Y. 

"  Give  Something  in  Earnest   to   hind  the  Bargain  or  in  Part  of 

PaymentP  ^ 

WALKER  V.  NUSSEY. 
In  the  Exchequer,  January  18,  1847. 

[Reported  in  16  Meeson  ^  Welshy,  302.] 

Debt  for  goods  sold  and  deUvered,  and  on  an  account  stated.  Plea, — 
1st,  never  indebted;  2d,  a  set-off  for  goods  sold  and  delivered,  and 
on  an  account  stated.     Issue  thereon.    At  the  trial  before  the  under- 

1  "  The  leading  purpose  of  the  statute  obviously  is  to  prohibit  the  enforcing  of  a 
mere  verbal  contract  for  the  sale  of  personal  chattels  of  the  value  of  $50  or  more, 
where  nothing  has  been  done  changing  the  position  of  the  parties  as  to  the  property 
which  is  the  subject  of  the  contract.  It  may  have  been  one  element,  influencing  this 
course  of  legislation,  that  if  no  part  of  the  goods  or  merchandise  stipulated  to  be  sold 
has  in  fact  passed  over  to  the  proposed  vendee,  and  if  no  part  of  the  purchase-money 
has  been  paid,  the  effect  of  holding  the  contract  invalid  in  law  will  be  only  to  leave 
the  parties  really  in  statu  quo.  Or,  if  we  suppose  the  reason  [provision  ?]  for  the  excep- 
tion of  cases  of  a  part  delivery  of  the  goods,  or  a  part  payment  of  the  purchase-money, 
from  the  operation  of  the  Statute  of  Frauds,  to  have  been  adopted  upon  the  hypothesis 
that  here  had  been  more  solemnity  in  making  the  contract  or  more  formal  acts  recog- 
nizing its  existence,  all  these  elements  will  be  found  in  the  case  of  a  payment  of  the 
purchase-money  after  the  time  of  making  the  verbal  agreement,  as  fully  as  when  made 
at  the  time  of  entering  into  it.  In  any  view  we  can  take  of  the  matter  we  perceive  no 
sufficient  reason  for  supposing  that  the  payment,  in  ftie  contemplation  of  the  framers 


SECT,   v.]  WALKER   V.    NUSSEY.  327 

sheriff  of  Yorkshire  it  appeared  tliat,  the  defendant  having  sold  goods 
to  the  phiintift"to  the  amount  of  £4  14^.  11(7.,  the  defendant  on  a  sub- 
sequent occasion  bought  of  him  a  lot  of  leather,  of  two  sorts,  by  sample. 
It  was  then  verbally  agreed  between  them  that  the  £4  14s.  lid.  due  to 
the  defendant  should  go  in  part  payment  by  him  to  the  plaintiff  for 
the  leather.  Next  day  the  plaintiff  sent  in  the  goods  to  the  defendant 
with  this  invoice  :  — 

Halifax,  Oct.  14th,  1846. 
Mr.  William  Nussey 

Bought  of  Thomas  Walker 

Dressed  hide  bellies,  287  at  9c7 £10  155.    3c?. 

Insole,  376  at  6i 10    3       8 

£20  18*.  Ud. 
By  your  account  against  me  .     .     .  .  ....  4  14     11 

The  defendant  returned  the  goods  within  two  days  as  inferior  to 
sample,  and  wrote  to  the  plaintiff  to  pay  him  the  £4  14s.  lid.  The 
plaintiff  refused  to  receive  the  goods  and  brought  this  action,  stating 
in  his  particulars  of  demand  that  the  action  was  brought  to  recover 
the  sum  of  £16  4s.,  as  the  "  balance  of  the  following  account "  (setting 
out  the  above  invoice). 

The  under-sheriff  ruled  that  there  was  nothing  to  shew  that  the 
£4  14s.  lid.  had  been  given  by  the  defendant  in  earnest  or  part  of 
payment  under  29  Car.  2,  c.  3,  §  17,  and  left  nothing  to  the  jury,  ex- 
cept on  the  point  of  acceptance  of  the  goods  by  the  defendant,  direct- 
ing them  to  find  for  him  if  they  thought  he  returned  the  goods  in  a 
reasonable  time  without  taking  to  them.  The  jury  found  a  verdict 
for  the  defendant  on  both  issues. 

Addison  now  moved  for  a  new  trial  on  the  ground  of  misdirection. 
[After  stating  §  17  of  29  Car.  2,  c.  3.]  This  transaction  amounted 
to  an  agreement  that,  on  the  defendant's  purchasing  the  leather, 
the  £4  14s.  lid.  before  then  due  to  him  from  the  j^h'^iutiff  was  to  be  a 
part  of  the  purchase-money  accruing  due  to  him.  That  agreement 
inured  therefore  to  take  this  case  out  of  the  statute  as  jxirt  payment 

of  this  statute,  was  restricted  to  a  payment  made  at  the  precise  period  of  making  the 
verbal  agreement.  It  is  doubtless  true  that,  until  such  payment  of  part  of  tlie  pur- 
chase-money, the  contract  would  be  of  no  validity,  and  it  would  be  entirely  competent 
for  either  party  to  repudiate  it.  Neither  party  would  be  bound  by  its  terms ;  the 
vendee  would  be  under  no  obligation  to  make  a  payment,  and  the  vendor  under  no 
obligation  to  receive  one.  But  when  actually  made  and  accepted  with  the  full  concur- 
rence of  both  parties,  then  the  contract  takes  effect ;  then  a  part  payment  of  the  pur. 
chase-money  has  been  made ;  and  then  the  parties  have  made  a  valid  contract.  This 
would  seem  to  be  a  very  reasonable  construction  of  the  statute  if  it  was  necessary  to 
decide  the  abstract  question  of  the  effect  of  payment  of  a  part  of  the  purchase-money 
after  the  time  of  entering  into  a  verbal  contract."  Per  Dewey,  J.,  Thompson  v.  Alger, 
12  Met.  428,  43G.  —  Ed. 


328  WALKER  V.   NUSSEY.  [CHAP.   I. 

within  §  17.  [Paeke,  B.  When  was  the  plaintiff's  debt'to  the  defendant 
satisfied,  so  as  to  be  the  subject  of  a  jilea  of  pa^Tnent  had  the  defendant 
sued  him  ?  The  leather  was  to  be  delivered  by  the  plaintiff,  and  taken 
by  the  defendant  in  satisfaction  of  the  £4  14s.  lie?,  due  from  the  plain- 
tiff to  the  defendant,  and  the  rest  of  it  was  to  be  paid  for  by  the  defend- 
ant. Was  not  the  contract  prospective,  and  the  plaintiff's  debt  to  the 
defendant  only  eventually  extinguished,  in  case  of  the  defendant's 
acceptance  of  the  leather  subsequently  sent  to  him  by  the  plaintiff?] 
The  under-sheriff  merely  left  the  question  of  acceptance  to  the  jury. 
But  in  Hart  v.  Nash,^  where  the  holder  of  a  bill  agreed  with  the  party 
liable  to  pay  it  that,  till  he  could  pay  it,  he  should  supply  the  holder 
with  hats,  and  that  they  should  be  "paid  on  account,"  the  court 
held  that  the  delivery  and  receipt  of  the  hats  under  that  agreement 
was  "part  payment "  within  the  Statute  of  Limitations,  9  Geo.  4,  c.  14. 
[Aldersok,  B.  There  the  supply  of  hats  by  the  defendant  in  part 
payment  was  subsequent  to  the  agreement,  which  is  very  different. 
The  words  of  §  17  are  not  "  except  the  buyer  shall  have  accepted," 
but  "  except  the  buyer  shall  accept "  part  of  the  goods  so  sold  and 
actually  receive  the  same,  —  that  is,  at  the  time  of  the  bargain  made.] 
It  was  not  necessary  that  the  money  should  have  been  paid  by  the 
plaintiff,  in  order  to  be  repaid  by  the  defendant  in  part  pa}Tnent  for 
his  purchase  ;  for  from  the  moment  of  the  agreement  the  defendant's 
goods  became  part  payment  of  those  agreed  to  be  delivered  to  him  by 
the  plaintiff,  and  the  defendant  had  no  longer  any  cause  of  action 
against  the  jilaintiff.  [Platt,  B.  You  rely  on  part  of  the  contract 
itself  as  being  part  performance  of  it.] 

Pollock,  C.  B.  I  think  no  rule  ought  to  be  granted.  The 
plaintiff  sues  for  goods  sold  and  delivered  by  him  to  the  defendant 
above  £10  in  value ;  and  it  %vas  admitted  that  the  defendant  had  pre- 
viously sold  him  goods  for  £4  14s.  \ld.  On  the  new  deahng  between 
them  the  agreement  was,  that  that  sum  should  be  taken  as  part  pay- 
ment by  the  defendant,  and  that  he  should  only  pay  the  j^laintiff  the 
difference  between  that  sum  and  the  amount  of  the  goods  bought 
from  him.  This  contract  was  verbal;  but  it  is  argued  that  the 
£4  14s.  \ld.  was  a  part  pajnnent  by  the  defendant  so  as  to  take  the 
case  out  of  the  Statute  of  Frauds.  But  I  think  it  was  not.  Here 
there  was  nothing  but  one  contract ;  whereas  the  statvite  requires  a 
contract  and,  if  it  be  not  in  writing,  something  besides.  The  ques- 
tion here  is,  whether  what  took  place  amounted  to  a  giving  of  earnest 
or  in  part'  of  payment  at  the  time  of  the  bargain,  the  goods  bought 
by  the  defendant  not  having  been  then  delivered  to  him  by  the 
plaintiff.  Nothing  turns  on  the  effect  of  their  siibsequent  delivery. 
Had  these  parties  positively  agreed  to  extinguish  the  debt  of  £4  odd, 
and  receive  the  plaintiff's  goods  ^ro  tanto  instead  of  it,  the  law  might 

1  2  C.  M.  &  R.  337,  5  Tyr.  955;  acted  on  in  Hooper  v.  Stephens,  4  Ad.  &  E.  71. 


SECT,    v.]  WALKER   V.   NUSSEY.  329 

have  been  satisfied  without  tlie  ceremony  of  paying  it  to  the  defend- 
ant and  repaying  it  by  him.  But  the  actual  contract  did  not  amount 
to  that,  and  there  lias  been  no  part  payment  within  the  statute. 

Parke,  B.  I  am  of  the  same  opinion,  and  think  the  ruling  at  the 
trial  was  ricrht.  The  facts  seem  to  be  these:  The  plaintiff  owed  the 
defendant  a  sum  of  £4  14s.  lie?.  The  parties  then  verbally  agreed 
that  the  plaintiff  should  sell  to  the  defendant  goods  above  £10  in 
value,  according  to  a  given  sample,  the  plaintiff's  debt  to  go  in  part 
payment,  and  the  residue  to  be  paid  by  the  defendant.  No  evidence 
was  given  of  the  actual  payment  or  discharge  of  the  debt  due  from 
the  plaintiff,  so  that  all  rested  in  the  agreement  merely.  If  Mr.  Addi- 
son could  have  shewn  the  contract  to  have  been  that  the  ])arties  were 
to  be  put  in  the  same  situation  at  that  time  as  if  the  plaintiff's  debt  to 
the  defendant  had  then  been  paid,  or  as  if  it  had  been  paid  to  the  de- 
fendant and  repaid  by  him  to  the  plaintiff  as  earnest,  the  statute  might 
have  been  satisfied  without  any  money  having  passed  in  fact ;  but  the 
agreement  w\as  in  fact  that  the  goods  should  be  delivered  by  the  plain- 
tiff Ijy  way  of  satisfaction  of  the  debt  previously  due  from  him  to  the 
defendant,  and  that  the  defendant  should  pay  for  the  rest.  Then  the 
buyer  did  not  "  give  something  in  earnest  to  bind  the  bargain  or  in  part 
of  payment."  The  "  part  payment "  mentioned  in  the  statute  must  take 
place  either  at  or  subsequent  to  the  time  when  the  bargain  was  made. 
Had  there  been  a  bargain  to  sell  the  leather  at  a  certam  price,  and  sub- 
sequently an  agreement  that  the  sum  due  from  the  plaintiff  Avas  to  be 
wiped  off  from  the  amount  of  that  price,  or  that  the  goods  delivered 
should  be  taken  in  satisfaction  of  the  debt  due  from  the  plaintiff, 
either  might  have  been  an  equivalent  to  part  payment,  as  an  agree- 
ment to  set  off  one  item  against  another  is  equivalent  to  pajment  of 
money.  But  as  the  stipulation  respecting  the  i)laintiff's  debt  was 
merely  a  portion  of  the  contemporaneous  contract,  it  Avas  not  a  giving 
something  to  the  plaintiff  by  way  of  earnest  or  in  part  of  pajanent,  then 
or  subsequently. 

Alderson,  B.  The  17th  section  of  the  Statute  of  Frauds  implies 
that,  to  bind  a  buyer  of  goods  of  £10  value  without  Avriting,  he  must 
have  done  two  things :  first,  made  a  contract ;  and,  next,  he  must  have 
given  something  as  earnest  or  in  part  payment  or  discharge  of  his  lia- 
biUty.  But  where  one  of  the  terms  of  an  oral  bargain  is  for  the  seller 
to  take  something  in  part  payment,  that  term  cannot  alone  be  equiva- 
lent to  actual  i)art  payment.  In  this  case  the  part  payment,  or  what- 
ever else  the  bargain  may  amount  to,  is  part  of  that  bargain  itself,  and 
cannot  be  wrested  into  proof  of  an  actual  payment  without  repealing 
the  statute,  and  suffering  a  verbal  contract  for  the  sale  of  goods  of  £10 
value  to  have  effect  without  the  safeguards  provided  by  law  against  fraud 
in  such  cases. 

Platt,  B.     In  this  case,  as  no  note  in  Avriting  was  signed  by  the 


330  ARTCHEE   V.    ZEH.  [CHAP.    I. 

parties,  it  is  clear  from  §  17  that  something  was  to  be  done  by  way 
of  ratifying  the  bargain  in  addition  to  it,  and  at  the  time  of  its  being 
made.  If  on  making  the  bargain  the  defendant  resigned  the  debt 
previously  due  to  him  from  the  plaintiff,  or  discharged  the  plaintiff's 
liability  to  that  amount,  that  would  not  be  giving  earnest  at  the  time 
of  the  bargain  made,  or  in  part  of  pajTiient  of  the  whole  sum  then  due 
fi'om  the  defendant.  As  to  any  discharge  of  the  plaintiff  from  liabil- 
ity to  the  defendant  at  the  time  of  making  the  second  bargain  be- 
tween them,  no  receijit  for  the  plaintiff's  debt  was  given  by  the 
defendant  or  any  other  thing  done  by  him,  so  that  every  thing  rested 
in  mere  verbal  contract,  and  nothing  in  the  evidence  makes  it  binding 
on  the  defendant.  Hide  refused. 


ARTCHER  V.   ZEH. 
Supreme  Court  of  New  York,  May  Term,  1843. 

[Rejyorted  in  5  Hill,  200.] 

Eeroe  to  the  Mayor's  Court  of  the  city  of  Albany,  where  Zeh  sued 
Artcher  in  assumpsit  for  money  had  and  received.  The  facts  upon 
which  the  plaintiff  relied  were  i:)roved  by  Angus  McDuffe,  and  were 
substantially  as  follows:  Artcher  agreed  to  sell  certain  land  to 
McDuffe,  but  in  consequence  of  the  latter's  inability  to  pay  the 
purchase-money  it  was  agreed  between  them  that,  if  McDuffe  would 
find  another  purchaser,  Artcher  would  convey  to  him  and  account  to 
McDuffe  for  whatever  the  land  brought  over  11,403.19.  In  j^ursuance 
of  this  arrangement  Artcher  conveyed  to  Wright  and  Wells  on  the 
30th  of  October,  1839,  for  the  sum  of  81,640.87,  taking  their  mortgage 
for  the  amount  payable  in  two  equal  instalments  on  the  1st  of  June 
and  1st  of  December,  1840.  Zeh  held  a  note  against  McDuffe  for 
more  than  the  difference  between  $1,403.19  and  the  sum  for  which  the 
land  sold,  and  the  latter  agreed  to  transfer  his  interest  in  such  differ- 
ence to  Zeh,  who  remarked  that  if  Artcher  would  assent  to  the 
transfer  he  (Zeh)  would  credit  or  indorse  the  amount  on  the  note. 
McDuffe  accordingly  called  on  Artcher  and  obtained  from  him  a 
l^romise  to  pay  over  the  sum  claimed  by  the  former  when  the  mort- 
gage should  be  paid.  This  was  immediately  after  the  mortgage  was 
given.  The  mortgage  was  paid  to  Artcher  about  the  time  it  fell  due  ; 
but  he  refused  to  fulfil  his  engagement  by  paying  any  part  of  the 
money  to  Zeh,  who  thereupon  commenced  this  action  in  the  court 
below.  At  the  close  of  McDuffe's  examination  he  was  objected  to  by 
the  defendant's  counsel  as  an  incompetent  witness  for  the  plaintiff,  and 


SECT,    v.]  ARTCHER   V.    ZEH.  331 

a  motion  was  thereupon  made  to  have  liis  testimony  stricken  out  of 
the  case.  The  motion  was  denied,  and  the  defendant's  counsel 
excepted.  It  was  not  she^Ti  that  any  of  the  transactions  or  agree- 
ments testified  to  by  McDuffe,  except  the  deed  and  mortgage,  were 
reduced  to  writing ;  nor  did  it  appear  that  Zeh  had  actually  credited 
McDuiFe  witli  the  claim  against  Artcher,  indorsed  it  on  the  note,  or 
given  a  receipt  for  it  in  satisfaction  or  in  any  other  form. 

The  defendant's  counsel  moved  for  a  nonsuit  on  the  ground,  1. 
That  inasmuch  as  the  assignment  from  McDuffe  to  Zeh  was  not  in 
writing,  nor  the  note  extinguished  thereby,  the  assignment  was  void 
by  the  Statute  of  Frauds  ;  2.  That  Artcher  was  shown  to  be  a  trustee 
of  McDuffe's  interest  in  the  mortgage  moneys,  that  such  tnist  was 
void  under  the  Revised  Statutes,  and  that  the  agreement  between 
Artcher,  McDuffe,  and  Zeh  was  therefore  also  void ;  and  3.  That 
Artcher's  promise  to  pay  the  money  to  Zeh  was  not  to  be  performed 
within  a  year,  and  was  for  that  reason  void  by  the  Statute  of  Frauds. 
The  court  below  denied  the  motion,  and  the  defendant's  counsel 
excepted.  Verdict  and  judgment  for  the  plaintiff.  The  defendant 
sued  out  a  writ  of  error. 

a.  W.  PecJcham,  for  the  plaintiff  in  error. 

H.  G.  Wheaton,  for  the  defendant  in  error. 

By  the  Coukt,  Cowen,  J.^  .  .  .  The  first  objection  taken  on  the 
motion  for  a  nonsuit  should  have  been  allowed.  By  the  2  Rev.  Sts.  70, 
(2d  ed.)  §  8,  in  order  to  pass  the  interest  in  a  chose  in  action  where  the 
price  exceeds  $50  there  must  be  a  writing,  or  the  evidences  of  the 
debt  or  some  of  them  must  be  delivered,  or  some  part  of  the  i)urchase- 
money  be  paid ;  otherwise  the  transfer  is  void.  It  is  supposed  that 
here  was  something  equivalent  to  part  payment  of  the  money,  because 
the  terms  of  the  agreement  were  such  as  to  extinguish  ^j>/-o  tcmto  the 
debt  due  from  McDufie  to  Zeh;  in  other  words,  that  the  transfer 
was  accepted  as  a  payment,  and  per  se  worked  a  satisfiction. 
McDuffe  agreed  with  Zeh  that  Artcher  should  pay  him,  and  Zeh 
stipulated  that  if  Artcher  would  agree  to  jiay  him  he  would  give 
McDuffe  credit  for  the  sum,  or  would  indorse  it  on  the  note.  But  it 
never  was  credited,  indorsed,  or  receipted  in  any  fonn;  at  least 
nothing  of  the  kind  was  shown.  It  need  not  be  denied  that  a  promise 
to  indorse  or  credit  Artcher's  agi-eement  to  pay,  in  satisfaction  or  pay- 
ment of  so  much  as  the  sum  amounted  to,  would  operate  as  an  extin- 
guishment ;  or,  in  other  words,  that  an  agreement  to  give  an  absolute 
ci-cdit  would  have  that  effect.  But  the  agreement  leaves  it  equal 
whether  the  indorsement  or  credit  was  not  to  be  the  usual  conditional 
one,  to  become  absolute  on  the  assigned  claim  proving  avaihible. 
Such  is  the    legal  construction  of  an  arrangement  to  take  a  claim 

1  Only  so  much  of  the  opinion  is  given  as  relates  to  the  first  ground  of  the  motion 
for  a  nonsuit.  — Ed. 


332  ARTCHER    V.    ZEH.  [CHAP.    I. 

against  a  third  person,  to  be  applied  iij^on  a  precedent  debt ;  and  the 
law  will  not  hold  it  to  be  an  absolute  payment  unless  there  be  an 
express  agreement  to  take  it  as  jyer  se  a  satisfaction.  In  the  absence 
of  such  an  agreement  the  law  will  not  compel  the  creditor  to  apply  it 
in  discharge  till  the  money  be  actually  received.  Here  are  no  such  words 
as  "absolute  payment,"  "absolute  satisfaction,"  "absolute  discharge,"  or 
the  like,  to  indicate  that  the  credit  was  to  differ  from  the  one  usual  in 
such  cases.  Even  the  transfer  of  a  negotiable  note  against  a  third 
person  would  not  have  been  a  satisfaction  on  the  terms  here  used. 
But  we  are  not  left  to  implication.  If  this  plaintiff  really  intended  to 
work  an  extinguishment  of  his  claim  against  McDuffe,  why  did  he  not 
indorse  Artcher's  promise  as  so  much  money  paid  on  the  note,  or 
credit  or  give  a  receipt  for  it  as  such  ?  Down  to  the  very  time  of  the 
trial  he  had  done  neither.  He  left  his  note  to  speak  the  same  language 
as  it  did  before  the  arrangement  was  made ;  at  least  we  are  to  intend 
that  he  did,  for  his  counsel  do  not  pretend  that  he  had  ajiplied  the 
demand  said  to  have  been  transferred,  in  any  form,  absolute  or  con- 
ditional. In  refusing  to  apply  it  absolutely  I  admit  he  acted  according 
to  the  legal  inference  of  what  was  intended ;  but  the  omission 
strengthens  that  inference.  It  took  away  all  doubt  of  what  the 
parties  intended,  and  left  no  question  for  the  jury.  Suppose  this 
action  had  been  against  McDuffe,  and  it  had  appeared  that  the  money 
had  never  been  paid  by  the  mortgagors  and  was  never  like  to  be,  or 
that  Zeh  had  failed  to  collect  of  Artcher  for  any  cause  not  imputable 
to  Zeh :  clearly  the  mere  arrangement  between  him  and  McDuffe  could 
not  be  allowed  as  a  bar. 

Since  the  revised  Statute  of  Frauds  putting  equitable  transfers  of 
choses  in  action  on  a  footing  similar  to  that  on  which  sales  of  goods 
stand,  if  there  be  no  writing  and  no  deUvery  the  assignee  must  pay 
something,  at  least  j^art  with  something  of  value.  The  statute 
requires  that  he  should  pay  some  part  of  the  purchase-money.  No 
doubt  it  must  be  taken  in  its  spirit  to  mean  any  thing  or  part  of  any 
thing,  given  by  way  of  consideration,  which  is  money  or  money's 
worth.  But  the  object  was  to  have  something  pass  between  the 
parties  beside  mere  words,  some  symbol  like  earnest  money.  2  Black. 
Com.  448.  Here  every  thing  lies  in  parol ;  and  even  if  there  had  been 
the  express  agreement  which  is  set  uj),  —  an  agreement  for  absolute 
credit, — I  should  doubt  whether  the  statute  would  be  satisfied  without 
something  more ;  at  least  some  absolute  indorsement  or  written  credit 
at  the  time.  One  object  of  the  statute  was  to  prevent  perjury.  The 
method  taken  was  to  have  something  done,  not  to  rest  every  thing 
upon  mei'e  oral  agreement.  Here  even  the  agreement  is  not  direct, 
but  rather  sought  to  be  raised  by  way  of  construction  on  an  equivocal 
conversation. 

Taken  in  any  view,  therefore,  I  think  the   assignment  was  void 


SECT,    v.]  EDGERTON    V.    HODGE.  333 

within  the  intent  as  it  is  clearly  within  the  words  of  the  Statute  of 

Frauds, 

The  judgment  must  he  reversed ;  a  venire  de  novo  to  go  from  the 
court  below ;  the  costs  to  abide  the  event. 

Ordered  accordinfjhj} 


SHELDON  EDGERTON  v.  J.  H.  C.  HODGE. 

Supreme  Court  of  Vermont,  January  Term,  1869. 

[Reported  in  41  Vermont  Reports,  676.] 

Assumpsit,  which  was  referred  to  a  referee,  who  reported :  — 
"  That  on  the  30th  of  June,  1864,  the  parties  made  an  agi-eement  by 
parol  by  which  the  defendant  agreed  to  sell  to  the  plaintiff  what  new- 
milk'  cheese  he  then  had  on  hand  and  unsold,  amounting  to  975  pounds, 
and  the  new-milk  cheese  he  should  make  thereafter  during  the  season ; 
and  the  plaintiff  agreed  to  pay  the  defendant  therefor  at  the  rate  of 
15^  cents  per  pound,  and  every  twenty  days  thereafter  agi-eed  to  call 
at  the  defendant's  house  in  Dorset,  select  such  cheese  as  Avould  be  fit 
for  market,  attend  its  weight  there,  and  pay  the  defendant  for  the 
cheese  so  selected  and  weighed,  and  then  the  defendant  was  to  deliver 
the  same  to  the  plaintiff  at  the  railroad  depot  in  Manchester.   The  day 
after  the  above  agi-eement  was  made  the  defendant  by  his  son  Albert 
Hodge  wrote  and  sent  by  mail  a  letter  to  the  plaintiff  (a  copy  of  which 
is  annexed,  dated  July  1,  1864),  depositing  the  same  at  the  post-office 
in  East  Rupei-t,  directed  to  the  plaintiff  at  Pawlet  and  received  by 
him  by  mail  on  the  same  day.     The  next  day,  after  the  return  mail 
from  Pawlet  to  East  Rupert  had  gone  out,  it  being  on  Saturday,  the 
plaintiff  enclosed  in  a  letter  directed  to  the  defendant  at  East  Rupert, 
and  left  it  in  the  post-office  at  Pawlet  to  be  carried  by  mail  to  the 
defendant,  the  sum  of  850.     (A  copy  of  the  plaintiff's  letter  is  here- 
unto annexed,  and  the    envelope    enclosing   the    850   is   postmarked 
«  Pawlet,  Jidy  4.")     This  letter  of  the  plaintiff  was,  on  the  8th  of  July, 
1864,  handed  to  the  said  Albert  Hodge  by  the  postmaster  of  East 
Rupert,  and  it  was  on  the  same  day  carried  by  him  to  the  defendant, 
opened  by  the  said  Albert,  the    850  refused  to  be  received  by  the 
defendant,  and  the  letter  of  the  plaintiff,  with  the  $50  and  the  envelope 
enclosing  them,  were  by  mail  returned  to  the  plaintiff  with  no  com- 
munication accompanying  them   from   the  defendant.      The  plaintiff 

1  See  Brabin  v..  Hyde,  30  Barb.  265,  32  N.  Y.  519 ;  Mattice  v.  AUen,  33  Barb.  643 ; 
Clark  V.  Tucker,  2  Sandf.  157  ;  Teed  v.  Teed,  44  Barb.  96 ;  Dow  v.  Worthen,  37  Vt. 
108.  —  Ed. 


334  EDGERTON    V.    HODGE.  [CHAP.    I. 

received  the  so  enclosed  wrapj^er,  money  and  letter,  on  the  9th  of  July, 
1864,  and  kept  the  same  $50  for  six  months  thereafter.  A  daily  mail 
is  carried  between  the  post-offices  of  Pawlet  and  East  Rupert,  a  dis- 
tance of  six  miles.  On  the  20th  of  July,  1864,  the  jDlaintiff  sent  word 
to  the  defendant  to  deliver  what  cheese  he  had  fit  for  market  to  the 
depot  in  Manchester.  The  defendant  replied  to  the  messenger  that  he 
had  no  cheese  for  the  plaintiff.  Xo  other  communication  ever  took 
place  between  the  parties  in  regard  to  the  cheese  after  the  return  of 
the  money  as  above  stated  vintil  this  suit  was  brought.  The  defendant 
sold  all  his  cheese  to  other  parties,  making  his  first  sale  on  the  26th  of 
July,  1864. 

"  If  the  court  shall  be  of  oi^inion  that  from  the  foregoing  facts  the 
plaintiff  is  entitled  to  recover,  and  that  the  rule  of  damages  should  be 
the  New  York  market  larice  for  cheese  for  the  season  of  1864,  deduct- 
ing freight  and  commission,  then  I  find  due  the  plaintiff  $411.01.  If 
the  current  price  in  the  country,  paid  by  purchasers  and  sent  by 
them  to  market,  is  to  be  the  rule,  then  I  find  due  the  plaintiff  the  sum 

of  1306.32. 

"DoKSET,  July  Ist,  1864. 

'•  Mr.  Edgerton. 

"  Sir,  — According  to  our  talk  yesterday  you  bought  my  cheese  for  the  season. 

I  shall  stand  to  it,  but  shall  want  you  to  pay  me  $50  to  bind  it.     I  s'pose  there  is 

nothing  holding  unless  there  is  money  paid.    I  do  not  wish  you  to  think  I  wish  to 

fly  from  letting  you  have  it,  so  that  it  is  sure.     I  will  pay  you  interest  on  the 

money  until  the  cheese  is  delivered. 

"Yours  in  haste,  J.  H.  C.  Hodge, 

"Per  A.  H. 

"  Pawlet,  July  2,  1864. 
"Mr.  Hodge. 

"Dear  Sir,  —  I  enclose  you  $50  to  apply  on  your  dairy  of  cheese  as  you 
proposed.  Yours  truly, 

"  S.  Edgerton." 

The  court  at  the  March  temi,  1868,  Pierpoint,  C.  J.,  presiding,  ren- 
dered judgment  on  the  report  that  the  plaintiff  recover  of  the  defend- 
ant the  smaller  sum  reported  by  the  referee,  and  for  his  costs,  to  which 
the  defendant  excepted. 

Edgerton  &  Nicholson  and  J.  B.  Bromley^  for  the  defendant. 

Fayette  Potter^  for  the  plaintiff. 

The  opinion  of  the  court  was  delivered  by 

WiLSOisr,  J.  The  parol  agreement  entered  into  by  the  parties  June 
30th,  being  for  the  sale  of  goods,  wares,  and  merchandise,  for  the  price 
of  $40  and  more,  is  within  the  Statute  of  Frauds,  and  inoperative  unless 
taken  out  of  the  statute  by  the  subsequent  acts  of  the  parties.  It  is 
claimed  by  the  plaintiff  that  the  defendant's  letter  under  date  of  July 
1st,  and  the  depositing  of  the  plaintiff's  letter  with  the  $50  in  the  post- 


SECT,    v.]  EDGERTON   V.    HODGE.  335 

office  on  the  2d  of  that  month,  constitute  a  i)aynient  of  part  of  the 
purchase-money  within  the  meaning  of  the  statute.    It  will  be  observed 
that  when  those  letters  were  written  no  binding  agreement  had  been 
concluded.     The  defendant  in  his  letter  of  July  1st  says  :  "According 
to  our  talk  yesterday,  you  bought  my  cheese  for  the  season.     I  sliall 
stand  to  it,  but  shall  want  $50  to  bind  it."     By  that  letter  tlie  plaintiff 
was  notified  that  he  could  make  the  bargain  binding  upon  himself  as 
well  as  the  defendant  by  paying  to  the  defendant  the  sum  demanded 
for  that  purpose.     The  i;)laintiff  on  the  2d  of  July  enclosed  850  in  a 
letter  directed  to  the  defendant,  and  deposited  it  in  the  post-office, 
which  letter  was  delivered  to  the  defendant  on  the  8th  of  that  month. 
He  did  not  accept  the  money,  but  returned  it  to  the  plaintiff.     It  is 
clear  that  the  act  of  depositing  the  letter  and  the  money  in  the  post- 
office  was  not  a  payment  to  the  defendant.     His  letter  did  not  direct 
the  money  to  be  sent  by  mail :  it  contains  nothing  that  would  indicate 
that  the  defendant  expected  the   plaintiff  would  reply  by  letter,  or 
accept  the  proposition  by  depositing  the  money  in  the  post-office ;  and 
the  fact  that  the  defendant  by  letter  offered  to  allow  the  plaintiff  to 
perfect  the  agreement  by  paying  part  of  the  purchase-money  did  not 
authorize  or  invite  the  plaintiff  to  send  the  money  by  mail  or  make  the 
mail  the  defendant's  carrier  of  the  money.   The  language  of  the  defend- 
ant's letter  is,  "I  shall  want  you  to  pay  me  $50  to  bind  it;"  that  is,  to 
make  it  a  valid  contract. 

The  money  when  deposited  in  the  post-office  belonged  to  the  plain- 
tiff;  it  belonged  to  the  plaintiff  while  being  carried  by  mail  to  the 
defendant,  and  it  woidd  continue  the  property  of  the  plaintiff  unless 
accepted  by  the  defendant.     The  plaintiff  took  the  risk  not  only  of  the 
safe  conveyance  of  the  money  to  the  defendant,  but  also  as  to  the  will- 
ingness of  the  defendant  to  accept  it.     The  defendant's  letter,  not  con- 
stituting such  a  note  or  memorandum  of  the  agreement  as  the  statute 
required,  left  it  optional  with  the  defendant  to  acce})t  or  refuse  part 
payment  when  offered  to  him,  the  same  as  if  the  defendant  bad  sent  to 
the  plaintiff  a  verbal  communication  of  the  same  import  as  the  defend- 
ant's letter.     A  point  is  made  by  counsel  as  to  whether  the  money  Avas 
conveyed  and  delivered  or  offered  to  the  defendant  within  a  reasonable 
time  after  his  letter  was  received  by  the  plaintiff,  but  it  seems  to  us 
that  the  time  the  money  was  offered  is  not  material.     We  think,  even 
if  the  plaintiff  had  gone  immediately  after  receiving  the  defendant's 
letter  and  offered  and  tendered  to  him  the  $50,  the  defendant  would 
have  been  under  no  legal  obligation  to  accept  it.   Tlie  mere  offer  of  the 
defendant  to  receive  the  money  Avould  not  estop  hhn  from  refusing  to 
accept  it ;  but  in  order  to  take  the  case  out  of  the  operation  of  the 
statute  it  required  the  agreement  or  consent  of  both  parties  as  to  pay- 
ment by  the  plaintiff  and  acceptance  of  it  by  the  defendant.    Upon  the 
facts  of  this  case  we  think  the  rights  of  the  parties  rest  upon  and  are 


336  EDGERTON  V.    HODGE.  [CHAP.    I. 

to  be  determined  by  the  verbal  agreement  entered  into  by  them  on  the 
30th  of  June,  and  that  their  subsequent  attempts  to  make  that  agree- 
ment a  vahd  contract  cannot  aid  the  plaintiff.  The  statute  provides 
that  "  no  contract  for  the  sale  of  any  goods,  Avares,  or  merchandise,  for 
the  price  of  $40  or  more,  shall  be  valid  unless  the  pui-chaser  shall  accept 
and  receive  part  of  the  goods  so  sold,  or  shall  give  something  in  earnest 
to  bind  the  bargain  or  in  part  payment,  or  imless  some  note  or  memo- 
randum of  the  bargain  be  made  in  wi'iting  and  signed  by  the  party  to 
be  charged  thereby,  or  by  some  person  thereunto  by  him  lawfully 
authorized." 

The  very  language  of  the  statute  above  quoted  implies  that,  in  which- 
ever way  the  parties  verbally  agree  or  propose  that  a  contract  for  the 
sale  of  goods,  wares,  or  merchandise,  for  the  price  of  $40  or  more,  shall 
be  made  exempt  from  the  Statute  of  Frauds,  whether  it  be  by  the  pur- 
chaser accepting  and  receiving  pai't  of  the  goods  so  sold,  by  giving 
something  in  earnest  to  bind  the  bargain  or  in  part  payment,  or  by 
making  a  note  or  memorandum  of  the  bargain,  it  must  be  done,  if  done 
at  all,  by  the  consent  of  both  parties.  It  is  obvious  that  it  would 
require  the  consent  of  the  purchaser  to  accept  and  receive  part  of  the 
goods,  and  he  could  not  receive  them  imless  by  consent  of  the  seller; 
the  purchaser  could  not  give  something  in  earaest  to  bind  the  bargain 
or  in  part  payment,  unless  the  seller  accej^t  and  receive  it ;  nor  could  a 
note  or  memorandum  of  the  bargain  be  made  and  signed,  unless  by  the 
consent  of  the  party  to  be  charged  thereby.  A  vaUd  contract  is  an 
agreement  or  covenant  between  two  or  more  persons,  in  which  each 
party  binds  himself  to  do  or  forbear  some  act ;  and  each  acquires  a 
right  to  what  the  other  promises  ;  but  if  the  parties  in  making  a  con- 
tract Uke  the  present  one  omit  to  do  what  the  statute  requires  to  be 
done  to  make  a  valid  contract,  it  would  require  the  consent  of  both 
parties  to  supply  the  thing  omitted.  Suppose  it  had  been  one  stipixla- 
tion  of  the  verbal  agreement  on  the  80th  of  June  that  the  plaintiff 
should  give  and  the  defendant  I'eceive  something  in  earnest  to  bind  the 
bargain,  and  in  pursuance  of  such  stipulation  the  plaintiff  had  then 
offered  to  give  or  pay  the  amount  so  stipulated,  and  the  defendant  had 
refused  to  receive  it,  saymg  that  he  prefen'ed  not  to  receive  any  money 
until  he  had  delivered  the  whole  or  part  of  the  property,  or  had  refused 
to  accept  the  money  so  offered,  or  do  any  other  act  to  bind  the  bar- 
gain, -without  giving  any  reason  for  such  refusal,  it  would  be  evident 
that  he  did  not  intend  to  make  a  binding  contract.  But  the  fact  that 
he  had  made  such  verbal  agreement  to  receive  something  or  to  do  some 
other  act  to  bind  the  bargain,  and  that  the  plaintiff  was  ready  and 
offered  to  comi:)ly  on  his  part,  would  not  take  the  agreement  out  of  the 
statute.  A  verbal  stipulation  to  give  and  to  receive  something  in 
earnest  to  bind  the  bargain  or  in  part  payment,  or  a  verbal  promise  to 
make  a  note  or  memorandum  in  writing  necessary  to  exempt  the  agree- 


SECT.    VI.]  SIMON   V.    METIVIER.  337 

ment  from  the  operation  of  the  statute,  is  as  much  within  the  Statute 
of  Frauds  as  is  the  agreement  or  contract  taken  as  a  whole  ;  and  a  note 
or  memorandum  in  rehition  to  giving  something  in  earnest  to  bind  the 
bargain  or  in  part  pajnnent,  which  is  insufficient  of  itself  to  take  the 
contract  out  of  the  statute,  is  also  insufficient  to  make  the  contract 
binding  upon  either  jjarty. 

The  judgment  of  the  county  court  is  reversed,  and  judgment  for  the 
defendant  for  his  costs. 


SECTION  yi. 

"  Or  that  some  Note  or  Memorandum  in  Writing  of  the  said  Bargain 
be  made  and  sig7ied  by  the  Parties  to  he  charged  by  such  Contract^ 
or  their  Agents  thereunto  lawfidly  authorized^ 

SIMON  y.  METIVIER  or  MOTIVOS. 
In  the  King's  Bench,  Trinity  Term,  1766. 

\Re.ported  in  1  William  Dlackstone,  599.] 

Case  for  not  taking  away  certain  drugs  to  the  value  of  £110,  which 
were  bought  by  the  defendant  at  an  auction ;  and  having  since  sunk 
in  their  value  he  refused  to  take  them,  and  they  were  re-sold  at  an 
under  price  ;  and  this  action  was  brought  to  recover  the  difference.  It 
appeared  on  evidence  that,  by  the  terms  of  the  sale,  if  Qd.  was  not  ten- 
dered by  the  buyer  the  goods  might  be  put  up  again  and  re-sold ;  that 
no  6f?.  was  paid ;  but  that  the  auctioneer  took  down  the  price  and 
buyer's  name  in  writing ;  and  that  after  the  day  of  bidding  and  before 
the  day  of  payment  the  goods  were  weighed  off  to  a  servant  of  the 
defendant. 

The  jury  found  a  vei'dict  for  the  plaintiff. 

Stoice  and  Davenport  moved  for  a  new  trial :  because  the  sale  was 
void  by  the  Statute  of  Frauds ;  being  above  the  value  of  £10  and  no 
earnest  given,  or  note  or  memorandum  signed  by  the  party:  and 
because  there  was  no  mutuality  in  the  contract ;  for  as  no  Qd.  was  paid 
the  seller  was  not  bound  by  it,  and  therefore  not  the  buyer.  The  plain- 
tiff might  and  actually  did  re-sell  the  goods  according  to  the  conditions 
of  the  sale. 

Norton  and  Wallace  shewed  for  cause,  that  the  conditions  of  the 
sale  and  the  auctioneer's  taking  down  the  name  of  the  buyer  and  price 
VOL.  I.  22 


338  SIMON   V.   METIVIER.  [CHAP.   I. 

are  equivalent  to  a  note  in  writing.  That  the  auctioneer  was  agent  to 
the  buyer  joro  tempore  /  that  his  giving  in  his  name  was  an  authority 
to  the  auctioneer  to  set  down  the  contract.  Tliat  the  not  paying  the 
Qd.  was  the  defendant's  own  laches,  of  which  he  shall  take  no  advan- 
tage. That  the  intent  of  the  Statute  of  Frauds  was  to  suppress  pri- 
vate fraudulent  contracts  sujij^orted  by  j^erjury.  No  such  inconven- 
ience in  sales  by  auction,  which  are  transacted  in  the  face  of  such 
numbers  that  a  man  cannot  by  false  e^ddence  be  made  a  jDurchaser 
whether  he  will  or  not.  That  the  terms  and  conditions  of  the  sale 
when  any  one  bids  are  the  terms  of  the  bidder  as  well  as  the  seller. 
The  buyer  thereby  accedes  to  the  terms  joroposed,  and  could  bring  an 
action  upon  them  if  not  performed. 

LoED  Mansfield,  C.  J.  The  question  is  singly  upon  the  Statute  of 
Frauds :  whether  the  contract  is  void  by  the  provisions  of  that  positive 
law.  The  object  of  the  Legislature  in  that  statute  was  a  wise  one ; 
and  what  the  Legislature  meant  is  the  rule  both  at  law  and  equity ; 
for  in  this  case  they  are  both  the  same.  The  key  to  the  construction 
of  the  act  is  the  intent  of  the  Legislature ;  and  therefore  many  cases, 
though  seemingly  within  the  letter,  have  been  let  out  of  it.  More 
instances  have  indeed  occun-ed  in  courts  of  equity  than  of  law,  but  the- 
rule  is  in  both  the  same.  For  instance,  where  a  man  admits  the  con- 
tract to  have  been  made  it  is  out  of  the  statute ;  for  here  there  can  be 
no  perjury.  Again,  no  advantage  shall  be  taken  of  this  statute  to  pro- 
tect the  fraud  of  another.  Therefore  if  the  contract  is  executed,  it  is 
never  set  aside.  And  there  are  many  other  general  rules  by  Avay  of 
exception  to  the  statute. 

There  are  two  lights  in  which  the  present  case  may  be  considered. 

1st,  Whether  sales  by  auction  are  ^vithin  the  statute.  They  certainly 
existed  in  England,  and  in  all  other  countries,  at  the  date  of  this  stat- 
ute. The  auctioneer  is  a  third  person  who  is  to  many  intents  the  agent 
of  both  parties.  The  solemnity  of  that  kind  of  sale  precludes  all  per- 
jury as  to  the  tact  itself  of  sale.  The  contract  is  executed  when  the 
hainmcr  is  knocked  down.  I  remember  a  case  where  some  sugars  were 
bought  at  an  auction,  and  afterwai'ds  consumed  by  fire  in  the  auction 
warehouse;  and  the  loss  fell  upon  the  buyer.  The  circumstance  of 
weighing  off  is  similar  to  this,  and  very  material  in  the  present  case. 
And  according  to  the  incHnation  of  my  present  opinion  auctions  in 
general  are  not  within  the  statute.  But  this  is  not  necessary  to  be  now 
determined ;  for  if  they  are  within  it, 

2d,  The  requisites  of  the  statute  are  well  comjjlied  with.  Every 
bidding  is  an  accession  to  the  conditions  of  sale.  The  name  is  put 
down  by  the  buyer's  authority.  No  latitude  is  left  to  fraud  and  per- 
jury from  the  loose  memory  of  witnesses. 

WiLMOT,  J.  It  may  be  a  great  question  whether  sales  by  auction 
are  within  the  statute.    They  were  certainly  not  meant  ty  the  act, 


SECT.    VI.]  RUCKER   V.   CAMMEYER.  339 

which  was  to  extend  only  to  the  mischiefs  created  by  private  and  clan- 
destine sales.  Had  the  Statute  of  Frauds  been  always  carried  into 
execution  according  to  the  letter,  it  would  have  done  ten  times  more 
mischief  than  it  has  done  good,  by  protecting  rather  than  by  pre- 
venting frauds.  I  therefore  incline  to  think  sales  by  auction  ojjenly 
transacted  before  five  hundred  people  are  not  within  the  statute. 
But  the  present  agreement  is  strictly  within  the  restrictions  of  the 
act.  As  to  the  objection  for  want  of  mutuality ;  that  power  of  re-sell- 
ing was  optional  in  the  seller,  if  he  pleased  to  require  the  earnest,  and 
it  was  denied.  And  the  meaning  clearly  was,  that  upon  refusal  goods 
may  be  instantly  put  uj)  agam.  Not  being  asked,  the  contract  clearly 
bound  the  seller  Avithout  it ;  and  therefore  shall  bind  the  buyer.  The 
weighing  it  afterwards  is  a  very  corroborating  circumstance.  I  remem- 
ber the  case  of  the  sale  of  some  balsam,  which  was  weighed  and  put 
into  a  pot  of  the  seller  instead  of  a  pitcher  which  the  buyer  had 
brought  and  left  at  the  seller's  shop.  This  was  held  a  sufficient  deliv- 
ery to  bind  the  contract. 

"Yates,  J.  I  much  doubt  whether  the  contract  was  within  the  Stat- 
ute of  Frauds.  If  it  was,  I  am  clear  that  the  requisites  of  the  statute 
were  duly  observed.  Where  Sir  Thomas  Osborne  bespoke  a  chariot, 
that  being  in  its  nature  not  deliverable  immediately,  it  was  held  not 
within  the  statute ;  because  not  capable  of  all  the  requisites  of  the 
statute.  I  look  upon  this  contract  as  executory  in  its  nature,  and  being 
to  be  executed  within  a  year,  is  so  far  not  within  the  statute. 

AsTOX,  J.  I  think  the  terms  of  the  sale  and  the  requisites  of  the 
statute  were  fully  complied  with  by  giving  in  his  name  as  a  purchaser ; 
which  is  better  than  the  sixjDcnce  earnest. 

Hide  nisi  for  a  neio  trial  discharged. 


RUCIvER  V.  CAJNBIEYER. 

At  Guildhall,  coram  Lord  Kenyon,  February  26,  1794. 

[RejMrted  in  1  Espinasse,  105.] 

Assumpsit  to  recover  the  price  often  hogsheads  of  sugar  sold  by  the 
plaintiff  to  the  defendant. 

The  case  as  proved  on  the  part  of  the  plaintiff  was  that,  having 
a  quantity  of  sugars  to  sell,  samples  were  sent,  as  is  usual,  to  the 
plaintiff's  broker.  The  broker  was  called,  and  proved  that  the  samples 
were  sent  to  him  and  exposed,  together  with  other  sami)los  of  different 
sugars ;  that  the  defendant  examined  the  samples  and  fixed  ou  those 


340  SAUNDERSON   V.   JACKSON.  [CHAP.   I. 

for  which  the  action  was  brought ;  that  he  asked  the  broker  from 
whence  the  sugars  had  come,  and  was  answered  "  that  they  came  from 
the  north  —  fi'om  Scotland."  He  asked  the  price,  and  was  told  63s. 
per  cwt.  The  broker  said  frirther  that  he  afterwards  brought  the  plain- 
tiff and  defendant  together,  when  he  supposed  the  bargain  was  con- 
cluded, as  he  soon  after  received  orders  from  the  plaintiff  to  make  out 
sale-notes  of  ten  hogsheads  to  the  defendant  at  63s.  per  cwt.  These 
sale-notes  he  said  contained  the  price  and  quantity  of  the  sugar  sold, 
and  that  one  of  them  was  usually  given  to  the  buyer  and  the  other  to 
the  seller.  The  plaintiff  he  said  had  his  note  from  him,  and  the 
defendant  had  sent  for  his,  which  was  delivered  to  him,  and  soon  after 
part  of  the  sugar,  which  he  sent  back,  saying  that  he  had  contracted 
for  new  sugars  but  that  these  were  old.  He  said  that  at  the  time  of 
the  sale  the  defendant  made  no  inquiry  whether  the  sugars  were  new 
or  old. 

JSrsJcine^  for  the  defendant,  objected  that  this  contract  was  within 
the  Statute  of  Frauds :  he  said  that,  the  broker  being  the  agent  of 
Rucker  the  plaintiff  only,  and  there  being  no  note  in  writing  on  the 
part  of  the  defendant,  either  by  himself  or  any  agent  authorized  by 
him,  nor  proof  of  any  direct  and  immediate  contract  of  sale  with 
him,  it  therefore  was  void  under  the  statute  for  want  of  a  note  in 
writing. 

Lord  Kenton  said  that  it  was  of  great  importance  not  to  break  in 
on  any  decision  which  had  taken  place  on  the  Statute  of  Frauds ;  and 
cited  the  case  of  Simon  v.  Motivos,  3  Burr.  1921,  as  ruling  the  present 
case.  He  said  that  the  broker  must  be  considered  as  the  agent  of  both 
parties,  and  need  not  be  constituted  by  writing ;  but  that  in  this  case 
he  had  in  fact  given  the  defendant  a  note  in  writing  when  he  gave  him 
the  sale  note,  which  he  had  accepted. 


SAUNDERSON  v.  JACKSON  and  Another. 
In  the  Common  Pleas,  June  28,  1800. 

{Reported  in  2  Bosanquet  ^  Puller,  238.] 

This  was  an  action  on  the  case  against  the  defendants  for  not  deliv- 
ering 1000  gallons  of  gin  to  the  plaintiff  within  a  certain  time  accord- 
ing to  a  bargain  entered  into  between  them.  There  was  a  second 
count  for  not  delivering  within  a  reasonable  time. 

The  cause  was  tried  before  Lord  Eldon,  C.  J.,  at  the  Guildhall  sittings 
after  last  Easter  term,  when  the  contract  for  the  delivery  of  the  gin 


SECT.    VI.]  SAUNDERSON   V.    JACKSON.  341 

having  been  proved  on  the  part  of  the  plaintiff,  the  defendants  insisted 
that  the  case  was  within  the  Statute  of  Frauds,  inasmuch  as  there  was 
no  note  or  memorandum  in  writing  of  the  bargain.  The  circum- 
♦stances  were  as  follows :  At  the  time  the  order  for  the  gin  was  given 
by  the  plaintiff  to  the  defendants  a  bill  of  parcels  was  delivered  to  the 
former,  the  printed  part  of  which  was  "  London,  Bought  of  Jackson 
and  Hankin,  distillers.  No.  8  Oxford  Street,"  and  then  followed  in 
writing,  "  1000  gallons  of  gin,  1  in  5  gin,  7s.  £350."  About  a  month 
after  the  above  period  the  defendants  also  wrote  the  following  letter  to 
the  plaintiff:  "  Sir,  we  wish  to  know  what  time  we  shall  send  you  a 
part  of  your  order,  and  shall  be  obliged  for  a  little  time  in  delivery  of 
the  remainder ;  must  request  you  to  return  our  pipes.  We  are  your 
humble  servants,  Jackson  and  Ilankin." 

On  this  evidence  his  Lordship  directed  the  jury  to  find  a  verdict  for 
the  plaintifi^  reserving  the  point  made  for  the  consideration  of  the  court. 

Accordingly,  Xens,  Serjt.,  having  on  a  former  day  obtained  a  rule  nisi 
for  setting  aside  this  verdict  and  entei'ing  a  nonsuit,  he  was  now  called 
upon  to  begin  in  sujiport  of  his  rule.  He  observed  that  the  words  of  the 
29  Car.  2,  c.  3,  §  17,  require  that  "some  note  or  memorandum  in  writ- 
ing of  the  bargain  be  made  and  signed  by  the  parties  to  be  charged  by 
such  contract,  or  their  agents  thereunto  lawfully  authorized;"  and 
that  in  Hawkins  v.  Holmes,  1  P.  Wms.  770,  and  Stokes  v.  Moore,  ib. 
in  the  notes  by  Mr.  Cox,  the  court  had  held  a  signing  by  the  party 
necessary,  though  the  draft  of  the  conveyance  had  in  the  former 
case  been  altered  in  the  handwriting  of  the  purchaser,  and  in  the  latter 
the  seller  had  himself  Avritten  instructions  for  the  renewal  of  a  lease. 
He  contended  that  though  the  printed  name  contained  in  the  bill  of 
parcels  might  have  amounted  to  a  signature  within  the  meaning  of  the 
act,  if  the  bill  of  parcels  had  been  intended  to  express  the  contract 
quasi  a  contract,  yet  that  in  this  case  it  had  not  been  delivered  to  the 
plaintiff  with  that  view;  that  the  contract  itself  had  never  been  reduced 
to  writing  or  ever  was  intended  to  be  so ;  and  thei'efore  the  bill  of 
parcels  could  only  operate  as  evidence  of  a  contract  previously  entered 
into ;  and  that  the  subsequent  letter  of  the  defendants,  though  signed 
by  them,  could  not  be  treated  as  a  note  or  memorandum  of  the  con- 
tract, being  accidental  and  only  a  reference  to  a  pre-existing  contract. 

/Shejiherd,  Serjt.,  contra,  was  stopped  by  the  court. 

Lord  Eldon,  C.  J.  This  bill  of  parcels,  though  not  the  contract 
itself,  may  amount  to  a  note  or  memorandum  of  the  contract  within 
the  meaning  of  the  statute.  The  single  question  therefore  is.  Whether 
if  a  man  be  in  the  habit  of  printing  instead  of  writing  his  name  he  may 
not  be  said  to  sign  by  his  printed  name  as  M'ell  as  his  written  name  ? 
At  all  events,  connecting  this  bill  of  parcels  with  the  subsequent  letter 
of  the  defendants,  I  think  the  case  is  clearly  taken  out  of  the  Statute 
of  Frauds.     For  although  it  be  admitted  that  the  letter  which  does  not 


342  EGERTON   V.   MATHEWS.  [CHAP.    I. 

state  the  terms  of  the  agi-eement  would  not  alone  have  been  sufficient, 
yet  as  the  jury  have  connected  it  with  something  which  does,  and  the 
letter  is  signed  by  the  defendants,  there  is  then  a  written  note  or 
memorandum  of  the  order  which  was  originally  given  by  the  plaintiff - 
signed  by  the  defendants.  It  has  been  decided^  that,  if  a  man  draw  up 
an  agreement  in  his  own  handwriting,  beginning,  "  I  A.  B.  agree,"  &c., 
and  leave  a  place  for  a  signature  at  the  bottom,  but  never  sign  it,  it 
may  be  considered  as  a  note  or  memorandum  in  writing  within  the 
statute.  And  yet  it  is  impossible  not  to  see  that  the  insertion  of  the 
nanae  at  the  beginning  was  not  intended  to  be  a  signatu.re,  and  that 
the  paper  was  meant  to  be  incomplete  until  it  was  fui'ther  signed. 
This  last  case  is  stronger  than  the  one  now  before  us,  and  affords  an 
answer  to  the  argument  that  this  bill  of  parcels  was  not  delivered  as  a 
note  or  memorandum  of  the  contract. 

Per  Curiam,  Biile  discharged. 


EGERTON  V.  MATHEWS   a^d  Another. 
In  the  King's   Bench,  February  12,  1805. 

[Reported  in  G  East,  307.] 

This  was  an  action  on  the  case  against  the  defendants  for  not  accept- 
ing and  paying  for  certain  goods  which  they  had  contracted  to  pur- 
chase by  the  following  memorandum  in  writing :  "  We  agree  to  give 
Mr.  Egerton  19f?.  per  lb.  for  30  bales  of  Smyrna  cotton,  customary 
allowance,  cash  3  per  cent.,  as  soon  as  our  certificate  is  complete." 
Signed,  Mathews  and  Turnbull,  and  dated  2d  SejDt.,  1803.  The 
defendants  had  before  become  bankruj^ts,  and  their  certificate  was  then 
waiting  for  the  Lord  Chancellor's  allowance,  and  after  it  Avas  allowed 
they  signed  the  memorandum  again.  On  the  opening  of  the  case  at 
the  trial  after  last  term  at  Guildhall  it  was  objected,  on  the  authoi'ity 
of  Wain  v.  Warlters,^  that,  the  contract  being  altogether  executory, 
and  no  consideration  appearing  on  the  face  of  the  writing  for  the 
promise,  nor  any  mutuality  in  the  engagement,  it  was  void  by  the  Stat- 
ute of  Frauds,  29  Car.  2,  c.  3.  And  it  not  being  at  that  time  adverted 
to  that  the  case  cited  turned  upon  the  meaning  of  the  word  "  agreement " 
(^.  e.,  to  pay  the  debt  of  another)  in  the  4th  clause  of  the  statute,  and 
that  this  case  was  governed  altogether  by  the  17th  clause,  the  object 
and  wording  of  which  is  different,  and  which  has  not  the  word  "  agree- 
ment," the  plaintiff  was  nonsuited.  But  on  a  motion  for  setting  aside. 
1  linight  V.  Crockford,  1  Esp.  N.  P.  Cas.  190.  2  5  East,  10. 


SECT.    VI.]  CHAMPION   V.    PLUMMER.  343 

the  nonsuit,  when  the  attention  of  the  court  was  called  to  the  difference 
of  the  two  clauses,  Lord  Ellenhoeougii,  C.  J.,  on  granting  a  rule  7iisi 
expressed  liis  assent  to  the  distinction  between  the  two  cases,  and  said 
that  the  nonsuit  had  proceeded  upon  a  mistake  at  the  trial  in  supposing 
that  they  were  the  same.     And  on  this  day  when 

The  Solicitor- General  and  3Iarryat  were  to  have  shewn  cause 
against  the  rule  (after  suggesting  that  the  M-ords  "  contract "  and  "  bar- 
gain"  in  the  17th  section  hnplicd  mutuality  and  consideration  as  much 
as  the  word  "  agreement "  in  the  -1th  clause,  and  therefore  brought  the 
case  within  the  princii)le  of  the  former  decision),  finding  that  the  whole 
court  were  decidedly  of  opinion  that  the  action  was  sustainable  upon 
the  17th  section  of  the  statute,  they  relinquished  any  further  oppo- 
sition to  the  rule  ;  and 

Lord  Ellexborougii,  C.  J.,  observed  that  the  words  of  the  statute 
were  satisfied  if  there  were  "  some  note  or  memorandum  in  writing 
of  the  bargain,  signed  by  the  parties  to  be  charged  by  such  contract." 
And  this  w^as  a  memorandum  of  the  bargain,  or  at  least  of  so  much 
of  it  as  was  sufficient  to  bind  the  parties  to  be  charged  thercAvith,  and 
whose  signatures  to  it  is  all  that  tlie  statute  requu-es. 

Laavrence,  J.  The  case  of  Wain  v.  Warlters  proceeded  on  this, 
that  in  order  to  charge  one  man  with  the  debt  of  another  the  agree- 
ment must  be  in  writing  ;  which  word  "  agreement "  we  considered  as 
properly  including  the  consideration  moving  to  as  well  as  the  promise 
by  the  party  to  be  so  charged  ;  and  that  the  statute  meant  to  require 
that  the  whole  agreement,  including  both,  should  be  in  writing. 

The  other  judges  concurring,  Mule  absolute. 


CHA]VIPIOX  AND  AxoTHER  V.  PLUMMER. 
In  the  Common  Pleas,  May  13,  1805. 

[RepoHed  in  1  New  Reports,  252.] 

This  was  an  action  against  the  defendant  for  not  delivering  to  the 
plaintiffs  20  puncheons  of  treacle  bought  of  him  by  the  plaintiffs 
at  37s.  per  cwt.  to  be  delivered  on  the  10th  of  December;  20 
puncheons  at  36s.  6c?.  per  cwt.  to  be  delivered  on  the  31st  of  October ; 
and  10  puncheons  at  37s.  per  cwt.  to  be  delivered  on  the  1st  of 
November. 

At  the  trial  before  Sir  James  Mansfield,  C.  J.,  at  the  Guildhall 
sittings  after  last  Hilary  term,  it  was  proved  that  a  bai-gain  for  the 
treacle  in  question  was  made   between   the  plaintiffs'  clerk  and  the 


344  CHAMPION   V.   PLUMMER.  [CHAP.   I. 

defendant  as  stated  in  the  declaration,  and  that  the  following  note 
was  made  by  the  plaintiffs'  clerk  in  a  common  memorandum  book 
and  signed  by  the  defendant  as  under :  — 

Left  leaf  of  the  book.  Rigbt  leaf  of  the  book. 

Bought  of  W.  Plummer  10  puncheons  (a)  37. 

20  puncheons  of  treacle 
37/0. 
to  be  delivered  by  10  Dec. 
(Signed)       Wm.  Plummer. 

20  puncheons  treacle  36/6. 
say  37/0. 
1  Nov. 
31  Oct.  Wm.  Plummer. 

On.  the  part  of  the  defendant  it  was  objected  that  this  did  not 
amount  to  a  sufficient  note  or  memorandum  of  the  contract  within 
the  Statute  of  Frauds,  29  Car.  2,  c.  3,  §  17,  as  it  was  not  sigaied  by 
the  purchaser ;  and  his  Lordship  being  of  this  opinion  nonsuited  the 

plaintiff. 

A  nxle  having  been  obtained  calling  on  the  defendant  to  show 
cause  why  the  nonsuit  should  not  be  set  aside  and  a  new  trial  had, 

Shepherd,  Serjt.,  shewed  cause,  and  insisted  that  it  did  not  appear 
by  the  memorandimi  who  was  the  buyer  of  the  goods ;  and  as  it  was 
not  signed  by  the  buyer,  he  coidd  not  be  bound  by  it ;  consequently 
the  defendant  ought  not  to  be  bound  by  an  agreement  which  would 
not  bind  the  other  contracting  party.  With  respect  to  the  case  of 
Saunderson  v.  Jackson,  2  Bos.  &  Pull.  238,  which  was  referred  to  on 
moving  for  the  rule,  he  observed  that,  upon  reference  to  the  brief  in 
that  cause,  it  appeared  that  the  name  of  the  purchaser  was  stated 
in  the  bill  of  parcels,  though  that  circumstance  is  not  mentioned  in  the 
report,  the  case  having  turned  entirely  upon  the  sufficiency  of  the 
vendor's  signature. 

Best,  Seijt.,  contra,  urged  that  the  expressions  of  the  statute,  "  some 
note  or  memorandum  in  writing  of  the  bargain  to  be  made  and 
signed  by  the  parties  to  be  charged  by  such  contract,"  did  not  require 
the  agreement  to  be  reduced  to  writing  in  regular  form,  and  that  it 
was  sufficient  if  the  party  to  be  charged  in  the  action  by  the  pro- 
duction of  the  memorandum  had  signed  it,  although  it  was  not 
signed  by  the  other  party. 

Sir  James  Mansfield,  C.  J.  How  can  that  be  said  to  be  a  con- 
tract, or  memorandum  of  a  contract,  which  does  not  state  who  are 
the  contracting  parties?  By  this  note  it  does  not  at  all  appear  to 
whom  the  goods  were  sold.  It  would  prove  a  sale  to  any  other  person 
as  well  as  to  the  plaintiffs :  there  cannot  be  a  contract  without  two 


SECT.   VI.]  KLINITZ   V.   SURRY.  345 

parties,  and  it  is  customary  in  the  course  of  business  to  state  tlie  name 
of  the  purchaser  as  well  as  of  the  seller  in  every  bill  of  parcels.  This 
note  does  not  appear  to  me  to  amount  to  any  memorandum  in  WTiting 
of  a  bargain. 

The  rest  of  the  court  concurring,  Hule  discharged. 


KLINITZ  V.  SURRY. 

At  Nisi  Prius,  coram  Lord  Ellenborough,  December  12, 1805. 

[Reported  in  5  Espinasse,  267.] 

This  was  a  special  action  on  the  case.  The  declaration  stated  that 
the  i:)laintiff  had  sold  to  the  defendant  50  quarters  of  wheat,  which 
tl^e  defendant  had  refused  to  receive,  for  which  action  was  brought. 

The  evidence  was  that  the  plaintiff  had  sent  195  quarters  of  Avheat 
consigned  to  his  factors  Giles  and  Jennings  for  sale,  Jennings  stated 
that  he  sold  by  sample  50  quarters  to  the  defendant. 

The  usual  mode  of  selling  on  the  Corn  Exchange  he  stated  to  be, 
that  he  made  an  entiy  in  his  book  of  the  quantity  sold  and  the  price 
it  sold  for.  He  said  the  defendant  when  he  made  the  sale  told  him 
he  employed  Kendal  as  his  ledger  to  receive  the  corn,  and  to  whom 
the  sample  was  delivered.  But  on  his  cross-examination  he  said  he 
considered  himself  as  agent  for  the  seller  only. 

The  sample  had  been  delivered  to  Kendal  only,  and  the  defence 
on  the  merits  was  that  the  bulk  did  not  coiTespond  w^th  the  sample. 

The  counsel  for  the  defendant  contended  that  this  case  came  within 
the  Statute  of  Frauds  and  was  void,  there  being  neither  a  note  in 
writing  or  a  delivery  of  any  part  of  the  commodity  sold ;  and  the  case 
of  Cooper  v.  Elston,  7  Term  Rep.  14,  was  cited. 

It  was  answered  by  the  plaintiff's  counsel  that  there  was  in  fact 
a  part  deliveiy,  the  defendant's  agent  having  received  a  sample  of 
the  corn  in  part,  and  that  the  factor  was  to  be  considered  as  the 
agent  for  both  parties,  and  the  entry  in  his  book  was  a  note  in  -vmting 
sufficient  to  satisfy  the  statute. 

Lord  ELLE^^iOROUGII.  How  far  the  delivery  of  the  sample  in  this 
case  is  a  part  delivery  to  satisfy  the  Statute  of  Frauds  or  not  depends 
upon  the  manner  in  which  that  sample  was  taken  ;  if  the  50  quarters 
were  standing  as  a  distinct  parcel  and  bulk,  and  the  sample  taken 
from  it;  if  the  quantity  was  thereby  diminished  so  much,  and  the 
delivery  of  the  50  quarters  was  so  much  less  by  this  quantity,  I 
think  it  would  be  a  part  delivery,  and  sufficient  within  the  statute ; 


346  PHILLIMORE   V.   BARRY.  [CHAP.    I. 

but  it  would  be  otherwise  if  the  delivery  of  the  sample  was  a  col- 
lateral thing,  a  part  of  another  parcel  of  the  same  sort  of  corn. 

It  therefore  became  a  question  whether  the  50  quarters  which 
were  admitted  to  be  pai't  of  the  196  quarters  Avere  separated  fi"om 
them,  and  [or]  whether  the  whole  quantity  was  together  so  that  the 
sample  was  taken  from  one  bulk  or  the  other.  Upon  this  there  was 
contradictory  evidence. 

As  to  the  second  point,  the  book  of  the  corn-factors  Giles  and 
Jennings  was  produced :  there  was  an  entry  of  the  prices  and  quantity, 
but  the  name  of  the  seller  was  not  in  it ;  upon  which  Lord  Ellen- 
BOEOUGH  said  he  was  clearly  of  opinion  that  that  was  not  a  note  in 
writing  within  the  Statute  of  Frauds. 

His  Lordship  in  summing  up  to  the  jury  left  them  first  to  consider 
upon  the  fact  of  whether  the  bulk  and  sample  did  in  fact  corre- 
spond. 

The  jury  found  that  it  did  not;  the  defendant  therefore  had  a 
verdict.^ 


PHILLBIORE   Am)   Others  v.  BARRY  and  Anothek. 
At  Nisi  Prids,  coram  Lord  Ellenborough,  December  17,  1808. 

[Reported  in  1  Campbell,  613.] 

This  was  an  action  for  goods  sold  to  recover  the  price  of  thirteen 
puncheons  of  rum. 

The  cargo  of  a  Danish  prize,  of  which  the  rum  in  question  formed  a 
part,  was  lodged  in  the  warehouses  of  Messrs.  Fector  &  Minet  at  Do- 
ver, and  was  sold  by  auction  in  various  lots  on  the  28th  of  April,  1808. 
By  the  conditions  of  sale  a  deposit  of  25  per  cent,  was  to  be  paid 
immediately,  and  the  remainder  of  the  purchase-money  in  thii-ty  days. 
At  the  end  of  that  time  the  purchasers  wei-e  to  carry  away  the  goods,  or 

1  S.  C,  Paley  on  Agency,  (3(1  ed.)  171,  note.  Assumpsit  for  not  receiving  corn  sold. 
By  the  course  of  the  corn  market  the  seller's  broker  delivers  a  sample  and  order  for  the 
delivery  of  the  corn  to  the  buyer,  who  has  till  next  market  day  to  refuse  it  if  he  find 
the  bulk  vary  from  the  sample.  The  buyer  having  had  the  corn  examined  refused 
the  contract.  One  objection  in  point  of  law  was,  that  there  was  no  memorandum  of 
the  contract  signed  by  the  buyer  or  his  agent.  Lord  Ellenborough  declared  himself 
clearly  of  opinion  that  the  broker's  note  was  not  sufHcient  of  itself,  he  being  pruna 
facie  only  the  agent  of  the  seller  and  not  of  the  buyer ;  but  if  the  buj'er  acted  upon  the 
order,  as  in  this  case  he  appeared  to  have  done  by  sending  his  servant  to  examine 
the  bulk  upon  the  authority  of  the  broker's  order,  that  was  such  an  adoption  of  the 
broker's  agency  as  made  him  agent  for  both  parties,  and  his  note  sufficient  within  the 
Statute  of  Frauds.  — Ed. 


SECT.    VI.]  PHILLIMORE    V.    BARRY.  347 

were  afterwards  to  pay  warehouse  rent.  Before  the  day  of  sale  the 
defendants  had  written  to  Messrs.  Fector  &  Minet  to  buy  thirteen 
puncheons  of  this  prize  rum  for  them.  Accordingly  Mr.  John  Minet 
Fector,  one  of  that  firm,  bid  for  several  lots,  which  were  knocked  down 
to  him,  and  amounted  to  the  quantity  required.  The  auctioneer, 
opposite  to  each  of  these  lots,  wrote  down  in  his  printed  catalogue  the 
price  for  which  they  sold  and  the  initials  "J.  M.  F.,"  meaning 
John  Minet  Fector.  On  the  11th  of  jMay  the  defendants  wrote  a  letter 
to  Messrs.  Fector  &  Minet,  recognizing  and  approving  of  this  purchase. 
But  on  the  18th  of  the  same  month  the  warehouses  in  which  the  rum 
was  accidentally  caught  fire,  and  by  means  of  a  quantity  of  gunpowder 
lodo-ed  in  them  were  blown  into  the  air  with  a  tremendous  explosion. 
There  was  no  evidence  of  the  deposit  bemg  paid. 

Garroic,  for  the  defendants,  stated  two  grounds  on  which  he  con- 
tended his  clients  were  not  liable.  1.  The  contract  was  void  under 
the  Statute  of  Frauds.  The  only  Avay  in  Avhich  it  could  be  pretended 
the  17th  section  had  l)een  satisfied  was  by  a  memorandum  in  Avriting. 
But  it  Avould  be  difficult  to  say  that  under  the  circumstances  of  this 
case  the  auctioneer  was  the  authorized  agent  of  the  defendants ;  and 
even  if  he  were,  wiiting  the  letters  "J.  M.  F."  in  the  printed  catalogue 
could  not  be  considered  as  any  memorandum  of  the  contract  between 
the  parties.  Until  the  expiration  of  the  thirty  days  the  goods  remained 
at  the  risk  of  the  sellers.  They  were  not  to  be  paid  for  or  delivered 
before  then,  and  the  property  did  not  absolutely  vest  in  the  purchaser. 
The  stipulation,  as  to  the  paying  of  warehouse  rent  afterwards, 
shewed  that  till  that  time  the  goods  were  still  considered  as  belonging 
to  the  vendors,  subject  to  the  right  of  the  purchaser  upon  fulfilling  his 
part  of  the  contract.     But 

Lord  Ellexbokougu  held  that  the  initials  of  the  defendants'  agent 
written  by  the  auctioneer  in  the  catalogue,  coupled  with  their  letter 
recognizing  the  sale,  constituted  a  sufficient  memorandum  in  Avriting 
to  satisfy  the  Statute  of  Frauds ;  and  that  the  property  vested  abso- 
lutely in  the  purchasers  from  the  moment  of  the  sale,  the  agreement  to 
give  stowage  room  to  the  goods  free  of  expense  for  thirty  days  being 
introduced  for  their  benefit,  and  being  part  of  the  consideration  for 
which  the  pm'chase-money  was  to  be  paid. 

Verdict  for  the  plaintifs. 


348  HEYMAN  V.   NEALE.  [CHAP.  I. 

WRIGHT  V.  DANNAH. 
At  Guildhall,  coram  Lord- Ellenborough,  July  4,1809. 

[Reported  in  2  Campbell,  203.] 

Goods  bargained  and  sold.     Plea,  the  general  issue. 

The  action  was  brought  for  the  value  of  four  sacks  of  clover-seed. 
The  parties  having  met  on  the  Corn  Exchange  in  London  entered  into 
a  negotiation  for  the  sale  of  this  seed ;  and  after  they  had  agreed  on  the 
price,  the  plaintiff  wrote  the  following  memorandum  of  the  contract :  — 

Robert  Dannah,  Windley,  near  Derby. 
4  sacks  clover-seed,  at  £6  18s. 
Per  Fly  Boat. 

After  the  plaintiff  had  written  this  memorandum,  the  defendant,  who 
overlooked  him  while  he  wrote  it,  desired  him  to  alter  the  figures 
18  to  16,  —  £6  16s.  being  the  price  agreed  on.  This  the  plaintiff 
accordingly  did.  They  then  parted,  the  memorandum  being  left  with 
the  defendant. 

I'ark  objected  that  this  was  not  a  sufficient  memorandum  within  the 
Statute  of  Frauds,  not  being  signed  by  the  party  to  be  charged  by  it 
or  his  authorized  agent. 

Garroio  and  Puller,  contra,  submitted  that  the  defendant  had  made 
the  plaintiff  his  agent  for  the  purpose  of  signing  the  memorandum  by 
overlooking  and  approving  of  what  he  had  written ;  and  they  put  the 
case  of  a  man  incapable,  from  disease  or  ignorance,  of  writing  for  him- 
self. 

Lord  Ellenborough  said  the  agent  must  be  some  third  person,  and 
could  not  be  the  other  contracting  party. 

Plaintiff  nonsuited. 


HEYMAN  V.  NEALE. 

At  Nisi  Prius,  coram  Lord  Ellenborough,  December  21,  1809. 

[Reported  in  2  Campbell,  337.] 

This  was  an  action  for  not  accepting  a  quantity  of  hemp. 
The   question  was,  whether  there  had  been  a   complete   contract 
between  the  parties  upon  this  subject. 


SECT.    VI.]  HEYMAN   V.   NEALE.  349 

Mr.  Forrester  the  broker  swore  th:it  he  had  authority  from  the 
plaintiff  to  sell  and  from  the  defendant  to  buy  the  hemp  in  question 
for  the  one  and  the  other  respectively ;  that  he  in  consequence  made 
an  entry  in  his  book  of  having  sold  it  for  the  plaintiff  to  the  defend- 
ant ;  that  he  then  sent  a  copy  of  this  entry  to  each  of  the  parties ; 
and  that  when  he  next  saw  the  defendant  the  latter  objected  to  the 
terms  of  the  bought  note,  and  said  he  would  not  be  bound  by  it.  The 
witness  added  that  he  conceived  he  was  authoiized  to  buy  the  hemp 
for  the  defendant  on  the  terms  mentioned  in  the  sale-book. 

Park  contended  that  the  bought  and  sold  notes  Avere  only  sent  on 
approbation,  and  the  contract  was  not  complete  till  they  were  agreed 
to  by  the  parties ;  that  though  consent  might  be  inferred  fi-om  no  ob- 
jection being  taken,  either  party  might  disaffii-m  the  contract  by  giving 
immediate  notice  of  his  dissent ;  that  the  broker  was  vested  with  pow- 
ers merely  to  propose  the  conditions  of  the  bargain,  but  not  finally  to 
conclude  it ;  and  that,  as  the  defendant  had  taken  the  earliest  oppor- 
tunity of  informing  Mr.  Forrester  that  he  was  dissatisfied  with  the 
bought  note,  the  present  action  could  not  be  sustained. 

Lord  Ellenborough.  After  the  broker  has  entered  the  contract 
in  his  book,  I  am  of  opinion  that  neither  party  can  recede  fi:om  it. 
The  bought  and  sold  note  is  not  sent  on  approbation,  nor  does  it  con- 
stitute the  contract.  The  entry  made  and  signed  by  the  broker,  who 
is  the  agent  of  both  parties,  is  alone  the  binding  contract.  What  is 
called  the  bought  and  sold  note  is  only  a  coj^y  of  the  other,  which 
would  be  valid  and  binding  although  no  bought  or  sold  note  was  ever 
sent  to  the  vendor  or  purchaser.  The  defendant  is  equally  liable  in 
this  case  as  if  he  had  signed  the  entry  in  the  broker's  book  with  his 
own  hand. 

It  afterwards  appeared  that  the  hemp  was  not  of  the  quality  specified 
in  the  contract,  and  the  plaintiff  submitted  to  be  nonsuited.^ 

1  The  authority  of  the  broker  may  be  countermanded  at  any  time  before  a  memo- 
randum of  the  contract  of  sale  is  written  and  signed  by  him  pursuant  to  the  Statute 
of  Frauds,  although  he  has  previously  entered  into  a  verbal  agreement  to  sell  the 
goods. 

Farmer  v.  Robinson,  cor.  Lord  Ellenborough,  Guildhall,  July  22,  1805.  Action  for 
not  delivering  a  quantity  of  brimstone.  The  defendant  had  authorized  a  broker  to 
sell  some  brimstone  for  him  at  a -certain  price,  and  the  broker  had  accordingl}'  agreed 
to  sell  it  to  the  plaintiff  at  that  price ;  but  before  the  sale-note  was  made  out  the 
defendant  countermanded  the  authority  of  the  broker,  and  said  that  plaintiff  should 
not  have  the  goods.  Lord  Ellenborough  held  that  under  these  circumstances  the 
contract  could  not  be  enforced. 


350  ALLEN  V.    BENNET.  [CHAP.  I. 

ALLEN  V.   BENNET. 
In  the  Common  Pleas,  July  4,  1810. 

[Reported  in  3  Taunton,  169.] 

This  was  an  action  of  assumpsit.  The  first  count  of  the  declaration 
was  for  not  delivering  to  the  plaintiff  a  parcel  of  rice :  the  second  and 
third  counts  were  upon  the  non-delivery  of  two  several  quantities  of 
tobacco  to  the  amount  of  many  hundred  pounds,  pursuant  to  a  con- 
tract made  by  the  defendant's  agent  with  the  plaintiff.  Upon  tlie  trial 
of  the  cause  at  the  Warwick  spring  assizes,  1810,  before  Bayley,  J.,  it 
appeared  that  the  defendant's  agent  had  written  certain  orders  in  a 
book,  the  property  of  the  plaintiff,  the  first  of  which  was,  "  Ordered  of 
H.  &  G.  Bennet,  Liveqjool,  50  ban-els  fine  new  rice,  33s.  2  months  and 
2  months,  as  per  sample,  in  running  numbers.  W.  Wright,  August  23, 
1809."  Under  this  order  had  been  written  the  following  words :  "  This 
order  to  be  executed  if  Mr.  Allen  does  not  hear  from  Bennet  from  Liv- 
erpool by  Saturday ; "  but  these  words  were  afterwards  struck  out,  in 
consequence,  as  it  apj^eared,  of  a  letter  of  Bennets  to  Wright,  dated 
28th  August,  in  which  they  authorized  him  to  give  Allen  2  and  2 
months,  and  said  that  in  order  to  have  no  disputes  about  quality  they 
had  sent  him  an  average  sample  of  the  rice  in  hand :  he  should  let  Mr. 
Allen  see  it,  and  if  not  approved  he  was  welcome  to  relinquish  the 
transaction.  It  was  in  consequence  of  the  same  letter  that  the  words 
"  2  months  and  2  months  "  were  inserted  in  the  order,  for  which  words  a 
blank  space  Avas  left  on  the  23d  of  August,  when  the  entry  was  origi- 
nally made.  The  second  order  was,  "  From  H.  &  G.  Bennet,  Liver- 
pool, 12  cwt.  fine  shag  tobacco  "  (and  other  quantities  of  different  sj^ec- 
ified  sorts),  "  at  3s.  8(7. ;  Id.  per  pound  discount :  bill  in  2  months  at  — 
months.  W.  Wright,  Sept.  11, 1809."  The  third  order  was,  "  H.  &  G. 
Bennet,  Liverpool,  8  cwt.  fine  shag  tobacco,  3s.  8c7. ;  2d.  per  jDound  dis- 
count: bill  in  2  months  at  2  months.  W.Wright,  Sept.  12,  1809." 
The  book  in  which  these  orders  were  written  was  not  ordinarily  used 
as  an  order-book ;  it  had  no  title,  but  was  a  sort  of  waste  book,  con- 
taining various  memoranda  of  different  natures;  and  the  plaintiff's 
name  was  not  found  written  upon  or  in  any  part  of  the  book  from  the 
beginning  to  the  end.  There  was  no  evidence  that  the  plaintiff  had 
signed  any  contract  or  j^ajier  to  bind  himself.  The  defendants  hesi- 
tated to  execute  the  order ;  and  thereupon  some  correspondence  took 
place  between  the  parties,  in  the  course  of  which  the  plaintiff  on  the 
23d  of  September  wrote  a  letter  to  the  defendants,  wherein,  after  giv- 
ing them  references  as  to  his  credit,  he  added,  "  The  eight  hundred 
weight  of  fine  shag  tobacco  I  wish  immediately  forwarded,  as  I  have 


SECT.    VI.]  ALLEN   V.    BENNET.  351 

sold  it  and  it  is  wanted.  I  likewise  want  the  invoice  of  the  rice  and 
the  other  tobacco."  It  was  objected  for  the  defendant  that  this  was 
not  within  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  §  17,  a  sufficient  note 
in  writing  for  the  sale  of  these  goods,  inasmuch  as  it  did  not  at  all 
apj^ear  by  the  contract  who  was  the  buyer :  all  that  could  be  gathered 
from  the  entries  was,  that  they  were  contracts  entered  into  by  Bennet 
to  sell  goods  to  persons  not  named,  and  who  those  persons  were  could 
not  be  sujjplied  by  parol  evidence.  Bayley,  J.,  recollected  the  case  of 
Egerton  v.  Mathews,  G  East,  307 ;  and  inasmuch  as  the  merits  were 
with  the  plaintiff",  at  least  as  to  the  rice,  he  refused  to  nonsuit  him,  but 
reserved  the  point,  subject  to  which  the  jury  found  a  verdict  for  the 
plaintiff"  for  £130.  Tlie  learned  judge  aftei-wards  expressed  his  regret 
that  he  had  not  recommended  to  the  parties  that  the  plaintiff"  should 
remit  something  of  the  damages  and  the  defendants  pay  the  residue, 
instead  of  their  fighting  the  point. 

Shepherd.,  Serjt.,  in  Easter  term,  1810,  accordingly  moved  for  a  rule 
nisi  upon  the  authority  of  Champion  v.  Plummer,  1  New  Rep.  252. 
In  the  case  of  Egerton  v.  Mathews,  6  East,  307,  where  the  Court  of 
King's  Bench  held  a  memorandum  signed  by  the  buyer  only  sufficient, 
it  appeared  by  the  contract  who  the  seller  was  to  be,  which  ingredient 
is  here  wanting,  as  it  also  was  in  the  case  of  Chamijion  v.  Plummer, 
which  was  therefore  distinguishable.  With  respect  to  the  cases  of  con- 
tracts for  the  purchase  of  an  interest  in  land,  which  will  be  cited,  where 
a  signature  by  one  jiarty  has  been  held  sufficient,  as  in  Seton  v.  Slade, 
7  Ves.  275,  it  is  observable  that  the  4th  section  requires  only  a  note  in 
writing  signed  by  the  party.  Upon  the  17th  clause  it  was  essential 
that  the  names  of  both  the  contracting  parties  should  appear  on  the 
contract.  He  also  made  a  second  point,  that  the  declaration  alleged 
that  the  rice  was  to  be  paid  for  in  two  months  from  the  date  of  the 
invoice :  whereas  the  true  construction  of  the  order  was,  that  it  was  to 
be  paid  for  in  two  montjis  from  the  delivery ;  and  the  diff"erence  was 
material,  for  the  seller  might  send  his  invoice  immediately,  yet  j^rotract 
the  delivery,  and  so  imj^roperly  accelerate  the  pajnnent  even  to  the  day 
of  delivery.  [JVIaj^sfield,  C.  J.  No  doubt  the  two  months  would  be 
explained  by  any  merchant  to  be  computed  fi-om  the  date  of  the  deliv- 
ery.] There  was  a  further  objection  to  the  coiint  on  the  second  con- 
tract, that  the  declaration  alleged  it  was  to  be  paid  by  a  bill  at  — 
months,  which  was  too  uncertain,  and  the  niunber  of  months  agreed 
on  could  not  be  supj^lied  by  j^arol  evidence.  The  court  granted  a  rule 
nisi  on  all  the  points. 

Best  and  Vmighan,  Serjts.,  in  this  term  shewed  cause.  They  relied 
on  the  plaintiff''s  letter  of  the  23d  of  September  as  evidence  that  the 
plaintiff'  was  a  party  to  the  contract,  inasmuch  as  it  referred  to  tlie  iden- 
tical order  for  8  cwt.  entered  in  the  book.  [Majtsfield,  C.  J.  The  objec- 
,tion  is  not  that  there  is  no  assent  of  the  plaintiff",  but  that  it  does  not 


852  ALLEN   V.   BENNET.  [CHAP.   I. 

appear  by  the  memorandum  who  the  buyer  was.]  It  is  not  necessary 
that  the  contract  should  express  either  who  the  buyer  was  or  who  the 
seller  was :  it  is  sufficient  if  there  be  a  memorandum  or  note  in  writing 
signed  by  the  parties  to  be  charged ;  but  if  it  be  necessary  to  prove  by 
writing  who  was  the  buyer,  it  is  proved  by  the  correspondence.  The 
Legislature  knowing  the  hurry  of  commercial  dealings  directed  that  it 
should  be  sufficient  if  there  were  any  memorandum  signed  by  the  par- 
ties to  be  charged.  And  here  the  parties  whom  the  plaintiff  seeks  to 
charge  have  by  their  agent  signed  a  memorandum  for  the  sale  of  the 
goods.  Egerton  v.  Mathews  is  decisive  on  this  point.  There  was  no 
signature  in  that  memorandum  to  bind  Egerton ;  and  though  it  is  true 
that  Egerton  was  there  named  and  the  plaintiff  here  is  not  named,  yet 
the  writing  these  contracts  in  the  plaintiff's  book  is  at  least  equivalent 
to  the  naming  him  in  that  case ;  and  Lord  Ellenborough,  C.  J.,  there 
decided  that  it  sufficed  if  the  memorandum  were  signed  with  the  name 
of  the  party  to  be  charged  therewith.  [Lawrence,  J.  If  the  plain- 
tiff's name  had  been  in  this  book,  I  suppose  there  would  have  been  no 
doubt  about  it ;  and  that  brings  it  to  the  case  of  Champion  v.  Plummer.] 
To  make  this  case  parallel  to  that  of  Egerton  v.  Mathews  it  is  only 
requisite  that  there  be  some  writing  signed  by  the  defendant,  introduc- 
ing the  name  of  the  plaintiff;  and  this  name  is  found  in  the  defendant's 
letter  of  the  28th  August  to  their  agent  Wright.  In  the  case  of 
Saunderson  v.  Jackson,  2  Bos.  &  Pull.  238,  the  name  of  the  buyer  is  not 
at  first  inserted  in  the  contract,  but  a  letter  is  found  referring  to  it, 
which  was  admitted ;  and  it  is  only  necessary  to  do  here  the  same  thing 
which  was  done  in  that  case ;  to  connect  together  the  two  papers  which 
refer  to  each  other. 

Shepherd,  contra.  The  case  is  now  put  upon  a  wholly  different 
ground  from  that  which  it  assumed  at  the  trial,  whereon  these  letters 
were  produced,  not  for  the  purpose  of  eking  out  the  evidence  of  the 
contract  under  the  Statute  of  Frauds,  but  to  prove  the  authority  from 
the  defendants  to  Wright  to  make  the  contract  for  them,  which  was 
then  disputed,  but  which  the  jury  distinctly  found  to  have  been  given. 
Saunderson  v.  Jackson  was  not  decided  on  the  ground  that  another 
letter  could  be  connected  with  the  contract :  the  only  question  there 
was,  whether  there  was  a  sufficient  signature  of  the  sellers ;  and  it 
was  argued  for  the  buyers,  that  whether  the  seller's  name  were  printed 
or  written,  whether  it  were  put  at  the  top  or  the  bottom  of  the  paper, 
was  immaterial ;  and  it  was  merely  decided  that  there  was  a  sufficient 
signature  by  the  seller  to  satisfy  the  statute.  The  point  now  in  question 
was  never  there  mooted.  [M.vnsfield,  C.  J.,  and  Lawrence,  J.  The 
case  decided  thus  much,  that,  supposing  the  name  printed  upon  the  bill 
of  parcels  would  not  suffice,  the  name  might  be  supplied  from  the  let- 
ter sent  by  the  sellers.  Mansfield,  C.  J.  If  the  signature  of  one 
of  the  contracting  parties  might  be  supplied  by  a  letter  written  by  him, 


SECT.   VI.]  ALLEN   V.    BENNET.  353 

a  fortiori  may  a  letter  be  used  to  sIioav  who  the  buyer  is,  that  buyer 
not  being  the  party  sought  to  be  charged.  There  have  been  many 
cases  in  chancery,  some  of  which  I  think  have  been  earned  too  far, 
where  the  court  has  ])icked  out  a  contract  fi-om  letters  in  which  the 
parties  never  certainly  contemjilated  that  a  complete  contract  was  con- 
tained. "Where  a  broker  is  introduced,  tlie  signature  of  the  broker  is 
the  signature  both  of  the  buyer  and  of  the  seller ;  but  this  is  not  such 
a  signature.  This  letter  of  the  28th  of  August  gives  permission  that 
the  ])laintiif  might  take  or  relinquish  the  transaction,  just  as  he 
pleased.  What  transaction?  A  purchase  of  the  rice  to  be  sure!] 
There  is  another  material  point.  A  promise  made  in  writing  to  satisfy 
the  Statute  of  Frauds,  if  made  -svathout  consideration,  is-  not  more 
binding  than  a  parol  promise  without  consideration,  made  in  a  case  that 
does  not  require  writing.  [Heath,  J.,  ace]  If  there  be  a  binding 
promise  on  one  side,  it  is  a  good  consideration  for  a  promise  on  the 
other  side  ;  but  in  this  case  there  is  no  .signature  by  the  plaintiff  upon 
which  he  coidd  be  charged,  if  the  defendants  had  occasion  to  sue  on 
the  contract ;  and  if  that  be  so,  then  there  is  no  consideration  for  the 
promise  of  the  defendants  upon  which  the  plaintiff  now  seeks  to 
charge  them.  How  can  the  Statute  of  Frauds  so  operate  as  to  make 
the  written  promise  on  one  side  valid,  when  it  destroys  the  consid- 
eration for  that  promise  and  (which  at  common  law  would  have  been 
a  good  consideration)  the  vaUdity  of  the  jjromise  on  the  other  side  to 
buy  the  goods  ?  [Maxsfield,  C.  J.  No  such  objection  was  ever  taken 
in  the  case  of  Champion  v.  Plummer :  it  was  there  taken  for  gi-anted 
that  there  was  a  good  consideration  for  the  promise,  if  there  was  a 
signature  in  writing;  and  the  words  of  the  statute  seem  strongly  to  coun- 
tenance such  an  inteqiretation,  "  signed  by  the  parties  to  be  charged 
therewith."]  The  words  are,  "  signed  by  the  parties  to  be  charged  by 
such  contract ; "  and  without  a  consideration  there  cannot  be  a  sim- 
ple contract.  Again,  even  if  the  contract  may  be  supplied  by  subse- 
quent writings,  yet  it  cannot  be  eked  out  by  parol  evidence.  The 
declaration  for  the  rice  alleges  a  contract  for  payment  at  two  months, 
and  two  months  from  the  date  of  the  invoice ;  and  there  is  no  evi- 
dence in  \vTiting  that  the  time  of  the  payment  was  to  be  computed 
fi'om  the  date  of  the  iuA'oice.  [  Vauglmn  objecting  that  this  defence 
had  never  been  made  at  the  trial,  the  court  were  unanimous  that  it  could 
not  now  be  taken.] 

Maxspield,  C.  J.  To  be  sure  this  case  at  first  sight  comes  near  to 
the  case  of  Champion  v.  Plummer;  and  the  objection  certainly  there 
was,  that  the  memorandum  was  not  signed  by  the  purchaser :  that  was 
a  note  made  in  what  the  report  calls  a  common  memorandum  book; 
this  book  certainly  was  not  like  what  I  at  first  apprehended  it  to  be, 
until  it  was  produced ;  for  I  at  first  thought  this  had  been  an  order- 
book,  with  several  orders  signed  by  tlie  pei'sons  who  ordered  them ;  and 
VOL.  I.  23 


354  ALLEN   V.   BENNET.  [CHAP.   I. 

I  thought  that  where  such  an  order  was  inserted  in  a  regular  order-book, 
and  supposing  that  the  person  to  whom  it  belonged,  the  place  in  which 
it  was  kept,  and  the  purpose  for  which  it  was  employed,  were  conso- 
nant, it  would  in  that  case  be  no  great  sti-etch  to  say  this  was  a 
ground  for  infemng  that  these  entries  were  made  by  the  authority  of 
the  owner  of  the  book  for  the  purpose  of  evidencing  the  sale.     But 
in  this  book,  though  not  appropriated  to  the  entering  of  orders,  Wright 
writes  as  Bennet's  agent.     The  defendants'  counsel  distinguishes  be- 
tween an  order  and  an  agreement  to  buy;  but  if  I  go  to  a  shop  and 
order  goods,  do  I  not  agree  to  buy  them?     The  objection  is,  that  the 
name  of  the  buyer  does  not  appear  in  this  book ;  but  if  it  sufficiently 
appears  that  a  sale  was  agreed  on,  I  see  no  objection  why  it  should 
not  be  made  out  what  was  the  name  of  the  buyer  by  the  writing  of 
these  very  defendants.     In  the  first  place,  in  this  very  letter  wherein 
they  give  the  time  of  payment  of  two  months  and  two  months,  which 
is  afterwards  found  in  this  very  book,  the  buyer's  name  is  twice  men- 
tioned ;   and  in  that  letter  they  give  him   liberty  to   relinquish  the 
transaction.    It  is  in  wi'iting,  and  it  is  [so]  evidently  connected  with  the 
contract  that  no  doubt  it  may  be  coupled  with  the  order  in  that  order- 
book  ;  and  a  valid  contract  may  be  established  by  the  evidence  of  sev- 
eral writings,  as  we  often  see  at  nisiprius.    It  was  then  objected  that 
one  party  who  has  not  signed  is  not  bound ;  but  the  fact  was  the  same 
in  the  cases  of  Egerton  v.  Mathews  and  Champion  v.  Plummer,  and 
the  objection  was  never  taken  in  either  of  these  cases;  but  the  whole 
of  this  case  suj)poses  that  the  plaintiff  had  agreed ;   suppose  he  has 
not  contracted  by  wiiting,  he  has  by  parol,  and  he  is  bound  in  honor ; 
and  it  has  never  yet  been  decided  that  an  obligation  in  honor  would 
not  be  a  good  consideration.    All  these  cases  —  Egerton  v.  Mathews, 
Saunderson  v.  Jackson,  and  Champion  v.  Plummer  —  suppose  a  signa- 
ture by  a  seller  to  be  sufficient ;  and  every  one  knows  it  is  the  daily 
practice  of  the  court  of  chancery  to  establish  contracts  signed  by  one 
person  only,  and  yet  a  court  of  equity  can  no  more  dispense  with  the 
Statute  of  Frauds  than  a  court  of  law  can :  there  is  no  reason  there- 
fore to  set  aside  the  verdict,  and  the  rule  must  be  discharged. 

Heath,  J.,  was  of  the  same  opinion ;  and  there  is  a  case  in  Strange  ^ 
by  which  it  appears  that  a  voidable  promise  is  a  sufficient  consideration 
for  a  i^romise. 

Laweence,  J.  It  is  sufficiently  e\ddent  that  this  contract  was 
entered  into  by  the  authority  of  the  defendants.  It  is  stipulated,  "  this 
order  to  be  executed  if  Mr.  Allen  does  not  hear  from  Bennet  from  Liv- 
erpool by  Saturday."  A  letter  comes,  and  the  conditional  parts  of  the 
order  are  struck  out,  and  other  terms  of  the  time  of  payment  are 
added :  can  you  then  say  that  this  entry  is  not  made  by  the  authority  of 

1  Qucere,  whether  Barjeau  v.  Walmesley,  Str.  1249,  be  here  meant.  [Qucere,  whether 
Holt  V.  Ward  Clarencieux,  2  Strange,  937,  be  not  meant.  — Ed.] 


SECT.    VI.]  COOPER   V.   SMITH.  355 

the  plaintiff,  when  he  writes  to  the  defendants  on  the  23d  of  Septem- 
ber insisting  on  the  j^crformance  of  the  contract?  Then  as  to  the 
want  of  consideration,  that  objection  Avould  quite  ovei'tuiTi  the  cases  of 
Egerton  v.  Mathews,  Saunderson  v.  Jackson,  and  Cliampion  v.  Plum- 
mer;  and  the  Statute  of  Frauds  clearly  supposes  tlie  probability  of 
there  being  a  signature  by  one  person  only :  it  speaks  indeed  of  the 
buyer  accepting  a  part  of  the  goods,  as  contemplating  that  the  buyer 
would  be  thereby  bound;  but  the  statute  seems  to  be  made  chiefly 
for  the  security  of  buyers.  Hide  discharged. 


COOPER  V.   SMITH. 
In  the  King's  Bench,  February  6,  1812. 

\Reported  in  15  East,  103.] 

This  was  an  action  for  goods  sold  and  delivered,  which  was  tried 
before  Le  Blanc,  J.,  at  Worcester ;  and  the  question  was,  Avhcther 
there  was  sufficient  evidence  given  of  a  contract  in  order  to  bind  the 
defendant  Avithin  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  §  17.  The 
evidence  was  of  an  entry  in  the  order-book  of  the  plaintiff's  rider, 
who  was  employed  by  him  in  taking  orders  for  flour  from  his  difterent 
customers,  which  entry  was  dated  the  "  19th  Febi'uary,  1811,"  and 
ran  thus:  "Of  John  Smith,  £64  Os.  Of/."  (This  was  explained  by 
testimony  to  mean  so  much  money  received  of  the  defendant  in 
satisfaction  of  a  former  order.)  And  then  followed:  "Do.  40  of 
3.  —  58s."  (which  was  explained  to  mean  a  new  order  for  40  sacks 
of  flour,  called  thirds,  at  58s.  a  sack).  There  was  no  signature  of 
either  of  the  parties  or  of  the  witness  who  made  the  entry;  but  he 
proved  at  the  trial  that  after  he  had  taken  down  the  order  in  his 
book  the  defendant  desired  him  to  read  it  over  to  him,  which  the 
witness  did.  He  then  proved  that  the  flour  was  forwarded  to  Pitch- 
fork's wharf  at  Tutbury,  for  the  defendant,  on  the  6th  of  March. 
And  then  a  letter  Avas  i)roved  which  had  been  sent  from  the  defendant 
to  the  plaintiff"  on  the  8th  of  March,  1811,  when  it  bore  date,  at  which 
time  the  flour  had  not  reached  the  defendant.  The  letter  was  as  fol- 
lows :  — 

Mr.  Cooper. 

Sir, — Your  not  cominj;  or  sending  tlie  flour  I  agreed  with  you  for  according 
to  time,  I  am  now  provided  for ;  therefore  it  will  not  suit  me  to  receive  yours,  as 
the  price  is  lower.  I  have  been  offered  flour  a  great  deal  lower  this  day.  I 
expected  \ours  in  the  course  of  a  week  from  the  time  you  were  at  my  house.  If 
I  buy  of  any  man  I  expect  it  according  to  time,  or  the  bargain  is  void. 

(Signed  by  the  defendant. 


356  COOPER  V.   SMITH.  [CHAP.   I. 

In  answer  to  this  a  letter  was  sent  by  the  plaintiff,  dated  — 

TuTBUEY  Mill,  March  21st,  1811. 
Sm,  — The  40  sacks  of  flour  my  brother  sold  you  I  understand  you  have 
refused  to  receive,  on  the  score  of  its  being  out  of  time,  which  circumstance 
remains  to  be  proved,  and  which  I  shall  put  to  the  test.  However,  I  beg  to 
inform  you  that  the  flour  is  now  at  Pitchfork's  wharf  and  at  your  risk ;  and  when 
the  payment  becomes  due  we  will  see  how  the  matter  stands. 

(Signed  by  the  plaintiff.) 

There  was  further  proof  of  an  invoice  sent  by  the  plaintiff  to  the 

defendant :  — 

Ttjtbury,  March  5th,  1811. 

Mr.  J.  Smith 

Bought  of  G.  Cooper 

40  sacks  of  3ds 58s.      £116     Os.  Od. 

40  sacks 6s.  10    0     0 

£126     Os.  Od. 


Accompanied    by    a    note    from    Cooper's    clerk,   addressed    to   the 
defendant :  — 

Sir,  —  The  above  was  yesterday  forwarded  per  Smith  and  Son's  boat,  which  I 
have  no  doubt  will  be  with  you  very  soon. 

There  was  also  proof  of  demand  of  payment  by  the  plaintiff,  and 
refusal  by  the  defendant,  before  the  action  brought.  The  objection 
taken  was  that  this  was  not  a  good  bargain  to  bind  the  defendant 
within  the  Statute  of  Frauds,  the  memorandum  not  being  made  and 
signed  by  the  parties  to  be  charged  therewith  or  by  their  agents  law- 
fully authorized;  and  that  this  was  not  supplied  by  Smith's  letter, 
which,  though  it  admitted  a  bargain  made  for  flour,  yet  insisted  that 
it  was  to  be  delivered  within  a  week ;  and  that  he  had  rejected  it 
because  it  was  not  delivered  in  time.  The  fact  of  the  contract  as 
proved  by  the  plaintiff's  witness  being  left  to  the  jury,  they  found  for 
the  plaintiff;  but  the  question  of  law  was  reserved  by  the  learned 
judge. 

Jervis  moved  in  the  last  term  to  set  aside  the  verdict,  and  enter  a 
nonsuit  upon  the  objection  taken  at  the  trial ;  distinguishing  this  from 
the  case  of  Saunderson  v.  Jackson,^  where  the  name  of  the  vendor, 
who  was  the  defendant  in  the  action  for  non-delivery  of  the  goods, 
was  printed  in  the  bill  of  parcels  delivered  by  him  to  the  vendee  at 
the  time  of  the  order  given  for  them,  in  which  bill  of  parcels  the 
purchaser's  name  was  also  inserted,  ^  and  a  letter  was  afterwards  sent 
by  the  vendor  to  the  vendee  referring  to  the  order;  and  from 
Egerton  v.  Mathews,^  where  the  memorandum  of  sale  was  signed  by 
the  vendee  who  was  charged,  though  not  by  the  vendor  who  was  the 

1  2  Bos.  &  Pull.  238. 

2  This  was  stated  in  Champion  v.  Plummer,  1  New  Kep.  254. 
8  6  East,  307. 


SECT.    VI.]  COOPER   V.    SMITH.  357 

plaintiff' in  the  action ;  but  which  memorandum  contained  in  itself  the 
names  of  both  parties,  and  all  other  indicia  of  a  perfect  contract. 
Here,  he  observed,  the  seller's  name  was  not  mentioned  in  the  contract, 
which  in  that  and  other  respects  was  to  be  supplied  l)y  parol  evidence ; 
and  there  was  nothing  in  writing  on  the  part  of  the  purchaser  who 
was  to  be  charged,  except  the  subsequent  letter,  which  disaffirmed 
the  contract  as  proved  by  the  plaintiff's  agent:  the  case  therefore 
Btood  upon  the  original  memorandum,  which  not  being  evidence  to 
bind  the  seller  Avithin  the  statute  could  not  bind  the  purchaser.  And 
he  likened  this  to  the  case  of  Chamjnon  v.  Plummer,'  where  the 
memorandum  of  sale  not  mentioning  the  name  of  the  i)urchaser,  and 
signed  only  by  the  seller,  was  held  insufficient  to  bind  the  latter  in  an 
action  for  the  non-delivery  of  the  goods. 

The  court  upon  granting  the  rule  nisi  inquired  whether  the  order- 
book,  which  they  desired  to  see  when  the  cause  came  on  again,  pur- 
ported on  the  face  of  it  to  be  a  memorandum  book  of  the  orders 
received  by  the  plaintiff.  But  nothing  of  the  kind  appeared,  as  it 
was  afterwards  admitted;  and  therefore  the  case  stood  upon  the 
evidence  before  mentioned,  as  it  appeared  upon  the  learned  judge's 
report. 

Puller  now  shewed  cause  against  the  rule,  and  endeavored  to  shew 
that  the  plaintiff's  rider  who  took  the  order  was  the  agent  of  both 
parties,  adopted  by  the  defendant  at  the  time  by  his  makmg  him  read 
over  the  contract  to  him  immediately  after  it  was  written,  and  thereby 
assenting  to  his  agency  and  making  the  wi'itten  contract  his  own  ;  as 
in  the  case  of  a  broker,  who  though  employed  by  the  seller  has  been 
held  to  bind  the  buyer  also  by  the  writing  and  delivery  of  the  bought 
and  sold  notes  to  the  respective  parties  ;  which  was  first  admitted  by 
Lord  Kenyon  in  Rucker  v.  Cammeyer,'^  and  has  since  been  frequently 
recognized.  Though  he  admitted  that  in  Wright  v.  Daunah,^  where 
the  memorandum  was  written  by  the  seller  himself,  though  overlooked 
by  the  buyer  at  the  time,  who  made  him  alter  it  in  part,  Lord  Pollen- 
borough  did  not  consider  that  as  an  adoption  of  the  seller  by  the 
buyer  as  his  agent,  holding  it  necessary  that  the  agent  .to  be  so 
adopted  should  be  some  third  person,  and  not  one  of  the  contracting 
parties.  But  that  exception  does  not  apply  to  this  case.  He  also 
observed  upon  the  adoption  in  part  of  the  contract  by  the  letter  of  the 
defendant,  written  afterwards  (as  in  Saunderson  v.  Jackson) ;  and 
though  the  defendant  therein  insisted  upon  the  delivery  of  the  goods 
within  a  certain  time  as  a  term  in  the  contract,  which  did  not  appear 
to  have  been  done,  still  he  admitted  the  sale,  which  was  sufficient  to 
take  the  case  out  of  the  statute  ;  and  it  then  became  a  question  for 
the  jury  whether  the  delivery  was   in  time;   which  fact  they  had 

1  1  New  Rep.  252.        2  i  Esp.  N.  P.  Cas.  105.        3  2  Campb.  N.  P.  Cas.  203. 


358  CUFF  V.   PENN.  [CHAP.   I. 

found  for  the  plaintiff,  according  to  the  evidence  of  the  plaintiff's 
witness. 

Lord  Ellenborotjgh,  C.  J.  The  plaintiff  cannot  avail  himself  of 
that  letter  as  evidence  of  the  contract  for  one  purpose,  to  bind  the 
defendant  within  the  statute,  and  renounce  it  for  another  purpose,  but 
he  must  take  it  altogether ;  and  then  it  falsifies  the  contract  proved  by 
parol  testimony  for  the  plaintiff.  Here  there  was  neither  the  signature 
of  the  parties  nor  of  their  agent  to  bind  the  bargain. 

Le  Blanc,  J.  The  letter  of  the  defendant  referred  to  a  different 
contract  from  that  proved  on  the  part  of  the  plaintiff,  which  puts  him 
out  of  court,  instead  of  being  a  recognition  of  the  same  contract,  as  in 
a  former  case. 

Per  Curiam,^  HuU  absohite  to  enter  a  nonsuit. 


CUFF   AND   Others   v.   PENN, 
In  the  King's  Bench,  Januaey  25,  1813. 

[Reported  in  1  Maule  Sf  Sehvyn,  21.] 

In  an  action  of  assumpsit  for  not  accepting  a  quantity  of  bacon,  the 
case  was  this:  The  plaintiffs  having  offered  to  sell  the  defendant 
300  hogs  of  bacon,  the  defendant  on  the  10th  of  April,  1807,  wrote 
to  the  plaintiffs  the  following  letter :  — 

Messrs.  Cuff,  Dickinson,  and  Cuff, 

I  agree  to  accept  your  offer  of  300  hogs  of  bacon,  to  be  delivered  at  such 
times  and  in  such  quantities  as  mentioned  beneath,  at  69s.  per  cwt.,  each  parcel 
to  be  paid  for  at  two  months  after  delivery,  viz. :  — 

April  20th 25  hogs. 

May  10th 25  „ 

„     20th 25  „ 

June  10th 50  „ 

„     24:th 50  „ 

July  14th 50  „ 

„     24th  .     .     .  ■  .     .     .  50  „ 

Aug.  10th 25  „ 

300 

J.  Penn. 

On  the  21st  of  April  (and  not  on  the  20th  as  stipulated  in  the  con- 
tract) the  first  delivery  was  made ;  but  it  appeared  tlvit  the  defendant 

1  Bayley,  J.,  was  sitting  at  GuildhalL 


SECT.    VI.]  CUFF   V.   PENN.  359 

did  not  make  any  objection  on  that  ground.     After  the  third  delivery, 
viz.,   on   the   5th   of   Juno,    the    defendant   wrote   to   the    plaintiffs 
informing  them  that  he  should  want  the  next  delivery  of  hacon  as 
soon  as  it  could  be  got  ready.     On  the   10th  of  June  the  defendant 
attended    at    the    plaintiffs'    warehouse,    and    84    sides    were    then 
weighed  in  his  presence;    and   on   the  2d  of  July  he   again  called 
on  the  plaintiffs,  and  told  them  as  the  sale  of  bacon  was  very  dull 
he  hoped  that  they  would  not  pjess  it  on    him,  and  they  assured 
him   they   would   not :    84   sides  were  weighed  at  this  time,  and  a 
further  quantity  was  weighed  on  the  10th  of  July.     The  plaintiffs, 
having  forborne  to  deliver  any  more  bacon  for  some  time,  at  length 
informed  the  defendant  that  he  had  exceeded  a  reasonable  time,  and 
requested  him  to  name  a  time  for   delivery.      This   the   defendant 
declined,  observing  that  the  sales  were  very  dull.     Similar  applica- 
tions having  been  afterwards  made  to  the  defendant  witliout  effect, 
the  plaintiffs  on  the  28th  September  wrote  to  the  defendant  informing 
him  "  that  on  the  30th  instant  the  remainder  of  the  bacon  would  be 
weighed  at  their  warehouse,  and  that  he  might  see  it  weighed  if  he 
thought  proper ;  if  not,  they  should  weigh  it  off  and  deliver  it  to  him 
in  the  coui-se  of  that  day."     After  the   receipt   of  this    letter  the 
defendant  called  on  the  plaintiffs,  and  said  there  was  no  contract ;  to 
which  they  answered  that  they  had  his  handwriting  and  should  insist 
on  the  contract ;  the  defendant  replied  there  was  no  use  in  sending 
the  bacoti,  as  he  would  not  take  it.     On  the  30th  of  September  the 
remainder  of  the  bacon  was  weighed  and  sent  to  the  defendant's 
house,  but  he  refused  to  receive  it.     In  the  first  count  of  the  declara- 
tion the  contract  was  stated  according  to  the  terms  of  the  defendant's 
letter  of  the  10th  of  April ;  and  the  declaration  then  averred  that  the 
plaintiffs  delivered  a  part  of  the  bacon,  which  was  accepted  and  paid 
for  by  the  defendant  under    the  contract;    and    that    the   plaintiffs 
offered  to  deliver  the  residue,  but  the  defendant  would  not  accept 
the  same.     In  the  second  count,  after  setting  forth  the  contract  of  the 
10th  of  April,  it  was  averred  that  the  plaintiffs  had  delivered  a  certain 
quantity  of  bacon,  which  was  accepted  by  the  defendant ;  and  that 
the  plaintiffs  intended  and  were  about  to  deliver  the  residue  under 
the  contract,  but  the  defendant  on  the  2d  of  July,  1807,  discharged  the 
plaintiffs  from  such  delivery,  and  requested  them  not  to  deliver  any 
more  bacon  until  further  orders  from  the  defendant,  Avhich  the  plain- 
tiffs agreed  to  do ;  and  thereupon  in  consideration  of  the  premises, 
and  also  in  consideration  that  the  plaintiffs  had  agreed  to  deliver  the 
residue  of  the  bacon   according  to  such  orders  within  a  reasonable 
time,  the  defendant   promised  to  give    such   orders    and  accejjt  the 
residue  of  the  bacon  within  a  reasonable  time,  and  to  jiay  for  the  same 
according  to  the  terms  of  the  original  contract ;  that  on  the  30th  of 
September,  1807,  the  j^laintiffs  offered  to  deliver  the  residue,  which 


360  CUFF   V.   PENN.  [chap.    1. 

the  defendant  refused  to  accept.  The  thh-d  count  was  similar  to  the 
second,  except  that  it  stated  that  the  defendant  requested  the  plain- 
tiffs to  postpone  the  delivery  of  the  residue  of  the  bacon  for  a  reason- 
able time. 

At  the  trial  before  Lord  Ellenborough,  C.  J.,  at  the  London  sittings 
after  last  Trinity  term,  it  was  objected  on  the  part  of  the  defendant 
that  this  was  a  written  contract  for  the  sale  and  purchase  of  goods,  and 
could  not  be  varied  by  parol ;  but  if  the  subseqiaent  parol  agreement 
was  to  be  considered  not  as  varying  the  written  contract,  but  as  sub- 
stituting a  new  one  in  its  place,  then  it  was  void  by  the  Statute  of 
Frauds,  there  being  neither  a  part  acceptance  nor  a  part  payment 
under  it.  But  his  Lordship  was  of  opinion  that  this  was  a  dispensa- 
tion only  with  the  performance  of  the  original  contract  in  respect  of 
the  delivery  of  the  bacon  at  the  stipulated  times,  and  directed  the 
jury  to  find  a  verdict  for  plaintiffs,  with  liberty  to  the  defendant  to  move 
to  enter  a  nonsuit :  a  verdict  was  accordingly  given  for  the  plaintiffs 
upon  the  second  and  third  covmts  ;  and  Marryat  in  the  last  term  ob- 
tained a  rule  nisi  for  entering  a  nonsuit. 

The  Solicitor  -  General^  Park,  and  ZiUices,  now  shewed  cause,  and 
contended  that  the  Statute  of  Frauds  ^  only  required  that  the  contract 
of  sale  should  be  in  wi'iting,  not  that  the  contract  for  delivery  should 
be  so :  in  this  case  there  was  a  written  contract  of  sale,  and  the  post- 
ponement of  the  delivery  was  in  the  nature  only  of  an  enlargement  of 
the  time  for  performing  it.  In  Warren  v.  Stagg,^  cited  in  Littler  v. 
Holland,^  Buller,  J.,  held  that  an  agreement  to  extend  the  time  for  the 
performance  of  a  conti'act  was  not  a  waiver,  but  a  continuation  of  the 
original  contract ;  and  it  never  occun'ed  in  that  case  that  there  was 
any  necessity  for  written  evidence  of  such  agreement.  Here  the  dec- 
laration contains  counts  on  the  original  agreement,  as  well  as  on  the 
agreement  to  postpone  the  delivery  of  the  residue  of  the  bacon ;  and 
even  admitting  that  a  delivery  was  necessary  under  this  latter  agi^ee- 
ment  to  constitute  a  part  acceptance  within  the  terms  of  the  statute, 
the  weighing  out  the  84  sides  amounted  to  a  delivery :  it  would  have 
been  a  good  transfer  of  the  property  to  the  vendee  in  the  ordinary 
case  of  sale  and  purchase  ;  so  that  if  a  fire  bad  happened  afterwards, 
according  to  the  authority  of  Rugg  v.  JNIinett,*  the  loss  would  have 
fallen  on  the  purchaser. 

Marryat  and  Gurney,  contra.  The  second  class  of  counts  upon 
which  the  verdict  was  taken  cannot  be  sustained  under  the  Statute  of 
Frauds.  The  original  contract  was  an  entire  contract  as  to  price, 
quantity,  and  the  times  of  delivery ;  and  parol  e\idence  varying  the 
terms  of  the  contract  in  any  of  these  i-espects  ought  not  to  be  re- 
ceived.    It  would  be  as  dangerous  in  its  consequences  to  allow  parol 

1  29  Car.  2,  c.  3,  §  17.  23  t.  R.  591. 

3  3  T.  R.  591.  4  11  East,  210. 


SECT.   VI.]  CUFF  V.   PENN.  3G1 

terms  to  be  engrafted  on  a  written  contract  as  to  allow  a  parol  contract 
to  be  enforced  in  the  first  instance.  Parol  evidence,  offered  for  the  pur- 
pose of  connecting  two  written  instruments  not  having  an  immediate 
or  necessary  reference  to  each  other,  has  been  refused ;  ^  and  the  attempt 
in  the  present  case  goes  one  step  further  than  that,  for  it  is  an  attempt 
to  connect  by  parol  evidence  a  written  and  a  parol  contract.  In 
Powell  V.  Divett,^  Bayley,  J.,  said  that  "  without  a  wTitten  contract 
the  case  would  be  within  the  Statute  of  Frauds;  and  the  mischief 
would  be  the  same  if  parol  evidence  were  let  in  to  shew  how  much  of 
the  contract  was  good  and  how  much  bad."  The  time  of  delivery  in 
this  case  is  as  essential  as  the  price  or  the  quantity ;  for  there  is  a  greater 
demand  for  the  article  at  one  season  than  at  another.  Is  it  competent 
then  to  the  party  to  vary  the  time  by  parol  ?  This  would  let  in  all  the 
inconveniences  which  were  intended  to  be  obviated  by  the  Statute  of 
Frauds.  If  new  times  may  be  substituted,  so  may  new  prices  or  new 
quantities.  As  to  the  case  of  Warren  v.  Stagg,  no  question  was  there 
made  upon  the  Statute  of  Frauds :  the  only  question  was  whether  the 
contract  proved  was  different  fi'om  that  laid  in  the  declaration ;  and 
Littler  v.  Holland  is  contrary.  That  indeed  was  an  action  of  covenant ; 
but  Lord  Kenyon  there  cited  the  case  of  an  action  between  Garrick 
and  Barry,  where  the  court  held  that  articles  of  agreement,  which  did 
not  appear  to  be  under  seal,  could  not  be  dispensed  with  by  parol. 

Lord  Ellexborough,  C.  J.  I  think  this  case  has  been  argued  very 
much  on  a  misunderstanding  of  the  Statute  of  Frauds,  and  the  ques- 
tion has  been  embarrassed  by  confounding  two  subjects  quite  distinct 
in  their  nature ;  namely,  the  provisions  of  that  statute  and  the  rule 
of  law  whereby  a  party  is  precluded  fi'om  giving  parol  evidence  to  vary 
a  written  contract.  The  principal  design  of  the  Statute  of  Frauds  was 
that  parties  should  not  have  imposed  on  them  burdensome  contracts 
which  they  never  made,  and  be  fixed  with  goods  Avhich  they  never 
contemplated  to  purchase.  But  by  the  express  provisions  of  that  stat- 
ute it  is  only  necessary,  in  order  to  make  a  contract  for  a  sale  of  goods 
binding  upon  the  parties,  that  there  should  be  either  a  note  or  a  memo- 
randum of  the  bargain  in  writing ;  or  if  there  be  no  writing,  that  there 
should  be  a  part  payment  by  way  of  earnest  or  a  part  acceptance  of 
the  goods.  In  the  present  case  there  exist  two  indicia  pointed  out  by 
the  statute,  viz.,  a  contract  for  sale  in  writing  and  a  part  performance, 
so  that  not  only  the  literal  intention  but  the  spirit  also  of  the  statute 
is  satisfied.  The  objection  then  does  not  found  itself  upon  a  non- 
compliance with  the  provisions  of  that  statute,  but  is  more  properly 
this :  that  an  agreement  once  made  in  writing  cannot  be  varied  by 
parol.  If  this  agreement  had  been  varied  by  parol,  I  should  have 
thought  on  the  authority  of  Meres  v.  Ansell  ^  that  there  would  have 

1  Boydell  v.  Drummond,  11  East,  142.  2  15  East,  32. 

3  3  Wils.  275. 


362  SCHNEIDER   V.   NORRIS.  [CHAP.    I. 

been  strong  ground  for  the  objection.  But  here  what  has  been  done 
is  only  in  performance  of  the  original  contract.  It  is  admitted  that 
there  was  an  agreed  substitution  of  other  days  than  those  originally 
specified  for  its  performance :  still  the  contract  remains.  Suppose  a 
delivery  of  live  hogs  instead  of  the  bacon  had  been  substituted  and 
accepted,  might  not  that  have  been  given  in  evidence  as  accord  and 
satisfaction  ?  So  here  the  parties  have  chosen  to  take  a  substituted 
performance.  It  is  clear  that  neither  of  them  in  the  outset  thought  it 
necessary  to  stand  on  the  letter  of  the  agreement ;  for  the  first  deliv- 
ery was  to  have  taken  place  on  the  20th  of  April,  and  was  not  made 
until  the  21st,  and  yet  no  objection  was  then  taken.  Afterwards  a 
new  mode  of  delivery  is  substituted  at  the  defendant's  express  request. 
I  am  of  opinion  therefore  that  neither  has  the  Statute. of  Frauds  been 
trenched  upon,  nor  has  any  rule  of  law  respecting  parol  evidence  not 
being  admissible  to  vary  a  written  agreement  been  violated  in  this 
instance. 

Per  Curiam,  Hule  discharged. 


SCHNEIDER  anb  Another  v.  NORRIS.         ' 
In  the  King's   Bench,  January  25,   1814. 

[Reported  in  2  Maule  Sp  Selwyn,  286.] 

Case  for  the  non-delivery  of  cotton  yarn  pursuant  to  agreement. 
Plea,  general  issue. 

At  the  trial  before  Lord  Ellenborough,  C.  J.,  at  the  last  Lon- 
don sittings,  it  appeared  that  the  plaintiffs  on  the  24th  of  October, 
1812,  purchased  of  the  defendant,  who  was  employed  to  sell  on 
commission,  a  quantity  of  cotton  yarn,  of  which  a  bill  of  parcels  Avas 
sent  by  the  defendant  to  the  plaintiffs,  not  however  at  the  time  of 
the  contract,  and  at  what  precise  time  did  not  appear.  The  bill  of 
parcels  was  headed  thus:  "London,  24th  October,  1812.  Messi's. 
John  Schneider  &  Co.  bought  of  Thomas  Norris  &  Coi,  agents.  Cot- 
ton yarn  and  piece  goods.  No.  3,  Fi-eeman's  Court,  Cornhill,"  —  the 
whole  of  which  was  printed,  except  the  words  "  Messi'S.  John  Schnei- 
der &  Co.,"  which  were  in  the  handwriting  of  the  defendant.  Then 
followed  a  list  of  the  articles  sold,  ^vith  the  particulars  and  quantity, 
and  the  prices  annexed.  On  the  23d  of  December  the  plaintiffs 
demanded  the  yai'n  from  the  defendant,  who  refused  to  deliver  it, 
alleging  that  his  principal  had  declined  performing  the  contract.  It 
was  objected  upon  this  evidence  that  there  was  not  any  note  or 
memorandum  in  writing  of  the  bargain  as  required  by  the  Statute  of 


SECT.    VI.]  SCHNEIDER   V.    NORMS.  363 

Frauds ;  in  answer  to  Avliich  the  case  of  Saunderson  v.  Jackson  ^  was 
relied  on.  His  Lordship  overruled  the  objection,  and  thereupon  the 
plaintiifs  obtained  a  verdict. 

Topping  moved  to  set  aside  the  verdict  and  enter  a  nonsuit,  renew- 
ing his  objection ;  and  as  to  Saunderson  v.  Jackson,  he  said  besides 
the  printed  bill  of  parcels  there  was  a  letter  written  by  the  defendants 
in  that  case ;  and  therefore  the  court  agreed  that  although  the  letter, 
which  did  not  state  the  terms  of  the  agreement,  would   not   alone 
have   been   sufficient,   yet   as   the   jury   had   connected   it   with   the 
bill  of  parcels,  and  the  letter  was   signed   by  the   defendants,  there 
was  a  Avritten  note  or  memorandum  of  the  order  which  was  origin- 
ally given   by   the  plaintiff,  signed   by   the   defendants,  which   took 
the  case  out  of  the   Statute  of  Frauds.      In  this  case    there  is  no 
proof  of  any  signature  by  the  defendant,  and  the  statute  expressly 
requires  that  "some  note  or  memorandum  in  writing  be  made  and 
signed  by  the  parties  to  be  charged  or  their  agents."     The  term  "sign- 
ing" has  a  peculiar  and  appropriate  meaning,  and  may  be  defined  a  rati- 
fying by  writing ;  but  printing  is  not  equivalent  to  writing.     The  law 
distinguishes  in  many   cases  betAveen   matters  wiitten,  printed,   and 
enirrossed.     Thus  Lord  Coke,  in  his  comment  on  the  words  "except 
the  same  bargain  and  sale  be  made  in  writing,"  in  the  Statute  of  In- 
rolments,  27  H.  8,  c.  16,^  says :  "  It  must  be  by  writing,  and  not  by 
print  or  stamp."     So  the  statute  44  G.  3,  c.  98,  §  24,  distinguishes 
between  things  required  by  law  to  be  engrossed,  printed,  or  wiitten. 
Again  Lord  Coke  says :  "  A  deed  signifieth  an  instrument  in  writing ;  ® 
it  must  also  have  the  name  of  the  party  to  be  bound  by  it."     In  like 
manner  here  the  note  must  be  in  writing,  and  must  be  signed  by  the 
party  to  be  charged  or  by  his  agent ;  that  is,  his  own  name  must  be 
signed,  and  the  name  of  another  written  without  any  authority  is  not 
equivalent.     It  is  for  the  protection  of  the  party  to  be  charged  that 
a  signature   is   required,  and   therefore  no  substitution   ought  to  be 
allowed. 

Lord  ELLEXBOROUon,  C.  J.  I  cannot  but  think  that  a  construction 
which  went  the  length  of  holding  that  in  no  case  a  printing  or  any 
other  form  of  signature  could  be  substituted  in  lieu  of  Avriting  would 
be  going  a  great  way,  considering  how  many  instances  may  occm'  in 
which  the  parties  contracting  are  unable  to  sign.  If  indeed  this  case 
had  rested  merely  on  the  printed  name,  unrecognized  by  and  not 
brought  home  to  the  party  as  having  been  printed  by  him  or  by  his 
authority,  so  that  the  printed  name  had  been  unai)propriate(l  to  the 
particular  contract,  it  might  have  afforded  some  doubt  whether  it  would 
not  be  intrenching  upon  the  statute  to  have  admitted  it.  But  here 
there  is  a  signing  by  the  party  to  be  charged  by  words  recognizing  the 

1  2  B.  &  P.  238.     See  1  N.  R.  254,  per  Shepherd,  Serjt.,  arguendo. 

2  2  Inst.  672.  3  Co.  Lit.  171  6, 


864  THOENTON   V.    KEMPSTER.  [CHAP.    I. 

printed  name  as  mucli  as  if  he  had  subscribed  his  mark  to  it,  which  is 
strictly  the  meaning  of  signing,  and  by  that  the  party  has  incorporated 
and  avowed  the  thing  printed  to  be  his ;  and  it  is  the  same  in  substance 
as  if  he  had  written  Norris  &  Co.  with  his  own  hand.  He  has  by  his 
handwriting  in  effect  said,  I  acknowledge  what  I  have  written  to  be  for 
the  purpose  of  exhibiting  my  recognition  of  the  within  contract.  I 
entertained  the  same  ojiinion  at  the  trial,  and  cannot  say  that  it  has 
been  changed  by  the  argument.  It  appears  to  me  therefore  that  the 
printed  name  thus  recognized  is  a  signature  sufficient  to  take  this  case 
out  of  the  statute. 

Le  Blanc,  J.  Suppose  the  defendant  had  stamped  the  bill  of  par- 
cels with  his  own  name,  would  not  that  have  been  sufficient  ?  Such  a 
stamping  as  it  seems  to  me,  if  required  to  be  done  by  the  party  himself 
or  by  his  authority,  would  afford  the  same  protection  as  signing. 

Bayley,  J.  This  case  is  entirely  out  of  the  mischief  of  the  statute, 
the  object  of  which  was  to  protect  parties  from  being  bound  by  con- 
tracts unless  it  could  be  seen  that  the  terms  on  which  they  contracted 
were  under  their  signature.  Here  the  terms  of  this  contract  are  recog- 
nized by  the  defendant,  who  is  the  party  to  be  charged,  by  his  signing 
the  name  of  Schneider  &  Co.,  which  is  a  sufficient  signing  by  him  to 
recognize  that  they  had  bought  and  he  had  sold. 

Dampier,  J.  In  Saunderson  v.  Jackson  it  did  not  appear  that  there 
was  any  signature  to  the  bill  of  parcels  :  it  was  only  by  connecting  the 
letter  with  the  bill  of  parcels  that  the  case  was  taken  out  of  the  stat- 
ute. Here  there  is  the  handwriting  of  the  party  to  be  charged  to  the 
bill  of  parcels,  which  authenticates  it  as  a  memorandum  of  the  bargain. 
The  defendant  has  ratified  the  sale  to  Schneider  &  Co.  by  inserting 
their  name  as  buyer  to  a  paper  in  which  he  recognizes  himself  as  seller. 
That  is  sufficient  to  satisfy  the  object  of  the  statute. 

Hide  refused. 


THORNTON   akd   Others  v.  KEMPSTER. 

In  the   Common  Pleas,  November  22,  1814. 

[Repoi-ted  in  5  Taunton,  786.] 

The  plaintiffs  declared  upon  a  contract,  whereby  the  defendant 
agreed  to  purchase  of  them,  who  then  agreed  to  sell  to  the  defendant, 
a  certain  quantity,  to  wit,  10  tons  of  sound  and  merchantable  St.  Peters- 
burg clean  hemp,  ex  Annetta,  of  the  plaintiffs',  at  a  certain  price,  to  wit, 
£88  per  ton,  to  be  paid  for  as  therein  specified,  and  averred  a  breach  in 
the  defendant's  not  receiving  the  hemp  and  paying  for  it  accordingly. 


8ECT.    VI.]  THORNTON    V.    KEMPSTER.  365 

The  third  count  stated  a  contract  by  the  plaintiiFs  to  sell  to  tlie  defend- 
ant 10  other  tons  of  hemp  (not  specifying  the  quality),  and  a  similar 
breacli.  The  action  was  tried  at  the  London  sittings  after  Trinity  term, 
1814,  before  Gibbs,  C.  J.,  when  it  appeared  that  the  plaintiffs  Ijcing  pos- 
sessed of  a  quantity  of  Petersburg  clean  hemj)  employed  a  broker  to 
sell  it,  who  acted  as  broker  for  both  parties,  and  after  contracting  for 
the  sale  had  signed  and  delivered  to  the  defendant  a  sale-note  in  the 
following  terms :  "  Bought  for  account  of  the  defendant  from  the  plain- 
tiffs 10  tons  sound  and  merchantable  Riga  Rhine  hqmp,  ex  Annetta" 
and  subjoined  the  price  and  mode  of  payment.  But  he  delivered  to 
the  plaintiffs  a  sale-note,  stating  the  defendant  to  have  bought  of  the 
plaintiffs  10  tons  of  St.  Petersburg  clean  hemp  (subjoining  the  price 
and  terms),  ex  Annetta.  The  description  of  hemp  contained  in  the 
first-mentioned  note  was  inserted  by  mistake  of  the  broker,  and  desig- 
nated goods  of  a  materially  different  quality  fi'om  and  higher  value 
than  those  described  in  the  last.  It  was  first  objected  that  there  was  a 
variance  between  the  description  of  the  hemp  alleged  to  be  sold  in  the 
first  count  and  the  descrijition  contained  in  the  sale-note  delivered  to 
the  defendant ;  but  the  plaintiffs  being  enabled  by  their  third  count  to 
recover  upon  a  contract  for  the  sale  of  hemp  of  any  description,  it  was 
then  objected  that  there  was  no  contract  between  the  parties  for  the 
sale  of  any  hemp  whatever.  Gibbs,  C.  J.,  thought  that  there  was  no 
mutuality,  the  bi'oker  who  was  the  agent  of  both  having  done  nothing 
which  bound  both  parties  to  the  same  bargain ;  but  permitted  the  jury 
to  find  a  verdict  for  the  plaintiffs,  subject  to  the  point  reserved. 

Accordingly  Pell,  Serjt.,  in  this  term  obtained  a  rule  nisi  to  set  aside 
the  verdict  and  enter  a  nonsuit ;  against  which 

Shepherd,  Solicitor-General,  on  this  day  shewed  cause.  He  con- 
tended that  the  plaintifis  were  not  bound  by  the  paper  which  had  been 
delivered  to  the  defendant,  but  that  they  might,  without  calling  for  the 
production  of  that  paper,  recover  on  proof  of  the  sale-note  which  the 
broker  who  was  agent  for  the  defendant  had  delivered  to  themselves, 
and  which  therefore  alone  sufficiently  constituted  a  contract  binding 
upon  the  defendant ;  and  that  if  the  j)laintiffs  proceeded  to  enforce 
that  contract,  the  defendant  did  not  disjjrove  its  existence  by  shewing 
the  existence  of  another  instrument  of  contract,  which  he  on  the  other 
hand  might  pei'haps  likewise  enforce. 

The  Court  desired  him  to  consider  it  in  the  same  light  as  if  there 
had  been  no  intervention  of  a  broker,  but  the  plaintiffs  had  with  their 
own  hand  delivered  to  the  defendant  the  one  note,  and  the  defendant 
had  with  his  own  hand  deUvered  to  the  plaintiffs  the  other  note ;  in 
what  condition  would  the  parties  then  stand  ?  or  Avhat  contract  would 
there  be  subsisting  between  them  ?  For  the  contract  must  be  on  the 
one  side  to  sell,  and  on  the  other  side  to  accept,  one  and  the  same 
thing.     It  had  truly  been  urged  that  contracts  might  subsist  which  by 


366  DICKENSON   V.    LILWAL.  [CHAP.    I. 

reason  of  the  Statute  of  Frauds  could  be  enforced  by  one  party, 
although  they  could  not  be  enforced  by  the  other  party :  but  the  Stat- 
ute of  Frauds  in  that  respect  threw  a  difficulty  in  the  way  of  the  evi- 
dence :  the  objection  did  not  interfere  with  the  substance  of  the  con- 
tract ;  and  it  was  the  negligence  of  the  other  party  that  he  did  not 
take  care  to  obtain  and  preserve  admissible  evidence  to  enable  himself 
also  to  enforce  it.  But  the  objection  in  the  present  case  went  to  the 
substance  of  the  conti-act :  the  parties,  so  far  as  appeared,  had  never 
agreed  that  the  one  should  buy  and  the  other  accept  the  same  thing; 
consequently  there  was  no  agreement  subsisting  between  them.  The 
rule  therefore  must  be  made  Absolute} 


DICKENSON  V.  LILWAL  and   Others. 
At  Nisi  JPrius,  coram  Lord  Ellenborough,  1815. 

'  ■  [Reported  in  1  Slarkie,  128.] 

Assumpsit  on  an  alleged  breach  of  a  contract  to  deliver  goods  bar- 
gained and  sold. 

The  defendants  on  the  30th  of  June  had  authorized  Grainger  their 
broker  to  sell  for  them  a  quantity  of  Irish  butter  which  they  expected 
from  Ireland.  On  the  6th  of  July  Grainger,  without  any  intermediate 
communication  with  his  principals,  sold  to  the  plaintiff  250  firkins  of 
butter  at  the  rate  specified  by  his  employers.  He  made  no  entry  of 
the  sale  in  his  own  book,  but  shortly  afterwards  made  a  note  in  the  fol- 
lowing terms,  which  he  took  to  the  defendants:  — 

Sold  for  Lilwal  &  Co.  to Dickenson  250  firkins  of  Hunt's  Waterford 

butter,  at  100s.  for  the  best  quality  and  the  usual  difference  for  inferior  quality ; 
shipped  in  the  month  of  July,  and  payable  by  bill  at  two  months,  &c. 

Lilwal  &  Co.  dissented  from  the  contract  on  the  ground  that  their 
agent  was  not  authorized  to  make  it  without  a  more  recent  order,  and 
Grainger  tore  the  note,  and  upon  the  trial  gave  parol  evidence  of  the 
contents. 

Park,  for  the  defendants,  contended  that  in  order  to  satisfy  the  Stat- 
ute of  Frauds  it  was  necessary  that  the  broker  shoiild  make  an  entry 

1  "  If  the  broker  deliver  a  different  note  of  the  contract  to  each  party  contracting, 
tliere  is  no  vahd  contract.  There  is,  I  beUeve,  a  case  which  states  the  entry  in  the 
broker's  book  to  be  the  original  contract,  but  it  has  been  since  contradicted.  Each  is 
bound  by  the  note  which  the  broker  delivers ;  and  if  different  notes  are  given  to  the 
parties,  neither  can  understand  the  other."  Gibbs,  C.  J.,  Gumming  v.  Roebuck,  Holt, 
N.  P.  172.— Ed. 


SECT.    VI.]  ROWE   V.    OSBORNE.  367 

of  the  contract  in  his  own  books,  and  that  a  sold  note  was  not  suffi- 
cient, and  cited  Hinde  v.  Whitehouse.^ 

Garrow,  A.  G.,  for  the  plaintiff.  If  it  had  been  held  that  the  broker 
was  bound  to  make  an  entry  in  his  own  book  in  the  first  instance,  it 
might  have  been  a  rule  of  great  convenience ;  but  this  is  not  necessary : 
the  broker  has  made  a  complete  record  of  the  contract  by  making  a 
complete  sold  note,  and  the  defendants  having  by  their  conduct  pre- 
vented the  execution  of  the  "contract  it  was  nugatory  to  multiply  copies. 

Lord  Ellenborougii.  In  the  case  of  Hinde  v.  Whitehouse  the 
entry  in  the  book  was  considered  as  the  contract,  and  the  bought  and 
sold  notes  were  merely  evidence  of  it.  That  case  does  not  go  the 
length  of  deciding  that,  where  no  entry  is  made  in  the  broker's  book, 
the  bought  and  sold  notes  may  not  be  sufficient  to  satisfy  the  statute. 
I  do  not  know  that  the  question  in  the  present  form  has  been  brought 
before  the  consideration  of  the  court,  and  therefore  I  Avill  reserve  the 
point.  Any  memorandum  of  the  contract  is  sufficient  to  save  the 
Statute  of  Frauds,  although  each  party  may  not  have  the  producible 
benefit  of  it. 

The  defendants  afterwards  proved,  by  the  concurrent  testimony 
of  a  great  number  of  Irish  provision  merchants  and  brokers,  that 
according  to  the  established  practice  and  usage  of  the  trade  the 
authority  of  the  broker  (as  between  himself  and  his  principal)  to  sell 
expires  with  the  day  on  which  the  authority  is  given,  unless  it  be 
extended  by  some  special  authority  to  a  future  day,  and  that  it  had 
been  the  usual  course  for  the  broker  to  apj^ly  for  a  renewed  authority 
from  his  principal  everj-  morning. 

The  custom  having  been  fully  established,  the  counsel  for  the  plain- 
tiff elected  to  be  nonsuited. 


ROWE  V.  OSBORNE. 

At  Nisi  Prius,  coram  Lord  Ellenborough,  1815. 

[Reported  in  1  Starhie,  140.] 

AssuiMPSiT  on  a  special  agreement  for  the  purchase  of  a  quantity  of 
bacon  ;  breach  alleged  in  not  accepting  bills  of  exchange  in  pajTuent 
according  to  the  agreement. 

The  contract  was  made  between  the  defendant,  a  trader  in  London, 
with  the  plaintiff,  a  dealer  in  Ireland,  through  the  medium  of  Penny,  a 
broker,  who  delivered  a  note  to  the  plaintiff  signed  by  Osborne  in  the 
following  terms :  — 

»  7  East,  558. 


368  SOAMES   V.    SPENCER.  [CHAP.   I. 

March  28,  1815. 
Bought  of  Rowe  &  Co.,  through  Thomas  Penny,  100  bales  of  prime  singed 
bacon  at  565.  per  cwt.  free  on  board  ;  weight  24  to  28  per  10  bales,  to  be  shipped 
next  month,  and  drawn  for  60  days  from  the  date  of  the  bill  of  lading  ;  warranted 
weight  upon  landing;  deficiency,  if  any,  to  be  settled  by  Mr.  Penny. 

The  Attorney  -General,  for  the  defendant,  objected  that  the  declara- 
tion which  stated  the  clause  as  to  deficiency  as  part  of  the  contract 
varied  from  the  contract,  since  the  note  of  the  contract  sent  to  the 
defendant,  by  which  alone,  as  he  contended,  the  defendant  was  bound, 
contained  no  such  stipulation. 

But  Lord  Ellenborough  was  of  opinion  that  the  note  of  the  contract 
given  in  evidence,  and  which  was  signed  by  the  defendant,  was  evi- 
dence against  him  that  this  was  the  real  contract.^  ... 


SOAMES  AKD   Another  v.   SPENCER  and  Another. 

In  the  King's  Bench,  January  28,  1822. 

[Reported  in  1  Dowling  ^  Ryland,  32.] 

Assumpsit  on  a  contract  for  the  sale  of  90  tons  of  oil,  ^:»er  ship 
Naiad.  Plea,  the  general  issue,  7ion  assumjmt.  At  the  trial  before 
Abbott,  C.  J.,  at  the  Guildhall  sittings  after  last  term,  the  plaintiff  had 
a  verdict. 

The  case  was  this :  Messrs.  Soames  and  Tennant  the  plaintiffs  were 
jointly  interested  in  part. of  the  cargo  of  the  ship  Naiad.  Before  the 
arrival  of  the  vessel,  Soames,  without  the  knowledge  or  authority  of 
Tennant,  sold  the  oil  in  question,  in  which  they  were  jointly  interested, 
to  the  defendants,  through  the  medium  of  Lintot  a  broker.  The  only 
evidence  of  the  contract  was  the  broker's  note  signed  by  the  broker, 
but  Tennant  was  not  named  in  the  note.  Some  time  after  this,  Ten- 
nant hearing  of  the  contract  wi'ote  to  the  defendants,  apprising  them 
that  he  was  jointly  interested  in  the  oil  with  Soames,  that  the  contract 
had  been  entered  into  without  his  knowledge  or  authority,  and  that  he 
considered  himself  released  from  and  would  not  be  bound  by  it.  A 
communication  then  took  place  between  the  defendants  and  Tennant, 
who  endeavored  to  prevail  upon  them  to  release  him  from  the  contract ; 
but  they  declined,  saying  they  would  hold  him  and  the  other  plaintiff 
to  it.  In  consequence  of  this  intimation  Tennant  acquiesced,  and  said 
the  oil  "  then  must  be  delivered."  All  this  took  place  in  the  month  of 
September,  1819,  before  the  vessel  amved,  each  party  considering  him- 
1  The  remainder  of  the  case  relates  to  a  different  question.  —  Ed. 


SECT.    VI.]  SOAMES   V.    SPENCER.  369 

self  bound  by  the  contract.  The  vessel  amved  in  January,  1820,  and 
then  Lintot  the  broker  waited  on  the  defendants  with  sanii)les.  He  saw 
one  of  the  defendants,  to  whom  the  samples  were  delivered,  ami  by  him 
accepted.  The  broker  asked  him  if  he  was  inclined  to  take  the 
remainder  of  the  plaintiffs'  share  of  the  Xaiad's  cargo,  but  he  declined. 
The  prompt  would  expire  on  the  12th  of  February,  and  six  or  seven 
days  before  then  the  defendants  refused  to  be  bound  by  the  contract. 
The  learned  judge  charged  the  jury  under  these  circumstances  that 
the  plaintiffs  were  entitled  to  recover,  and  they  had  a  verdict  accord- 
ingly, with  liberty  to  the  defendants  to  move  to  enter  a  nonsuit  if  the 
court  should  be  of  opinion  that  the  contract  declared  upon  Avas  not 
binding. 

Copley^  S.  G.,  now  moved  to  enter  a  nonsuit,  and  made  three  points : 
1st,  the  broker's  note  is  not  a  contract  in  writing  within  the  meaning 
of  the  Statute  of  Frauds,  29  Car.  2,  c.  3 ;  2d,  supposing  it  to  be  a  con- 
tract in  writing  within  the  meaning  of  that  statute,  it  is  not  binding 
on  Tennant,  who  was  no  party  to  and  gave  no  authority  to  enter  into 
it;  and,  3d,  the  subsequent  ratification  of  it  by  Tennant  cannot  make 
that  a  complete  contract  in  writing  which  was  originally  defective,  for 
the  subsequent  recognition  of  the  original  must  be  considered  as  a  new 
contract,  and  that  new  contract  not  being  in  writing  it  is  void  by  the 
Statute  of  Frauds. 

Abbott,  C.  J.  I  am  of  opinion  that  the  verdict  in  this  case  was 
right.  The  case  turns  uj^on  the  question  Avhether  the  original  contract 
was  ratified  by  Tennant.  He  was  no  party  to  it  at  first,  and  in  fact 
afterwards  repudiated  it ;  but  in  the  result  he  assents  to  it,  and  says, 
"  Then  the  oil  must  be  delivered."  It  is  then  understood  by  all  parties 
that  it  is  to  be  a  binding  contract.  This  is  in  the  month  of  Septem- 
ber. In  January  the  oil  arrives,  and  then  the  -defendants  acting  upon 
the  contract  take  samples ;  and  it  is  not  until  the  very  last  moment 
when  the  j-jrompt  is  about  to  expire  that  they  make  any  objection. 
The  jury  asked  me  whether  in  point  of  law  they  might  find  a  verdict 
for  the  plaintiffs  ?  I  said  that  in  my  opinion  a  subsequent  ratification 
of  a  contract  is  equivalent  to  a  prior  authority;  and  I  told  them  tliat 
if  they  thought  Tennant  did  ratify  the  contract,  and  that  with  the 
knowledge  of  the  defendants,  and  they  acceded  to  it,  it  was  too  late 
for  them  to  say  at  any  after  time  that  they  were  not  bound  by  the  con- 
tract. That  is  the  way  I  left  the  case  to  the  jury.  They  found  for 
the  plaintiffs,  and  I  think  they  came  to  a  just  conclusion. 

Bayley,  J.  I  am  of  the  same  opinion.  The  broker's  note  is  within 
the  Statute  of  Frauds  evidence  of  a  written  contract.  The  oriirinal 
authority  to  sell  need  not  be  in  writing ;  and  if  Tennant  subsequently 
ratified  the  contract,  entering  into  it  by  assenting  to  it,  it  became  a 
binding  contract. 

HoLROYD,  J.     In  this  case  according  to  the  evidence  there  was  a 

TOL.   I.  24 


370  FAREBROTHEE   V.    SIMMONS.  [CHAP.   I. 

subsequent  ratification  by  Tennant  of  the  original  contract,  and  I  think 
that  is  sufficient  to  give  it  validity,  though  originally  made  without  his 
authority.  His  subsequent  ratification  amounts  to  an  original  author- 
ity; and  the  maxim  of  the  law  is,  "Om/ie  actum  ab  agentis  inten- 
tione  est  Judicandum:'  ^  Rule  refused. 


FAREBROTHER  v.   SIMMONS. 
In  the  King's  Bench,  Hilary  Term,  1822. 

{Reported  in  5  Barnewall  Sf  Alderson,  333.] 

Assumpsit  by  the  plaintiflT,  an  auctioneer,  against  the  defendant  for 
not  taking  or  clearing  away  or  paying  the  purchase-money,  being  £34, 
for  a  lot  of  turnips  standing  and  being  on  certain  land.  Second 
count,  for  crop  of  turnips  bargained  and  sold,  &c.,  and  the  usual 
money  counts.  Plea,  general  issue.  At  the  trial  before  Wood,  B.,  at 
the  last  assizes  for  the  county  of  Surrey,  the  only  question  was 
whether  there  was  a  sufticient  contract  in  writing  to  satisfy  the 
Statute  of  Frauds.  It  appeared  that  the  contract  given  in  evidence 
was  the  book  in  which  the  plaintifi"  himself  had  written  down  the 
difierent  biddings  opposite  to  the  lots,  and  which  book  had  been  duly 
stamped.  The  learned  judge  directed  a  verdict  for  the  plaintifij 
reserving  to  the  defendant  liberty  to  move  to  enter  a  nonsuit. 
Marryat  in  last  Michaelmas  term  obtained  a  rule  nisi  for  that  purpose, 
and  cited  Wright  v.  Dannah.- 

■  Gimiey  and  Abraham  now  shewed  cause.  This  was  no  interest  in 
land ;  for  the  turnips  having  ceased  to  grow  the  land  was  merely  a 
warehouse  for  them.  But  even  if  this  be  not  so,  the  book  is  sufticient 
to  take  the  case  out  of  the  statute.  For  the  plaintifi"  may  be  con- 
sidered as  the  agent  of  both  himself  and  the  defendant  for  the. 
purpose  of  reducing  the  contract  into  writing.  The  case  of  Wright 
V.  Dannah  is  distinguishable.  There  the  party  who  wrote  the  memo- 
randum was  the  person  who  made  the  sale  for  his  own  benefit.  Here 
it  is  the  case  of  an  auctioneer  who  has  no  personal  interest  in  the 
transaction. 

Abbott,  C.  J.  The  most  favorable  Avay  for  the  plaintiflT  is  to  treat 
the  question  as  a  case  of  goods  sold  and  delivered;  and  then,  the 
goods  being  above  the  price  of  £10,  the  case  will  fall  within  the  17th 
section  of  the  Statute  of  Frauds,  w^hich  requires  some  note  or  memo- 
randum  in   Avriting  of  the  bargain  to  be  made  and  signed  by  the 

1  Best,  J.,  was  absent  at  Chambers.  ^  2  Canipb.  203. 


SECT.    VI.]  JACKSON   V.   LOWE.  371 

parties  to  be  charged  by  it,  or  their  agents  thereunto  lawfully 
authorized.  Now  the  question  is,  whether  the  writing  down  the 
defendant's  name  by  the  plaintiff  with  the  authority  of  the  defend- 
ant, be  in  law  a  signing  by  the  defendant's  agent.  In  general  an 
auctioneer  may  be  considered  as  the  agent  and  witness  of  both 
parties.  But  the  difficulty  arises  in  this  case  from  the  auctioneer 
suing  as  one  of  the  contracting  parties.  The  case  of  Wright  v. 
Daunah  seems  to  me  to  be  in  point,  and  fortifies  the  conclusion  at 
which  I  have  arrived,  viz.,  that  the  agent  contemplated  by  the 
Legislature  who  is  to  bind  a  defendant  by  his  signature  must  be 
some  third  j^ei'son,  and  not  the  other  contracting  party  upon  the 
record.  Hule  absolute. 


JACKSON  V.  LOWE  and  LYNAM. 

In  the  Common  Pleas,  June  11,  1822. 

[Reported  in  1  Bingham,  9.] 

This  action  was  brought  to  recover  damages  for  the  non-perform- 
ance of  a  contract  for  the  sale  and  delivery  of  100  sacks  of  good 
English  seconds  flour,  at  45s.  a  sack.  At  the  trial  before  Garrow,  B., 
Stafford  Lent  assizes,  1822,  were  given  in  evidence  the  two  following 
documents :  first  a  notice  from  the  plaintiff  to  the  defendants :  — 

To  Messrs.  Joseph  Lowe  and  George  Lyxam, 

of  Stoke-upon-Trent,  in  the  county  of  Stafford,  millers. 

I  the  undersigned,  Samuel  Jackson,  of  Ilanley  in  the  county  of  Stafford, 
grocer  and  flour  dealer,  do  hereby  give  you  notice  (as  I  have  frequently  done) 
that  the  flour  you  caused  to  be  delivered  to  me  on  Wednesday  and  Thursday 
last  (in  part  performance  of  my  contract  with  you  for  100  sacks  or  bags  of  good 
English  seconds  Hour,  at  45s.  per  sack  or  bag,  the  Avhcle  of  which  were  to  have 
been  delivered  as  on  Thursday  last),  is  of  so  bad  a  quality  that  I  cannot  either 
sell  it  as  flour  or  make  it  into  salable  bread,  as  will  appear  by  the  samples 
of  the  flour  and  bread  left  at  tlie  ofllce  of  Mr.  Adams,  attorney  at  law,  in  New- 
castle-undcr-Lyne.  I  further  give  you  notice  that  the  same  bags  or  sacks  of 
flour  (with  the  exception  only  of  the  samples  above  alluded  to)  are  at  my  shop 
and  at  your  risk ;  you  will  therefore  immediately  on  receiving  this  notice  send 
for  them  away,  otherwise  I  shall  commence  an  action  against  you  for  trespass. 
And  I  lastly  give  you  notice  that  I  not  only  hold  you  answerable,  and  expect 
you  to  fulfil  your  part  of  the  contract  above  alluded  to  in  the  course  of  this 
present  week,  but  in  addition  thereto  make  me  ample  remuneration  for  the  loss 
I  have  sustained  in  consequence  of  your  neglect,  as  I  always  have  been  and 
still  am  ready  to  fulfil  my  part  of  the  contract.  Given  under  my  hand  this  2-ith 
day  of  September,  1821. 

Samuel  Jackson. 


372  JACKSON   V.  LOWE.  [CHAP.   I. 

Next  the  answer  to  the  foregoing,  written  at  the  desire  and  under 
the  instructions  of  the  defendants  by  their  attorney's  clerk :  — 

Stoke,  27th  September,  1821. 

Sir,  —  I  have  your  letter  or  notice  of  the  24th  September  directed  to  Messrs. 

Lowe  and  Lynam  now  before  me,  in  reply  to  which  I  have  to  state  that  Messrs. 

L.  and  L.  consider  they  have  performed  their^contract  with  you  as  far  as  it  has 

gone,  and  are  ready  to  complete  the  remainder ;  and  I  have  also  to  inform  you 

that,  unless  the  flour  is  paid  for  at  the  expiration  of  one  month  from  the  20th 

instant,  proceedings  will  be  taken  against  you  for  the  recovery  of  the  amount 

without  any  further  notice.     I  am,  sir,  yours  obediently, 

Wm.  Williams. 
To  Mr.  S.  Jackson,  Baker,  Hanley. 

Sixteen  sacks  of  flour  it  appeared  had  actually  been  delivered ;  but 
it  being  disputed  whether  or  no  there  had  been  on  the  part  of  the 
plaintiff  such  an  acceptance  of  them  as  would  render  unnecessary  a 
note  or  memorandum  of  the  contract  under  the  17th  section  of  the 
Statute  of  Frauds,  it  was  contended  for  the  plaintiff,  and  denied  for 
the  defendants,  that  the  above  notice  and  the  answer  to  it  taken 
together  constituted  a  sufficient  memorandum  of  the  contract  under 
the  provisions  of  that  statute.  A  verdict  having  been  found  for  the 
plaintiff, 

Bosanquet,  Serjt.,  in  the  last  term  moved  for  a  rule  nisi  for  setting 
aside  this  verdict  and  entering  a  nonsuit  or  for  a  new  trial,  on  the 
ground  that,  though  two  distinct  writings  might  be  coupled  so  as  to 
make  a  memorandum  of  contract,  the  above  notice  and  answer  to  it 
did  not  taken  together  constitute  a  suflicient  memorandiim  of  the 
contract  under  the  Statute  of  Frauds :  he  contended  that  the  plain- 
tifl"'s  notice  being  framed  with  the  expression  "  my  contract,"  and  the 
defendants'  answer  with  the  expression  "  their  contract,"  instead  of 
"  the "  contract  or  "  the  contract  in  your  notice,"  there  was  nothing 
from  which  the  jury,  in  the  absence  of  further  evidence,  were  warranted 
to  infer  that  the  contract  mentioned  in  the  answer  was  the  same  as 
the  contract  mentioned  in  the  notice.  The  defendants  would  not 
have  been  prevented  (by  any  thing  which  their  answer  contained) 
from  shewing  that  the  contract  which  they  had  there  in  view  was 
different  from  the  contract  described  in  the  plaintiff's  notice.  If  they 
could  have  shewn  that,  there  was  no  memorandum  authenticated  by 
both  parties  of  the  contract  on  which  the  plaintiff  had  declared. 

A  rule  7iisi  having  been  granted. 

Pell,  Seijt.,  now  shewed  cause  against,  and  Bosanquet  supported 
the  rule. 

Park,  J.^  In  this  case  I  think  there  was  a  sufficient  note  in  writing 
of  the  contract  on  which  the  plaintiff  sued.  It  is  admitted  that  two 
distinct  writings  may  be  coupled  together  and  constitute  a  memoran- 

1  Dallas,  C.  J.,  absent,  being  ill. 


SECT.    VI.]  KENWORTRY    V.   SCHOFIELD.  373 

dum  Avathin  the  intention  of  the  statute,  and  there  are  decisions  to 
tliis  effect.  Saunderson  v.  Jackson,^  Schneider  i-.  Xorris.-  The  ques- 
tion therefore  is,  whether  the  jury  Avere  not  warranted  in  conchiding 
there  was  in  this  case  a  sufficient  note  in  writing.  The  writing  must 
clearly  refer  to  the  contract  which  is  the  ground  of  action ;  but  how 
can  there  be  a  clearer  reference  than  in  the  defendants'  letter  ?  The 
notice  contains  an  assertion  of  the  contract,  specifying  the  quantity, 
quality,  and  price  of  tlie  flour ;  and  to  this  contract  the  answer  most 
clearly  refers,  disputing  none  of  the  tenus  of  it  nor  mentioning  any 
other  terms,  but  asserting  a  part  performance. 

BuRROUGii,  J.  It  is  quite  impossible  for  the  most  scrupulous  man 
to  doubt  that  on  these  two  papers  there  is  sufficient  evidence  in  writing 
of  the  defendants'  conti'act. 

RiciiAEDSox,  J.  I  think  these  two  papers  were  a  sufficient  memo- 
randum or  note  in  writing  of  the  defendants'  contract  according  to 
the  provisions  of  the  Statute  of  Frauds.  The  plaintiff  in  his  notice 
states  the  terms  of  the  contract,  and  the  defendants  by  their  answer 
recognize  them  sufficiently  to  warrant  the  jury  in  concluding  that 
both  parties  had  the  same  contract  in  view.  It  is  admitted  that  if  the 
defendants  had  written,  "  They  have  performed  the  contract  mentioned 
in  your  notice,"  it  would  have  been  sufficient ;  but  the  jury  have  found, 
and  I  think  satisfactorily,  that  this  was  the  contract  referred  to. 
Saunderson  v.  Jackson  is  in  point,  and  the  rule  must  be 

Discharged. 


KENWORTHY  v.   SCHOFIELD. 
■  In  the  King's  Bench,  Easter  Term,  1824. 

[Reixfrted  in  2  DarnewaU  <J-  CressweU,  945.] 

Special  assumpsit  against  the  defendant  for  not  taking  away  a 
cardino-  engine  purchased  bv  him  at  an  auction  agreeable  to  the  con- 
ditions  of  sale  (which  were  set  out),  in  consequence  whereof  it  was 
re-sold  at  a  loss.  Plea,  no)i  assiim2ysit.  At  the  trial  before  Holroyd, 
J.,  at  the  Lancaster  summer  assizes,  1823,  it  appeared  that  the  engine 
in  question  was  put  up  to  sale  by  auction  among  a  variety  of  other 
things :  the  sale  was  subject  to  certain  conditions,  which  were  read  by 
the  auctioneer  before  the  biddings  commenced,  but  they  were  not 
attached  to  the  catalogue  or  referred  to  by  it.  One  Luke  Winter- 
bottom  as  agent  for  the  defendant  was  the  highest  bidder  for  the 
engine ;  and  it  was  knocked  down  to  him,  and  the  auctioneer  wrote  his 
»  2  B.  &  P.  238.  2  2  M.  &  S.  286. 


374  KENWORTHY   V.   SCHOFIELD.  [CHAP.    I. 

name,  and  the  price,  £105,  against  that  article  in  the  catalogue.  For 
the  defendant  it  was  objected,  first,  that  the  Statute  of  Frauds  was 
not  satisfied  by  writing  down  the  name  of  the  agent  of  the  purchaser ; 
secondly,  that  the  conditions  of  sale  were  part  of  the  bargain,  and  not 
being  annexed  to  the  catalogue  the  signature  to  the  latter  did  not 
amount  to  a  signature  of  a  note  or  memorandum  of  the  bargain  within 
the  meaning  of  the  17th  section  of  29  Car.  2,  c.  3.  The  learned 
judge  overruled  the  first  objection,  but  reserved  the  second  point ;  and 
the  plaintiff  having  obtained  a  verdict.  Cross,  Serjt.,  in  Michaelmas 
term  obtained  a  rule  nisi  for  a  nonsuit  or  a  new  trial,  against 
which 

J.  Williams  now  shewed  cause.     The  second  question  now  before 
the  court  is  certainly  very  important,  as  it  respects  the  validity  of  all 
sales  by  auction.     The  first  objection  was  overruled  at  the  trial;  and  it 
appears  by  Phillimore  v.  Barry  ^  that  where  an  authorized  agent  bids 
at  a  sale,  it  is  sufiicient  to  put  down  his  name ;  it  is  not  necessary  that 
the  name  of  the  principal  should  be  then  declared.     The  second  ques- 
tion depends  upon  Lord  Ellenborough's  dictum  in  Hinde  v.  White- 
house.2     g^t   that   case   was   not   decided   on   the   ground   that   the 
memorandum  was  insufficient:  the  court  considered  that  there  had 
been  a  delivery  and  acceptance  of  part  of  the  goods  in  the  name  of 
the  whole  ;  the  other  question  therefore  became  unimportant.     Sup- 
pose conditions  of  sale  to  be  attached  to  a  catalogue  at  first,  but  to  be 
separated  during  the  progress  of  the  sale :  will  the  sale  of  the  lots  pre- 
viously knocked  down   be  good,  and  of  the  rest  bad?     Surely  the 
reading  of  the  conditions  before  the  sale  was  sufficient  to  connect  them 
with  the  biddings  that  afterwards  took  place.     Perhaps  it  is  too  late 
to  contend  that  auctions  of  goods  are  not  within  the  29  Car.  2,  c.  3, 
although  it  appears  by  what  fell  from  three  of  the  learned  judges  in 
Hinde  v.  Whitehouse  they  did  not  concur  in  shaking  the  authority  of 
Simon  v.  Motives,'^  where  it  was  doiibted  whether  such  sales  fell  within 
the  operation  of  the  statute. 

Cross,  Serjt.  (with  whom  was  StarJcie),  contra.  There  was  not  any 
evidence  to  shew  that  the  defendant  or  his  agent  heard  the  conditions 
read ;  no  proof  was  given  of  his  being  in  any  way  conusant  of  them. 
They  were  not  referred  to  by  the  catalogue.  The  mere  signature  of 
that  was  not  then  the  signature  of  a  note  or  memorandum  of  the 
bargain  within  the  meaning  of  the  29  Car.  2,  c.  3,  §  17.  In  Hinde  v. 
Whitehouse  the  point  was  expressly  brought  under  consideration. 
(He  was  then  stopped  by  the  court.) 

Bayley,  J.  It  has  been  decided  by  many  cases  that  in  sales  of  land 
by  auction  the  auctioneer  is  agent  for  both  the  vendor  and  vendee, 
and  that  such  auctions  are  within  the  Statute  of  Frauds.    Walker  v. 

1  1  Canipb.  513.  2  7  East,  558. 

8  3  Burr.  1921. 


SECT.    VI.]  KENWORTHY   V.    SCIIOFIELD.  375 

Constable,^  Emmerson  v.  Ileelis,'^  White  v.  Proctor,^  Kcmeys  v.  Proc- 
tor.* Now  the  hinguage  of  the  17th  section  of  the  Statute  of  Frauds 
relating  to  sales  of  goods  is  in  substance  the  same  as  that  of  the  4th 
section  relating  to  sales  of  land.  The  only  difference  being  that  the 
latter  speaks  of  an  agreement,  the  former  of  a  bargain.  The  word 
"bargain"  means  the  terms  ui)on  which  parties  contract,  and  it  ajipears 
by  Saunderson  v.  Jackson  ^  that  in  order  to  satisfy  the  statute  the  sig- 
nature must  be  either  to  some  written  document  containing  in  itself 
the  terms  of  the  bargain  or  connected  with  some  other  document 
which  does.  Then  comes  Hinde  v.  Whitehouse  in  which  Lord  Ellen- 
borough  after  time  taken  for  consideration  delivered  it  as  his  oi)inion 
that  an  auctioneer  had  not  satisfied  the  requisitions  of  the  statute  by 
signing  the  name  of  the  purchaser  to  the  catalogue,  that  not  being 
connected  with  or  referring  to  the  conditions  of  sale.  In  the  j^resent 
case  nothing  was  said  at  the  time  when  the  engine  was  put  up  as  to 
the  terms  upon  which  the  sale  Avas  to  proceed.  The  very  mischief 
contemplated  by  the  statute  might  occur  in  such  a  case  as  this.  There 
is  abundant  room  for  fraud  and  peijury  respecting  the  conditions  of 
sale.  Inasmuch  therefore  as  there  was  not  any  memorandum  of  the 
temis  of  the  bargain  signed  by  the  parties,  I  think  that  the  case  is 
within  the  29  Car.  2,  c.  3,  §  17,  and  that  a  nonsuit  must  be  entered. 

IIoLROYD,  J.  Upon  the  trial  of  this  case  two  objections  were  made. 
First,  that  the  defendant's  name  was  not  put  down  by  the  auctioneer. 
I  thought  there  was  no  weight  in  that,  and  still  continue  of  the 
same  opinion.  The  other  objection  was  reserved,  and  upon  the  author- 
ity of  Hinde  v.  Whitehouse  I  both  think  that  auctions  of  goods  are 
within  the  Statute  of  Frauds,  and  that  there  has  not  been  a  signature 
to  a  memorandum  of  the  bargain  sufficient  to  satisfy  the  17th  section 
of  that  act.  It  ai)pears  to  me  that  you  cannot  call  that  a  memorandum 
of  a  bargain  which  does  not  contain  the  terms  of  it.  The  argument 
for  the  plaintiff  is,  that  the  conditions  being  in  the  room  were  virtually 
attached  to  the  catalogue.  But  I  think  that,  as  they  were  not  actually 
attached  or  clearly  referred  to,  they  formed  no  part  of  the  thing 
signed.  In  the  case  put  of  a  separation  of  the  conditions  from  the 
catalogue  during  the  progress  of  the  sale,  I  should  say  that  the  sig- 
natures to  the  latter  made  afler  the  separation  were  unavailing.  It 
occun'ed  to  me  at  first  that  this  might  be  likened  to  the  case  of  a  will 
consisting  of  several  detached  sheets,  when  a  signature  of  the  last,  the 
whole  being  on  the  table  at  the  time,  would  be  considered  a  signing  of 
the  whole ;  but  there  the  sheet  signed  is  a  part  of  the  whole.  Here 
the  catalogue  was  altogether  independent  of  the  conditions.  I  agree 
therefore  that  this  rule  for  a  nonsuit  must  be  made  absolute, 

Hule  absolute. 
LiTTLEDALE,  J,,  was  abscnt. 

1  1  B.  &  P.  306.  2  2  Taunt.  38.  3  4  Taunt.  209. 

*  3  V.  &  B,  57.  5  2  B.  &  P.  238. 


376  RAYNER   V.    LINTHORNE.  [CHAP.    I. 

RAYNER  V.  LINTHORNE. 

At  Nisi  Prius,  coram  Abbott,  C.  J.,  December  14,  1825. 

[Reported  in  Ryan  ^-  Moody,  325.] 

Assumpsit.  This  action  was  brought  to  recover  a  compensation  in 
damages  for  a  breach  of  contract  in  not  accepting  and  paying  for  fifty 
casks  of  tallow  which  the  defendant,  as  alleged  in  the  declaration,  had 
bought  of  the  plaintiff. 

In  order  to  prove  the  contract  as  stated  in  the  special  counts  of  the 
declaration  the  followino;  bought  note  was  oiven  in  evidence :  — 

London,  1st  March,  1825. 

Bought  this  day  for  account  of  Mr.  Benjamin  Linthorne  of  my  principal  fifty 
casks  new  and  first  sort  St.  Petersburg  yellow  candle  tallow,  at  445.  per  cwt., 
warranted  to  be  delivered  from  wharf  warehouse  on  landing  scale  in  London 
from  21st  to  31st  of  this  month,  and  the  amount  to  be  paid  by  the  buyer  in  ready 
money,  deducting  2i  per  cent,  discount,  the  seller  giving  fourteen  days'  previous 
notice  of  the  delivery ;  customary  tare  and  draft. 

In  case  of  dispute  respecting  the  quality,  this  contract  shall  not  be  cancelled, 
but  the  same  settled  by  arbitration. 

J.  B.  Rayner,  Broker. 

Marryat  and  PollocJc,  for  the  defendant,  contended  that  upon  this 
evidence  the  plaintiff  must  be  nonsuited :  no  cause  of  action  in  this 
case  arises  on  the  common  counts  of  the  declaration ;  the  action,  if 
maintainable  at  all,  must  be  on  the  special  counts.  Now  all  the  special 
counts  state  the  contract  to  have  been  made  directly  with  the  plaintiff 
himself,  whereas  the  bought  note  represents  the  plaintiff  merely  in 
the  character  of  a  broker  selling  for  his  princii^al;  if  therefore  the 
plaintiff  is  to  be  considered  as  the  principal,  then  there  is  not  a  note 
in  writing  within  the  Statute  of  Frauds. 

Gurney  and  Comyn  contended  that  the  plaintiff  was  entitled  to  sue 
upon  the  contract  proved,  and  that  although  in  the  contract  he  is 
named  as  broker,  still,  as  no  principal  was  called  for,  the  right  to  sue 
vests  in  him,  and  he  may  consistently  state  in  the  declaration  the  con- 
tract to  have  been  made  with  him.  They  cited  as  a  case  in  point 
Atkyns  v.  Amber,  2  Esp.  N.  P.  C.  493. 

Abbott,  C.  J.  If  it  is  contended  in  this  case  that  the  plaintiff 
has  a  right  to  sue  as  principal,  then  I  am  of  opinion  that  no  evidence 
has  been  given  of  a  contract  in  writing,  which  the  Statute  of  Frauds 
expressly  requires  where  there  has  been  no  delivery  of  the  goods.  If 
the  contract  produced  is  to  be  taken  as  the  one  on  which  the  plaintiff 
sues,  he  is  there  described  as  the  broker,  and  not  as  the  principal  with 
whom  the  contract  is  made.     In  the  case  which  has  been  cited  by  the 


SECT.   VI.]  GRANT    V.    FLETCHER.  877 

defendant's  counsel  no  question  arose  upon  the  Statute  of  Frauds,  for 
there  tlie  goods  hud  been  actually  delivered.  I  am  clearly  of  opinion 
that  the  plaintiff  cannot  recover;  and  I  should  be  very  umvilling  to  lay 
down  a  rule  that  would  encourage  a  practice,  now  so  frequent  amongst 
brokers,  of  not  disclosing  the  names  of  their  principal.  Nonsuit. 


GRANT   AXD   OxnEKS   t'.   FLETCHER  and  Another. 
In  the  King's  Bench,  April  15,  1826. 

[Reported  in  5  Barnewall  <j-  Cresswell,  436.] 

Assumpsit  for  not  accepting  400  bags  of  Egji^tian  cotton  pursuant 
to  contract.  Plea,  general  issue.  At  the  trial  before  Hullock,  B.,  at 
the  last  spring  assizes  for  the  county  of  Lancaster,  the  following 
appeared  to  be  the  facts  of  the  case.  The  plaintiffs  having  received 
advices  that  600  bags  of  cotton  were  shipped  for  them  at  Alexandria 
by  the  shij)  Robert,  of  which  one  Wake  Avas  master,  dkected  their 
broker  Withington  to  sell  400  bags  at  17|c?.  per  pound.  AYithingtou 
accordingly  entered  into  a  verbal  conti-act  with  the  defendants,  and 
made  the  following  entry  of  it  in  his  memorand\;m  book :  "  Sold  Peter 
Fletcher  &  Son  400  Eg}q)tians,  to  arrive  ^:)c;'  Robert,  Wake,  at  ll^d.  per 
pound."  And  he  delivered  to  the  defendants  the  following  note  of  the 
contract :  "  Robert,  Wake,  400  bags  of  Egyptian  cotton  at  17|f7.,  shipped 
on  the  22d  of  February  for  William  Grant  &  Brothers.  Henry  With- 
ington." On  the  same  day  he  delivered  to  the  plaintifls  the  folloM'ing 
note :  "  400  certain  to  Messrs.  Fletcher  &  Son,  at  17^d.,  ten  days  and 
three  months  from  the  delivery,  you  allowing  me  my  commission. 
H.  W."  It  was  objected  that  as  the  notes  delivered  to  the  contracting 
parties  were  difterent  neither  was  bound ;  and  Gumming  v.  Roebuck  ^ 
was  cited.  The  learned  judge  was  of  opinion  that  there  was  no  valid 
contract  binding  both  parties,  and  the  plaintiff  was  nonsuited. 

Cross,  Serjt.,  moved  for  a  new  trial.  It  may  be  conceded  that, 
where  a  broker  delivers  to  the  contracting  pai'ties  two  instruments 
each  of  which  contains  a  distinct  contract,  neither  party  is  bound. 
But  here  neither  of  the  notes  delivered  to  the  parties  contained  a  com- 
plete contract.  That  delivered  to  the  defendants  did  not  import  a 
contract  of  sale,  nor  were  the  names  of  the  buyers  mentioned.  That 
delivered  to  the  plaintiffs  did  not  mention  the  commodity  sold.  Tlie 
contract  of  sale  was  verbal ;  and  the  question  is,  whether  there  was  any 
note  in  writing  of  that  contract.     Now  the  entry  by  the  broker  in  the 

1  Holt's  N.  P.  C.  172. 


378  ELMORE   V.    KINGSCOTE.  [CHAP.    I. 

memorandum  book,  together  Avith  the  note  delivered  to  the  defendant, 
did  constitute  a  complete  contract.  For  they  contained  the  names  of 
the  buyers  and  of  the  sellers,  the  description  of  the  commodity  sold, 
and  the  price ;  and  that  being  so,  there  was  a  note  in  writing  of  the 
contract. 

Abbott,  C.  J.  The  broker  is  the  agent  of  both  parties,  and  as 
such  may  bind  them  by  signing  the  same  contract  on  behalf  of  buyer 
and  seller.  But  if  he  does  not  sign  the  same  contract  for  both  parties, 
neither  will  be  bound.  It  has  been  decided  accordingly  that  where 
the  broker  delivers  a  different  note  of  the  contract  to  each  of  the  con- 
tracting parties  there  is  no  valid  contract.  The  entry  in  the  broker's 
book  is  properly  speaking  the  original,  and  ought  to  be  signed  by 
him.  The  bought  and  sold  notes  delivered  to  the  jiarties  ought  to  be 
copies  of  it.  A  valid  contract  may  probably  be  made  by  perfect  notes 
signed  by  the  broker  and  delivered  to  the  parties,  although  the  book 
be  not  signed ;  but  if  the  notes  are  imperfect,  as  in  the  present  case, 
an  unsigned  entry  in  the  book  will  not  supply  the  defect.  It  is  the 
dutv  of  brokers  to  make  the  contract  so  as  to  be  binding  on  both  par- 
ties. They  are  employed  to  j^repare  contracts  on  which  great  sums  of 
money  depend  ;  and  I  must  say  that  in  many  cases  which  have  come 
before  me  they  appear  to  conduct  their  business  in  a  very  slovenly, 
negligent  manner.  Rule  refused. 


ELMORE  V.  KINGSCOTE. 

In  the  King's  Bench,  Trinity  Term,  1826. 

\Ilepoii.ed  in  5  Barneivall  S/-  Cresswell,  583.] 

Indebitatus  assumpsit  for  horses  sold  and  delivered.  Quantum 
valebant.  Plea,  non  asswn^ysit.  At  the  trial  before  Abbott,  C.  J.,  at 
the  Middlesex  sittings  after  last  term,  it  appeared  that  this  was  an 
action  brought  to  recover  the  price  of  a  horse  alleged  to  have  been 
sold  to  the  defendant.  Proof  was  given  that  on  the  13th  of  June 
there  was  a  verbal  contract  of  sale  made  between  the  plaintiff  and 
defendant,  by  which  the  plaintiff  had  agreed  to  sell  to  the  defendant 
the  horse,  warranted  five  years  old,  for  the  sum  of  200  guineas.  In 
order  to  take  the  case  out  of  the  Statute  of  Frauds,  the  jjlaintiff  gave 
in  evidence  the  following  letter,  written  by  the  defendant  on  the  18th 
of  June :  "  Mr.  Kingscote  begs  to  inform  Mr.  Elmore  that,  if  the  horse 
can  be  proved  to  be  five  years  old  on  the  13th  of  this  month,  in  a  per- 
fectly satisfactory  manner,  of  course  he  shall  be  most  happy  to  take 


SECT.    VI.]  GOOM   V.    AFLALO.  379 

him ;  and  if  not  most  clearly  proved,  Mr,  K.  will  most  decidedly  have 
notliint;  to  do  with  him."  The  Lord  Chief  Justice  was  of  opinion  that 
this  was  not  a  sufficient  note  or  memorandum  in  Avriting  of  tlie  bar- 
sain  within  the  Statute  of  Frauds;  and  he  directed  the  plaintilf  to  be 
nonsuited,  but  reserved  liberty  to  him  to  move  to  enter  a  verdict. 

Scarlett  now  moved  accordingly,  and  contended  that,  as  the  defend- 
ant's letter  was  an  acknowledgment  by  him  that  he  had  bought  the 
horse  on  the  13th  of  June,  it  was  a  note  in  writing  of  a  bargain  for  the 
purchase  of  a  horse,  and  that  it  was  competent  for  the  plaintiff"  to 
prove  the  value  of  the  liorse  by  parol  evidence,  and  to  recover  the 
amount  under  the  count  for  quantwn  valebant.     But 

Per  Curiam.     There  must  be  a  note  or  memorandum  in  writing  of  ' 
the  bargain.     The  price  agreed  to  be  paid  constitutes  a  material  part 
of  the  bargain.     If  it  were  competent  to  a  party  to  prove  by  parol 
evidence  the  price  intended  to  be  paid,  it  would  let  in  much  of  the 
mischief  which  it  was  the  object  of  the  statute  to  prevent. 

Rule  refused} 


GOOM  V.   AFLALO. 

In  the  King's  Bench,  NovExMber  28,  1826. 

{Reported  in  6  Barnewall  <J'  Cresswell,  117.] 

AssmiPSiT  brought  by  the  plaintiff  against  the  defendant  for  refusing 
to  deliver  a  quantity  of  Barbary  gum,  pursuant  to  a  contract  of  sale 
alleged  to  have  been  entered  into  with  the  plaintiff  by  a  Mr.  Virgo  as 
the  broker  of  the  plaintiff  and  defendant.  Plea,  the  general  issue. 
At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  last  Hilary 
term,  a  verdict  was  found  for  the  plaintiff.  Afterwards,  upon  a  motion 
for  a  new  trial,  the  court  directed  that  the  facts  should  be  stated  for 
their  opinion  in  the  following  case :  — 

Mr.  Virsro,  as  the  broker  of  the  defendant  and  with  his  authority, 
agreed  with  the  plaintiff  that  the  defendant  should  sell  and  deliver  to 
him  170  serons  of  Barbaiy  gum  at  the  price  of  555.  per  cwt.  The 
broker  thereupon  wrote  in  his  broker's  book  the  terms  of  the  contract, 

as  follows :  — 

LoNDOX,  23d  Februan-,  1825. 

Sold  for  account  of  Mr.  Aflalo,  to  Mr.  S.  T.  Goom,  170  serons  of  Barbary 
gum,  subject  to  approval  of  quality  to-morrow,  per  the  Mogadore,  lying  in  the  Lon- 
don Docks,  at  005.  per  cwt.  in  bond  ;  customary  allowance  for  tare  and  draft ; 
2i  per  cent,  discount  for  cash  in  fourteen  days,  or  four  months'  credit.  The  gum 
remaining  in  the  seller's  name  at  the  docks. 

1  See  Ide  v.  Stanton,  15  Vt.  685.  —  Ed. 


380  GOOM    V.   AFLALO.  [CHAP.   I. 

This  entry  in  the  broker's  book  was  not  signed  by  the  broker  or  any 
other  person.  Between  nine  and  ten  o'clock  at  night  of  the  said  23d 
February  the  broker  sent  to  the  plaintiff  and  defendant  i-espectively 
paper  writings,  commonly  called  bought  and  sold  notes,  copied  from  the 
entry  in  his  book  and  signed  by  him. 

Between  nine  and  ten  o'clock  in  the  morning  of  the  24th  Febru- 
ary the  defendant  objected  to  and  returned  the  sold  note  to  the 
broker,  and  wholly  refused  to  deliver  the  gum.  Whereupon  this  action 
was  brought. 

Zmo,  for  the  plaintiff.     The  only  question  in  this  case  is,  whether 
the  want  of  the  broker's  signature  to  the  entry  in  his  book  is  fatal  to 
the  plaintiff's  right  of  action.     That  must  depend  upon  whether  there 
is  a  sufficient  note  or  memorandum  of  the  bargain  signed  by  an  agent 
duly  authorized,  so  as  to  satisfy  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  §  17. 
The  case  of  Simon  v.  Motivos  ^  shews  that  the  broker  was  an  agent 
duly  authorized,  and  in  Rucker  v.  Cammeyer  ^  it  was  held  that  the 
bought  and  sold  notes  signed  by  the  broker  were  a  sufficient  memo- 
randum of  the  baro-ain.     In  Gumming  v.  Roebuck  ^  the  same  was  held 
byGibbs,  C.  J. ;  and  he  there  alludes  to  an  opinion  somewhere  ex- 
pressed that  the  entry  in  the  broker's  book,  signed  by  him,  was  the 
only  proper  evidence  of  the  agreement,  and  says  that  it  had  been  over- 
ruled.    The  case  alluded  to  was  probably  that  of  Heyman  v.  ISTeale,* 
where  the  broker  signed  the  entry  in  his  book,  and  then  sent  bought 
and  sold  notes  to  the  parties.     The  defendant  insisted  that  the  notes 
were  sent  for  approbation,  and  that  until  that  had  been  given  there  was 
no  binding  contract.     Lord  Ellenborough  said  that  the  entry  made  and 
signed  by  the  broker  was  alone  the  binding  contract ;  that  the  bought 
and  sold  notes  were  only  copies  of  that  entry,  which  would  be  binding 
although  no  such  notes  were  ever  sent  to  the  vendor  or  purchaser. 
The  judgment  must  be  considered  to  have  been  given  with  reference 
to  the  state  of  facts  then  before  the  court,  and  is  not  applicable  to 
the  present  case,  in  which  the  broker  has  not  signed  his  book.     In 
Powell  V.  Divett,^  decided  after  Heyman   v.  ISTeale,  the  plaintiff  in 
support  of  his  case  offered  in  evidence  a  note  signed  by  the  broker, 
the  entry  in  his  book  not  having  been  signed.     It  appeared  that  the 
plaintiff  had  procured  an  alteration  to  be  made  in  the  note,  and  on 
that  ground  he  was  nonsuited ;  but  it  was  jiot  contended  there  that  the 
note,  if  unaltered,  would  not  have  sufficed.    In  the  late  case  of  Grant 
V.  Fletcher  ^  an  opinion  is  expressed  that  where  the  broker's  book  is  not 
signed  the  parties  are  bound  by  bought  and  sold  notes. 

Chitty,  contra.  The  first  question  in  this  case  is.  What  was  intended 
by  the  broker  to  be  the  original  note  or  memorandum  of  the  bargain  ? 
If  the  entry  in  his  book  was  intended  to  be  the  original  note  of  the 

1  3  Burr.  1921.  2  i  Esp.  105.  »  Holt,  N.  P.  C.  172. 

<  2  Campb.  337.  ^  15  East,  29.  6  5  b.  &  C.  436. 


SECT.    VI.]  GOOM    V.    AFLALO.  381 

bargain,  that  was  the  best  evidence  ;  and  the  bought  and  sold  notes 
were  inadmissible.  The  book,  for  want  of  the  broker's  signature,  was 
not  binding,  and  consequently  there  was  no  proper  evidence  of  a 
binding  contract.  The  case  of  Powell  v.  Divett  turned  entirely  upon 
the  question  of  fraud,  and  cannot  be  considered  as  an  authority  for  the 
decision  of  this  question.  Then  the  case  of  Ileyman  v.  Neale  is  very 
strong  for  the  defendant.  Lord  P^llenborough  begins  his  judgment  by 
statinc:  that  after  the  broker  has  entered  the  contract  in  his  book 
neither  party  can  recede  from  it.  The  bought  and  sold  note  is  not 
sent  on  ai)probation,  nor  does  it  constitute  the  contract.  The  entry 
made  and  signed  by  the  broker  is  alone  the  binding  contract.  It  is 
true  that,  in  Gumming  v.  Roebuck,  Gibbs,  G.  J.,  mentions  this  doctrine, 
and  says  it  has  been  contradicted.  He  must  have  alluded  to  the  case  of 
Dickenson  v.  Lihval,^  which  was  decided  a  few  inonths  before  Gum- 
ming V.  Roebuck ;  but  it  does  not  warrant  the  observation.  In  that 
case  the  broker  made  no  entry  in  his  book,  but  signed  and  delivered 
bouccht  and  sold  notes.  Hinde  v.  "Whitehouse  -  Avas  cited  to  shew  that 
these  were  insufficient,  but  Lord  Ellenborough  said  :  "That  case  does 
not  go  the  length  of  deciding  that  where  no  entry  is  made  in  the 
broker's  book  the  bought  and  sold  notes  may  not  be  sufficient  to  sat- 
isfy the  statute ;  "  and  his  Lordship  offered  to  reserve  the  point.  Here 
there  was  an  entry  in  the  broker's  book,  which  constitutes  an  essential 
difference  between  the  two  cases.  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Abbott,  G.  J.  It  appears  in  this  case  that  Virgo  the  broker  was 
authorized  by  the  defendant  to  sell  the  goods  in  question,  that  he  con- 
tracted for  the  sale  of  them  to  the  plaintiff,  entered  a  memorandum  of 
the  bargain  in  his  broker's  book  but  did  not  sign  that  entry,  and  then 
sent  to  each  of  the  parties  a  copy  of  the  memorandum  signed  by  him- 
self. The  only  objection  to  the  validity  of  the  contract  is  the  want  of 
his  signature  to  the  memorandum  in  -the  book. 

It  is  clear  that  the  contract  was  made  in  such  a  manner  as  to  bind 
the  defendant  within  the  requisites  of  the  Statute  of  Frauds.  If 
therefore  it  is  to  be  held  invalid,  this  can  only  be  done  on  the  ground 
of  some  usage  or  custom  of  merchants  which  the  court  is  at  liberty  to 
recognize  as  a  part  of  the  common  law.  No  such  usage  has  been  found 
or  stated  as  a  fact  upon  the  present  occasion.  There  are  several  cases 
in  the  books  in  which  this  point  has  been  noticed.  They  were  all 
quoted  in  the  argument  at  the  bar,  and  it  is  unnecessary  to  rcj)cat  them. 
A  signed  entry  in  the  brokei-'s  book,  and  signed  notes  conformable  to 
each  otlier  delivered  to  the  parties,  arc  spoken  of  as  making  a  valid 
contract:  the  entry  in  the  book  has  been  called  the  original,  and  the 
notes  copies ;  but  there  is  not  any  actual  decision  that  a  valid  contract 
1  1  Stark.  N.  P.  C.  128.  ^  7  East,  568. 


382  THORNTON   V.   MEDX.  [CHAP.    I. 

may  not  be  made  by  notes  duly  signed  if  the  entry  in  the  book  be 
unsigned ;  and  in  one  case  the  late  Lord  Chief  Justice  Gibbs  is  reported 
to  have  spoken  of  some  supposed  decision  to  that  effect  as  having  been 
overruled.  Under  such  circumstances  we  cannot  say  that  the  rule  for 
which  the  defendant  contends  has  been  adopted  by  the  court  as  part 
of  the  law  merchant.  Strong  expressions  as  to  the  duty  of  the  broker 
to  sign  his  book  do  not  go  far  enough  for  this  purpose,  nor  does  the 
obligation  to  do  this  which  a  broker  is  supposed  to  enter  into  upon 
receiving  a  license  to  practise  in  the  city  of  London.  Brokei-s  are,  I 
believe,  established  in  the  principal  commercial  towns  on  the  continent 
under  municipal  regulations  calculated  to  obtain  punctuality  and  fidel- 
ity in  their  dealings ;  and  the  signature  of  their  book  is  certainly  one 
method  of  insuring  these,  and  may  in  some  cases  furnish  evidence  and 
facilitate  the  proof  of  a  contract.  We  have  no  doubt  that  a  broker 
ought  to  sign  his  book,  and  that  every  punctual  broker  will  do  so.  But 
if  we  were  to  hold  such  a  signature  essential  to  the  validity  of  the  con- 
tract we  should  go  further  than  the  courts  have  hitherto  gone  and 
might  possibly  lay  down  a  rule  that  would  be  followed  by  serious  incon- 
venience, because  we  should  make  the  validity  of  the  contract  to  depend 
upon  some  private  act  of  which  neither  of  the  parties  to  the  contract 
would  be  informed,  and  thereby  place  it  in  the  power  of  a  negligent  or 
fraudulent  man  to  render  the  engagement  of  parties  valid  or  invalid  at 
his  pleasure. 

For  these  reasons  we  think  the  plaintiff  is  entitled  to  retain  the  ver- 
dict. Postea  to  the  plaintiff. 


THORNTON  and   Others  v.  MEUX. 
At  Guildhall,  coram  Abbott,  C.  J.,  March  7,  1827. 

[Reported  in  Moody  §•  Malkin,  43.] 

Assumpsit  for  goods  sold  and  delivered,  goods  bargained  and  sold,  &c. 

The  sale  was  effected  through  the  agency  of  Messrs.  Sharp,  brokers, 
who  transmitted  a  note  of  the  contract  to  each  party.  The  note  sent 
to  the  plaintiffs  stated  the  sale  as  "  made  on  their  account  to  our  prin- 
cipal T.  Meux;"  and  after  stating  the  quantity,  price,  and  time  of 
delivery,  proceeded  thus :  "  To  be  paid  for  in  cash  by  the  brokers  at 
the  expiration  of  fourteen  days  after  finishing  the  landing  of  a  parcel 
by  a  ship,  if  delivered  from  scale ;  or  in  like  manner  after  receipt  of  the 
order  for  delivery,  if  from  warehouse."  The  note  sent  to  the  defend- 
ant omitted  the  words  "by  the  brokers." 


SECT.    VI.]  RICHARDS   V.    PORTER.  383 

Marryat  proposed  to  shew  the  entry  in  the  broker's  book  as  evi- 
dence to  prove  which  of  the  two  notes  described  the  transaction 
correctly. 

Scarlett  and  Campbell  objected.  Neither  party  saw  the  book  :  tliey 
are  therefore  only  bound  by  the  communication  they  receive.  It  is 
the  duty  of  the  broker  to  enter  the  contract  in  his  book,  for  the  con- 
venience of  the  parties  if  they  want  to  refer  to  it ;  but  the  notes  are 
what  bind  them,  and  if  the  notes  vary  from  the  book  the  parties  are 
only  bound  by  what  they  receive.  And  they  referred  to  Grant  v. 
Fletcher,  5  B.  &  C.  436. 

Abbott,  C.  J.  I  used  to  think  at  one  time  that  the  broker's 
book  was  the  proper  evidence  of  the  contract;  but  I  afterwards 
changed  my  opinion,  and  held  conformably  to  the  opinion  of  the  rest 
of  the  court  that  the  copies  delivered  to  the  parties  were  the  evidence 
of  the  contract  they  entered  into,  still  feeling  it  to  be  a  duty  in  the 
broker  to  take  care  that  the  copies  should  correspond.  I  think  I  must 
still  act  upon  that  opinion,  and  refuse  the  evidence.^  .  .  . 


RICHARDS  AND  Another  v.  PORTER. 
In  the  King's  Bench,  May  4,  1827. 

\ReTported  in  6  Barneivall  Sr  CressweU,  437.] 

Assumpsit  for  goods  sold  and  delivered.  Plea,  7ion  assumpsit.  At 
the  trial  before  Vaughan,  B.,  at  the  last  summer  assizes  for  Worcester, 
it  appear(^d  that  the  plaintiffs  on  the  25th  of  January,  1826,  had  sent 
from  Worcester  to  the  defendant  at  Derby  an  invoice  of  five  pockets  of 
hops,  and  delivered  the  hops  the  same  day  to  the  carriers  to  be  con- 
veyed from  Worcester  to  Derby,  and  informed  the  defendant  at  the 
same  time  that  they  were  so  forwarded.  The  invoice  described  the 
plaintiffs  as  the  sellers  and  the  defendant  as  the  purchaser  of  the  hops. 
The  only  proof  of  any  note  or  memorandum  of  a  contract  in  Avriting  was 
the  following  letter  of  the  defendant  on  the  27th  of  February  addressed 
to  the  plaintiffs  :  "  The  hops  (five  pockets)  which  I  bought  of  Mr. 
Richards  on  the  28d  of  last  month  are  not  yet  arrived,  nor  have  I  ever 
heard  of  them.  I  received  the  invoice  :  the  last  was  much  longer  than 
they  ought  to  have  been  on  the  road ;  however,  if  they  do  not  arrive 
in  a  few  days  I  must  get  some  elsewhere,  and  consequently  cannot 
accept  them."     The  learned  judge  was  of  opinion  that  there  was  not 

1  The  remainder  of  the  case  relates  to  a  different  question.  —  Ed. 


884  HENDERSON    V.    BARNEWALL.  [CHAP.    I. 

any  note  in  writing  of  the  contract  sufficient  to  satisfy  the  Statute  of 
Frauds,  and  nonsuited  the  plaintiff. 

Hussell  now  moved  to  set  aside  the  nonsuit.  The  defendant  by  his 
letter  recognizes  the  contract  as  a  still  subsisting  contract.  He  does 
not  in  any  way  falsify  it.  In  Cooper  v.  Smith  ^  the  letter  of  the  buyer 
falsified  the  contract.  He  insisted  that  the  flour  was  to  be  delivered 
within  a  week.  Here  the  defendant  says  he  had  bought  five  pockets  of 
hops  of  Mr.  Richards,  but  does  not  allege  that  it  was  any  part  of  the 
contract  that  they  were  to  be  delivered  within  any  specified  time. 
Saunderson  v.  Jackson^  shews  that  a  subsequent  letter  referring  to  or 
recognizing  the  contract  may  be  connected  Avith  a  bill  of  parcels  already 
delivered,  so  as  to  make  a  sufficient  note  in  writing  to  satisfy  the  stat- 
ute ;  and  the  authority  of  that  case  was  admitted  in  Cooper  v.  Smith, 
which  was  distinguished  on  the  ground  that  the  letter  did  not  recog- 
nize but  falsify  the  contract.  Schneider  v.  Norris  ^  shews  that  a  letter 
recognizing  an  invoice  or  bill  of  parcels  is  such  evidence  of  the  con- 
tract as  to  take  a  case  out  of  the  mischief  which  the  statute  was 
intended  to  prevent ;  and  in  Allen  v.  Bennet  *  it  was  held  that  an 
order  for  goods  written  and  signed  by  the  seller's  agent  in  a  book  of 
the  buyer,  but  not  naming  the  buyer,  might  be  connected  with  a  let- 
ter of  the  seller  to  his  agent  mentioning  the  name  of  the  buyer,  and 
with  a  letter  of  the  buyer  to  the  seller  claiming  the  performance  of  the 
order,  so  as  to  constitute  a  complete  contract  within  the  Statute  of 
Frauds. 

Lord  Texterden",  C.  J.  I  think  this  letter  is  not  a  sufficient  note 
or  memorandum  in  writing  of  the  contract  to  satisfy  the  Statute  of 
Frauds.  Even  connecting  it  with  the  invoice  it  is  imperfect.  If  we 
were  to  decide  that  this  was  a  sufficient  note  in  writing  we  should  in 
effijct  hold  that  if  a  man  were  to  write  and  say,  "  I  have  received  your 
invoice,  but  I  insist  upon  it  the  hops  have  not  been  sent  in  time,"  that 
would  be  a  note  or  memorandum  in  writing  of  the  contract  sufficient 
to  satisfy  the  statute.  I  think  the  case  of  Cooper  v.  Smith  in  substance 
is  not  distinguishable  from  this  case.  Rule  refused. 


HENDERSON   v.  BARNEWALL  and   Another. 
In  the  Exchequer,  Easter  Term,  1827. 

[Reported  in  1  Younge  &  Jervis,  387.] 

Assumpsit  for  not  accepting  goods  pursuant  to  an  alleged  jcontract 
between  the  plaintiff  and  defendants.     Plea,  non  assumpsit. 

1  15  East,  103.  2  2  Bos.  &  P.  238. 

3  2  M.  &  S.  286.  4  3  Taunt.  169. 


SECT.    VI.]  HENDERSON   V.   BARNEWALL.  385 

At  the  trial  before  Hullock,  B.,  at  the  Lancaster  summer  assizes, 
1826,  it  appeared  in  evidence  that  the  plaintiff  liaving  a  quantity  of 
pot-ashes  to  sell  emj)loyed  Rowland  Roscoe  a  broker  to  dispose 
of  them ;  and  that  shortly  afterwards  tlie  defendants  applied  to 
William  Roscoe,  the  clerk  and  salesman  of  Rowland  Roscoe,  for  the 
purpose  of  ascertaining  if  he  knew  any  person  who  had  pot-ashes  to 
sell,  who  havmg  mentioned  the  plaintiff  and  the  price  he  wished 
to  obtain  was  authorized  by  them  to  offer  305.  per  cwt.  He  in  conse- 
quence introduced  them  to  the  plaintiff,  and  having  establislied  a 
negotiation  between  the  parties  brought  them  together  in  the 
Exchange  at  Liverpool,  where  going  up  to  them  he  said,  "  Well, 
gentlemen,  I  suppose  you  have  closed  the  contract,"  to  which  they 
assented ;  and  the  plaintiff  in  the  hearing  of  one  of  the  defendants 
dictated  to  him  the  terms  of  the  agreement.  He  immediately  went 
to  his  principal's  office  and  made  an  entry  of  the  sale  in  the  contract 
book,  which  he  did  not  sign,  and  on  the  same  day  communicated  the 
circumstances  to  Rowland  Roscoe,  who  directed  a  clerk  in  his  office 
to  enter  the  particulars  of  the  sale  in  his  sale-book;  which  were 
entered  accordingly,  and  signed  by  the  clerk.  On  the  same  day  a  sale 
note  was  signed  and  sent  to  the  plaintiff  by  Rowland  Roscoe,  but  no 
bought  note  was  sent  to  the  defendants  ;  who  a  few  days  afterwards 
called  at  the  office  of  the  broker  and  requested  William  Roscoe  to 
alter  the  name  of  the  purchaser  in  the  entry,  which  he  refused  to  do. 
It  appeared  further  that  the  broker  himself  had  not  seen  the  defend- 
ants on  the  subject  of  the  purchase. 

The  counsel  for  the  plaintiff  tendered  evidence  that  it  was  not  the 
custom  at  Liverpool  for  a  broker  to  send  bought  notes  or  personally 
to  sign  the  entry  in  his  book  ;  but  that  evidence  was  rejected  by  the 
learned  judge,  who  was  of  opinion  that  custom  could  not  control  the 
law  in  this  respect.  Two  points  were  raised  by  Scarlett  upon  these 
facts :  first,  that  the  broker  was  not  the  agent  of  the  defendants ; 
and  secondly,  if  he  were,  that  not  having  delivered  a  bought  note  he 
had  not  duly  executed  his  authority.  The  learned  Baron  reserved 
the  points,  giving  the  defendants  leave  to  move  to  enter  a  nonsuit ; 
and  the  jury  found  a  verdict  for  the  plaintiff.  In  Easter  term  Scarlett 
obtained  a  rule  to  shew  cause  why  the  verdict  should  not  be  set  aside 
and  a  nonsuit  entered  ui)0n  the  points  made  at  the  trial ;  and  having 
cited  the  cases  of  Thornton  v.  Kempster,^  Gumming  v.  Roebuck,'-  and 
Grant  v.  Fletcher,^  in  Avhich  it  had  been  decided  that  where  tht 
bought  and  sale  notes  were  different  the  contract  was  void,  he  con- 
tended that  a  fortiori  where  no  note  was  sent  to  one  party  there  was 
no  binding  contract. 

Henderson  (with  whom  was  Pollock,  F.)  shewed  cause.     The  rule 

1  5  Taunt.  78G;  s.  c.  1  Marsh.  355.  2  Holt's  N.  P.  173. 

3  8  D.  &  R.  59 ;  8.  c.  5  B.  &  C.  436. 
VOL.  I.  26 


386  HENDERSON   V.   BARNEWALL.  [CHAP.   I. 

in  this  case,  which  depends  upon  whether  there  is  a  sufficient  note  or 
memorandum  of  the  bargain  signed  by  an  agent  duly  authorized  so  as 
to  satisfy  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  §  17,  was  obtained 
on  two  grounds  :  first,  that  the  broker  was  not  the  authorized  agent  of 
the  defendants.;  and  secondly,  if  he  were  so,  that  his  authority  was 
not  duly  executed.  To  hold  that  the  broker  in  this  case  was  the 
agent  of  the  seller  only  would  militate  against  the  general  principle 
of  law  regulating  commercial  transactions,  by  which  the  broker  is  held 
to  be  the  agent  of  both  parties.  "If  (says  Lord  Erskine  in  the 
case  of  Buckmaster  v.  Harrop  ^)  the  purchaser  agrees  to  buy,  and 
adopts  the  broker  only  by  consenting  to  buy,  that  converts  the  broker 
into  an  agent,  and  concludes  both  parties."  This  doctrine  was 
recognized  in  the  case  of  Hinde  v.  Whitehouse,^  and  has  been  held 
to  apply  equally  where  the  broker  is  both  employed  and  paid  by  the 
vendor.  Hicks  v.  Hankin.^  The  terms  of  the  bargain  having  been 
arranged  between  the  parties  themselves  cannot  afiect  the  law  upon 
the  subject,  for  that  which  passed  between  them  did  not  in  law 
amount  to  a  contract ;  and  the  case  of  Rucker  v.  Camnieyer  ^  is  a 
decisive  answer  to  an  objection  on  that  ground.  A  third  objection 
to  the  agency  of  the  broker  is  raised  in  consequence  of  the  interven- 
tion of  the  clerk.  This  is  not  the  case  of  the  principal  deputing  his 
authority  to  an  agent  without  the  knoAvledge  of  the  employer,  for  the 
defendants  were  aware  of  the  relation  which  subsisted  between 
the  broker  and  his  clerk ;  and  with  the  consent  of  the  parties  the 
confidence  reposed  in  the  principal  may  be  transfei-red  to  the  agent. 
Coles  V.  Trecothick.^  [Hullock,  B.  In  that  case  the  clerk  who 
wrote  the  contract  was  the  agent  of  the  defendant  and  signed  it  also 
for  his  master.  So  that,  quaciunqae  via  data,  he  was  the  agent  of  the 
party.  An  auctioneer's  clerk  who  writes  down  the  name  of  the 
buyer  in  his  presence  is  the  agent  of  both  joarties.]  But  it  is  not 
necessary  that  the  entry  in  the  book  should  be  signed,  all  that 
the  Statute  of  Frauds  reqiiires  being  some  note  or  memorandum 
in  writing  of  the  bargain  signed  by  the  parties  to  be  charged  or  their 
agents  lawfully  authorized.  The  identical  agreement  need  not  be 
signed  (Coles  v.  Trecothick)  :  why  therefore  is  not  the  sale  note  a  suffi- 
cient memorandum  to  satisfy  the  statute  ?  A  defective  memorandum 
may  be  aided  by  a  subsequent  letter  (Cooj^er  v.  Smith  ''),  which  is 
putting  a  much  more  liberal  construction  on  the  statute  than  it  is  here 
necessary  to  contend  for. 

Upon  the  second  point  it  is  contended  that  both  a  bought 
and  sale  note  are  essential,  as  an  inference  from  several  cases  in 
which  it  has  been  held  that  Avhere  they  diffisred  there  could  be 
no  binding  contract.     It  will  not  however  be  necessary  to  impeach 

1  13  Ves.  473.  2  7  East,  558.  3  4  Esp.  114. 

4  1  Esp.  105.  5  9  Ves.  234.  6  15  East,  103. 


SECT.    VI.]  HENDERSON   V.   BARNEWALL.  387 

those  decisions,  as  the  principle  upon  which  they  proceed  does  not 
aiFect  the  present  case ;  and  that  two  inconsistent  instruments  should 
be  mutually  destructive  of  each  other,  while  u]>on  a  single  and  con- 
sistent dociiment  a  plaintiff  may  recover,  is  perfectly  intelligible. 
Thornton  r.  Kcmpster  ^  is  the  first  case  upon  this  sul)ject,  the  decision 
in  which  did  not  [iroceed  upon  the  Statute  of  Frauds  but  upon  the 
inconsistency  of  the  contract.  Acting  through  the  intervention  of  an 
agent  cannot  affect  the  rights  of  the  parties;  and  it  is  quite  clear  that 
if  the  agreement  in  that  case  had  been  a  parol  agreement  for  goods 
under  the  value  of  £10,  it  would  not  have  been  binding.  Gum- 
ming V.  Roebuck  2  is  to  the  same  effect.  The  next  case  is  that  of 
Grant  v.  Fletcher,^  in  which  there  is  nothing  to  shcAV  that  both  notes 
are  indispensable.  It  is  true  that  the  Lord  Chief  Justice  recognizes 
the  two  former  cases,  and  says  that  the  broker's  book  is  the  original ; 
but  that  decision  depends  upon  the  circumstances  of  the  case,  and 
must  be  taken  secundum  subjectam  materiam.  Indeed  it  would  be 
strange,  were  a  bought  note  uidispensable,  that  there  should  be  no 
option  to  reject  it ;  yet  in  Rucker  v.  Cammeyer  and  Goom  v.  Aflalo  * 
the  parties  were  held  responsible,  although  the  notes  were  sent  back. 
Neither  bought  nor  sale  notes  are  necessary,  as  they  do  not  form  the 
validity  of  the  contract.  Heyman  v.  Neale.^  They  are  rccpiired 
neither  by  the  common  law  nor  by  the  statute,  which  enacts  only  that 
a  note  or  memorandum  in  writing  shall  be  signed,  but  are  in  fiict 
creatures  of  custom,  of  which  there  is  no  evidence  in  this  case.  The 
entry  in  the  book  is  the  original  evidence  of  the  contract  (Grant  v. 
Fletcher),  assuming  which  Lord  EUenborough  in  Dickenson  v.  Lilwal  ® 
doubted  whether  the  bought  note  was  admissible.  This  point  how- 
ever has  since  been  decided  in  Goom  v,  Atlalo,  in  which  it  was  held 
that  the  entry  in  the  broker's  book  need  not  be  signed,  and  that  the 
bought  and  sale  notes  signed  by  the  broker  were  sufficient :  in  that 
case  both  existed,  but  it  does  not  decide  that  both  were  necessary ;  and 
the  sale  note  being  a  sufficient  memorandum  to  satisfy  the  statute  the 
rule  ought  to  be  discharged. 

Crompton,  in  support  of  the  nde.  The  first  question  is  whether 
Rowland  Roscoe  had  any  authority  to  sign  any  contract ;  and  the 
second,  supposing  him  to  have  such  authority,  whether  he  has  signed 
a  sufficient  one.  Upon  the  first  point  the  evidence  is  that  he  Avas  not 
brought  into  contact  with  the  defendants ;  and  the  authority,  if  any, 
was  conferred  upon  William  Roscoe  his  clerk.  The  case  of  Coles  u. 
Trecothick^  therefore  militates  strongly  against  the  position  con- 
tended for  on  behalf  of  the  plaintiff;   for  it  proves  that,  unless  by 

1  5  Taunt.  786;  s.  c.  1  Marsh.  355.  '^  1  Holt's  N.  V.  173. 

3  8  D.  &  R.  59  ;  s.  c.  5  B.  &  C.  436.  *  9  D.  &  K.  148 ;  s.  c.  6  B.  &  C.  117. 

6  2  Campb.  337.  «  1  Stark.  N.  P.  1'28. 

1   Uhi  sup. 


388  HENDERSON  V.    BARNEWALL.  [CHAP.  I. 

express  consent  of  the  principal,  an  authority  cannot  be  delegated  to 
a  clerk  or  imder-agent.  Supposing  the  broker  to  have  been  vested 
with  an  authority,  it  was  either  special  or  general :  if  special,  can  it 
be  delegated  ?  Such  a  doctrine  would  be  open  to  all  the  mischiefs 
which  it  was  the  object  of  the  Statute  of  Frauds  to  provide  against. 
If  a  contract  could  be  made  by  a  sub-agent,  the  terms  of  it  must  be 
communicated  to  his  principal,  and  be  reduced  into  writing  from  his 
parol  statement ;  and  thus  two  questions  might  arise :  first,  whether 
the  clerk  had  stated  the  contract  correctly;  and,  secondly,  whether  the 
principal  had  reduced  it  into  writing  correctly  from  such  statement ; 
and  so  a  double  mischief  would  arise.  In  the  case  of  Blore  v.  Sutton  ^ 
an  ao-reement  for  a  lease  evidenced  only  by  a  memorandum  in  writing 
entered  in  the  book  of  the  agent  and  signed,  not  by  the  agent-  him- 
self but  by  his  clerk,  was  held  not  to  be  sufficient  to  satisfy  the 
statute,  although  the  entry  was  approved  by  and  made  under 
the  immediate  direction  of  the  authorized  agent  and  according  to  the 
course  of  business  ;  and  it  would  be  strange,  if  a  master  cannot  dele- 
gate his  authority  to  a  clerk,  that  a  clerk  should  have  the  power 
of  transferring  his  to  his  master.  A  general  authority  is  derived  from 
a  course  of  dealing ;  and  it  would  be  difficult  to  say  that  Rowland 
Roscoe  was  clothed  with  any  such  right,  when  the  contract  was  made 
between  the  parties  themselves,  and  even  the  terms  of  it  Avere  com- 
municated to  him  by  a  sub-agent.  In  Kinnitz  v.  Surry,^  Lord  Ellen- 
borough  declared  himself  clearly  of  opinion  that  the  broker's  note 
was  not  sufficient  of  itseltj  he  being  prima  facie  the  agent  of  the 
seller,  unless  it  was  acted  upon  by  the  buyer:  here  there  is  no 
adoption  of  the  act  of  the  broker  by  the  defendants,  but  on  the  con- 
trary the  sending  of  the  sale  note  to  the  vendor  only  clearly  shews 
that  the  broker  was  employed  by  him,  and  by  him  alone.  Conceding 
however  that  he  was  the  agent  of  both  the  parties,  an  important 
question  arises,  and  upon  which  there  has  yet  been  no  decision,  viz., 
whether  one  note  is  sufficient.  It  is  the  duty  of  the  broker  to  enter 
such  a  contract  that  both  parties  may  sue  upon  it :  while  that  entry  is 
upon  his  books  they  "both  have  access  to  it ;  but  one  only  has  the 
possession  of  and  control  over  the  sale  note  ;  and  such  a  course  is 
open  as  well  to  fraud  as  to  inconvenience.  In  order  to  bind  the 
parties  there  must  be  a  mutuality  in  the  contract :  upon  which  prin- 
ciple, where  the  bought  and  sale  notes  vary,  the  contract  is  void; 
but  no  mutuality  can  be  said  to  exist  where  the  terms  of  the  contract 
are  unknown  to  one  of  the  parties ;  of  which  opinion  the  Lord  Chief 
Justice  of  the  Common  Pleas  expressed  himself  in  the  case  of  Smith 

1  3  Merriv.  237. 

2  Pal.  Princ.  &  Agent,  143 ;  s.  c.  5  Esp.  267,  in  which  latter  report  the  absence  of 
the  seller's  name  in  the  entry  is  stated  to  be  the  ground  of  Lord  EUenborough's  deci- 
sion. 


SECT.    VI.]  HENDERSON   V.    BARNEWALL.  389 

V.  Sparrow  ^  at  nisi  prius,  although  the  case  was  decided  tn  batico 
upon  another  ground. 

Alexander,  L.  C.  B.  It  appears  to  me  that  this  rule,  which  seeks 
to  set  aside  the  verdict  for  the  plaintiff  and  enter  a  nonsuit,  ought  to 
be  made  absolute.  The  Legislature  has  declared  that  sales  and  trans- 
actions of  this  description  shall  be  void  unless  they  be  reduced  into 
writing  and  signed  by  the  parties  to  be  charged  or  their  agents  law- 
fully authorized.  A  broker  is  the  agent  of  both  parties,  and  an  entry 
in  his  book  signed  by  him,  or  the  bought  and  sale  notes,  which  are 
likewise  signed  by  him,  if  they  correspond,  are  sufficient  to  bind  the 
parties;  but  the  difficulty  here  is  that  the  entry  made  by  the 
authorized  agent,  whicli  William  Roscoe  undoubtedly  was,  was  not 
signed  by  him ;  and  what  is  signed,  and  which  at  best  is  but  a  copy,  is 
subscribed  by  a  person  who  had  no  authority  whatever, 

Garrow,  B.  I  am  of  the  same  opinion.  There  are  various  ways  in 
which,  according  to  the  custom  of  trade,  goods  are  sold  to  be  delivered 
at  a  future  time ;  but  whatever  course  may  be  adopted,  the  Statute  of 
Frauds  has  provided  that  the  parties  shall  not  be  bound  by  the  con- 
tract imless  it  be  reduced  into  writing  and  signed  by  the  parties  to 
be  charged  or  their  authorized  agent.  For  the  convenience  of  trade 
brokers  are  established  in  this  country,  and  in  the  principal  commercial 
towns  on  the  continent,  under  regulations  calculated  to  insure  punc- 
tuality and  fidelity  in  their  dealings,  and  by  means  of  whom  sales  and 
negotiations  are  effected  between  parties  who  otherwise  might  liave 
remained  strangers  to  each  other.  The  course  of  trade  in  such  cases  is, 
for  the  broker,  being  employed  by  one  party,  to  sell  to  or  buy  from  the 
other,  either  in  consequence  of  a  general  authority  which  is  derived 
fi.-om  a  multitude  of  instances,  or  of  a  special  and  particular  authority 
which  is  ai^plicable  to  one  only;  and  thus  he  becomes  the  agent  of  both. 
No  ground  is  laid  in  this  case  for  presuming  a  general  authority ;  and 
if  there  were  a  special  authority,  it  was  conferred  not  upon  the  broker, 
but  upon  William  Roscoe  his  clerk :  neither  the  entry  nor  the  note  is 
signed  by  him ;  and  it  becomes  unnecessary  to  consider  the  effect  of 
the  latter,  for  upon  the  defect  of  the  broker's  authority  alone  this  rule 
must  be  made  absolute. 

HuLLOCK,  B.  I  am  of  the  same  opinion,  and  the  ground  of  that 
opinion  Js  that  the  person  who  made  the  only  entry  that  Avas  signed 
was  not  the  authorized  agent  of  the  parties.  It  appears  clearly  that 
William  Roscoe  was  authorized  by  the  defendants,  but  that  authority 
was  personal,  and  could  not  be  transferred ;  and  had  he  signed  the 
entry  it  would  in  my  opinion  have  been  a  sufficient  comi»liance  with  the 
statute,  and  have  been  binding  upon  the  parties.  The  observations 
made  by  the  learned  counsel  for  the  defendants  upon  the  difficulties  and 
mischiefs  likely  to  ensue  from  proceedings  such  as  were  adojtted  in  this 
1  2  Car.  &  P.  548 ;  s.  c.  not  s.  p.  4  Bing.  84. 


390  MACLEAN    V.    DUNN.  [CHAP.    I. 

instance  are  in  my  opinion  just ;  for  if  an  authority  could  be  delegated 
.to  one  person,  it  might  to  several,  until  the  meaning  of  the  contract 
had  been  lost  in  the  multiplicity  of  communications.  Bought  and  sale 
notes  are  not  essential  to  the  validity  of  the  contract :  the  entry  signed 
by  the  broker  is  alone  the  binding  contract,  said  Lord  Ellenborough, 
in  the  case  of  Heyman  v.  Neale,  which  doctrine  is  confirmed  by  the 
decision  in  Grant  v.  Fletcher.  Where  however  the  entry  in  the  book 
is  not  signed,  the  party  may  have  recourse  to  the  bought  and  sale  notes ; 
but  if  Rowland  Roscoe  had  no  authority  to  make  the  contract  or  the 
entry  in  the  book,  he  would  have  as  little  to  send  out  the  bought  and 
sale  notes.  The  question  therefore  as  to  the  effect  of  the  sale  note 
only  having  been  sent  does  not  arise,  as  the  broker  had  no  authority  to 
send  out  either.  I  doubt  however  whether  the  sale  note  alone  would 
be  sufficient ;  for  it  is  the  duty  of  brokers  to  make  the  contract  so  as 
to  be  binding  upon  both  parties. 

Vatjghan,  B.  It  is  admitted  on  all  hands  and  the  statute  expressly 
requires  that  the  contract  should  be  in  writing  and  signed  by  the  par- 
ties themselves  or  their  agent  duly  authorized.  The  simple  question 
therefore  is  whether  Rowland  Roscoe  can  be  considered  an  agent  so 
authorized.  The  plaintiff  has  failed  to  make  out  that  proposition;  and 
it  appears  from  the  evidence  that  William  was  invested  with  a  special 
authority  which  I  think  could  not  be  delegated,  but  that  Rowland 
Roscoe  was  a  stranger  to  the  transaction.  It  is  not  necessary  to  enter 
into  the  question  whether  the  note  would  or  would  not  be  sufficient 
had  an  authority  been  proved.  The  legitimate  mode  of  recording  the 
contract  is  by  an  entry  in  the  book  signed  by  the  broker ;  in  default  of 
that  the  case  of  Goom  v.  Aflalo  has  decided  that  the  bought  and  sale 
notes  are  sufficient  to  satisfv  the  statute.  I  agree  with  the  Lord  Chief 
Justice  of  the  King's  Bench  that  the  contract  must  be  mutual,^  but  the 
effect  of  the  sale  note  alone  having  been  sent  cannot  here  come  in 
question,  as  the  broker  whose  name  is  subscribed  to  it  had  no  author- 
ity. Upon  the  absence  of  authority  simply  I  am  of  opinion  that  the 
rule  should  be  made  absolute.  Hule  absolute. 


MACLEAN  V.  DUNN  and  WATKINS,  who  survived  AUSTIN. 
In  the  Common  Pleas,  May  19,  1828. 

[Reported  in  4  Bingham,  722.] 

This  was  a  special  action  of  assumpsit  for  not  accepting  and  paying 
for  a  quantity  of  Russian  and  Geiman  wool.     At  the  trial  before  Best, 

1  Grant  v.  Fletcher,  uU  sup. 


SECT.    VI,]  MACLEAN    V.    DUNN.  391 

C.  J.,  London  sittings  after  Michaelmas  term,  1826,  the  facts  of  the 
case,  as  far  as  they  are  material  to  the  questions  here  noticed,  were  as 
follows:  — 

The  defendants  were  carrying  on  business  in  London  as  druggists 
and  dry-salters,  when  Ebsworth,  a  London  wool-broker,  met  Watkins 
at  Manchester,  near  which  place  Watkins  lived,  and  on  the  part  of  the 
plaintiff  agreed  to  sell  the  defendants  165  bags  of  Russian  and  Gennan 
wool,  to  be  paid  for  partly  by  145  bags  of  Spanish  wool,  which  on  the 
pai't  of  the  defendants  he  agreed  to  sell  to  the  ])laintiff,  and  j)artly  by 
acceptances  or  cash,  on  certain  terms  specified  in  the  following  bought 
and  sold  note  which  he  delivered  to  the  plaintiff's  clerk  :  — 

Manchester,  2&th  March,  1825. 

D.  Maclkax,  Esq. 

SiK,  — We  have  sold  for  your  account  to  Messrs.  Dunn,  Austin,  Watkins,  & 
Co.,  166  bags  of  Russian  and  German  wool,  viz.,  [here  followed  a  specification 
of  the  wools  as  in  the  note  made  out  for  the  defendants,  amounting  to  16.5  bags 
only,  the  insertion  of  166  having  been  admitted  on  the  trial  to  have  arisen  by  mis- 
take in  the  casting]  after  deducting  the  amount  of  145  bags  of  Spanish  wool  sold 
you,  the  balance  to  be  paid  for  by  an  acceptance  at  four  months  with  2h  per 
cent,  discount,  or  in  cash  with  5  per  cent,  discount,  at  your  option.  Commission 
for  selling,  1  per  cent. 

Ebswortii  &  Badiiam. 

Manchester,  28th  March,  1825. 
D.  Maclean,  Esq. 

Sir, — We  have  bought  for  your  account  of  Messrs.  Dunn,  Austin,  Watkins, 
&  Co.,  145  bags  of  Spanish  wool,  viz.,  [here  followed  a  specification  of  145  bags 
of  wool]  the  amount  of  145  bags  to  be  deducted  from  the  165  bags  of  Russian  and 
German  wool  bought  of  you  this  day,  and  the  balance  to  be  paid  for  by  an  accept- 
ance at  four  months  at  '2h  per  cent,  discount,  or  in  cash  with  5  per  cent,  discount 
on  the  1st  July,  at  your  option.     Commission  for  purchasing,  i  per  cent. 

Ebsworth  &  Badham. 

This  bought  and  sold  note  was  written  on  one  sheet  of  paper. 

Corresponding  bought  and  sold  notes,  mutatis  mtitandis,  were  made 
out  by  Ebsworth  for  the  defendants.  In  these  notes  the  1st  of  July 
was  specified  as  the  day  for  cash  Avith  discount,  at  the  end  of  the  sold 
note  as  well  as  at  the  end  of  the  bought  note.  They  were  never 
delivered  to  either  of  the  defendants.  Ebsworth  however  made  out  a 
memorandum  of  the  contract  in  his  broker's  book,  called  a  contract 
book,  which  was  not  signed  by  him,  and  shewed  this  memorandum  to 
Watkins  on  the  day  it  was  entered,  March  28,  1825. 

Watkins  assented  to  the  contract  provided  Dunn's  consent  could  be 
obtained.  Ebsworth  had  had  no  previous  communication  with  Dunn, 
but  saw  him  about  the  beginning  of  the  next  month,  when,  as  Ebsworth 
swore  at  the  trial,  Dunn  assented  to  the  bargain,  and  said  he  was  per- 
fectly satisfied  with  whatAvas  done.  On  the  19th  of  that  month  Dunn 
told  Ebsworth  he  would  have  nothins:  to  do  Avith  the  contract,  which 
Ebsworth  communicated  to  the  j)laiutiff. 


392  MACLEAN   V.    DUNN.  [CHAP.   I. 

Plaintiff  nevertheless  in  May  addressed  the  defendants  collectively 
on  the  subject  of  the  delivery  of  the  wool,  when  Watkins  wrote  and 
referred  him  to  Ebsworth,  who  afterwards,  with  the  assent  of  Watkins 
and  in  the  name  of  the  defendants  collectively,  sold  and  delivered  68 
bags  of  the  German  wool  to  Williamson  and  Jones. 

In  Jnly  the  plaintiff  transmitted  the  invoice  of  the  165  bags  of  wool 
to  Manchester,  addressed  to  the  defendants,  and  requested  payment  of 
what  was  due  to  him. 

In  September  he  requested  them  to  receive  and  pay  for  the  remainder 
of  the  wools  undelivered,  and  gave  notice  that,  unless  the  account 
between  him  and  the  defendants  were  liquidated  by  the  1st  of  Novem- 
ber, the  wool  remaining  undelivered  would  be  put  up  to  public  sale  on 
that  day,  and  the  defendants  held  resjionsible  for  any  loss. 

The  defendants  having  declined  to  receive  them  they  were  sold  at  a 
loss.    Whereupon  the  present  action  was  commenced. 

It  was  objected  at  the  trial,  on  behalf  of  the  defendants,  that  there 
was  no  valid  contract  betAveen  the  parties,  the  broker's  book  not  hav- 
ing been  signed,  and  the  bought  and  sold  notes  not  having  been  deliv- 
ered to  each  party ;  that  Ebsworth,  having  no  authority  from  Dunn  at 
the  time  of  the  bargain,  was  not  an  agent  authorized  within  the  mean- 
ing of  the  Statute  of  Frauds ;  that  the  bought  and  sold  note  given  to 
the  plaintiff  varied  from  that  made  out  for  the  defendants,  the  latter 
specifying  the  1st  of  July  as  the  day  for  cash  with  discount  at  the  end 
of  the  sold  as  well  as  of  the  bought  note,  the  former  specifying  that 
day  only  at  the  end  of  the  bought  note ;  and  that  the  plaintiff  had 
rescinded  the  contract  by  the  delivery  of  part  of  the  wool  to  Ebsworth, 
and  the  sale  of  the  remainder. 

A  verdict  was  taken  for  the  plaintiff,  with  leave  for  the  defendants  to 
move  the  court  upon  these  points. 

Taddy,  Serjt.,  accordingly  obtained  a  rule  nisi  to  enter  a  nonsuit  or 
have  a  new  trial  on  these  and  sundry  other  questions  of  law  and  fact. 

With  respect  to  the  alleged  variance  the  court  held  that,  as  the  plain- 
tiff's bought  and  sold  note  was  all  written  on  the  same  sheet  of  paper, 
the  1st  of  July  specified  at  the  end  of  the  bought  note  must  be  taken 
to  apply  equally  to  the  contract  in  the  sold  note,  and  that  therefore  the 
instrument  corresponded  sxifficiently  with  the  bought  and  sold  note 
made  out  for  the  defendants. 

If  the  subsequent  ratification  by  Dunn  constituted  Ebsworth  by 
relation  an  agent  duly  authorized  within  the  meaning  of  the  Statute 
of  Frauds  at  the  time  of  the  contract,  a  bought  and  sold  note  having 
been  made  out  and  signed  by  him  on  the  part  of  the  defendants,  his 
delivering  it  to  them  and  his  signing  the  contract  book  would  not  be 
essential  to  the  validity  of  the  contract. 

It  is  only  necessary  therefore  to  report  what  T^as  said  on  the  points, 
whether  a  person  who   makes  a  contract   for   another  without   due 


SECT.   VI.]  MACLEAN   V.   DUNN.  393 

authority  becomes,  on  the  ratification  of  the  contract  by  the  party  to 
be  charged,  a  sufficient  agent  to  bind  him  within  the  meaning  of  the 
Statute  of  Frauds ;  and  whether  the  disposal  by  the  vendor  of  goods 
sokl,  with  a  view  to  prevent  furtlier  loss  upon  the  vendee's  refusing  to 
receive  them,  be  a  rescinding  of  the  contract. 

Wilde  and  JiusseU,  Serjts.,  for  the  plaintiff.  The  Statute  of  Frauds 
does  not  affect  the  principle  which  regulates  contracts  made  by  an 
agent,  with  respect  to  which  a  subsequent  ratification  is  equivalent  to 
a  previous  authority.  Here  there  was  not  only  such  a  ratification,  but 
the  case  is  taken  out  of  the  statute  by  a  delivery  of  the  goods.  Bulky 
goods  need  not  all  be  delivered  at  the  same  time,  but  according  to  con- 
venience ;  and  any  iincquivocal  act  of  control  over  the  portion  deliv- 
ered is  equivalent  to  a  deliveiy  and  acceptance  of  the  whole.  Chaplin 
V.  Rogers.^  In  Hinde  v.  Whitehouse  ^  even  a  constructive  delivery  by 
samples  was  held  to  vest  the  property  in  the  buyer,  and  sufficient  to 
satisfy  the  statute ;  and  from  acts  of  assent  an  authority  might  be  pre- 
sumed. Ward  V.  Evans.^  Merely  acting  on  the  agent's  order  was 
sufficient  for  that  purpose.  Kinnitz  v.  Suny.*  With  regard  to  the 
re-sale  it  Avould  not  prevent  the  plaintiff  fi'om  recovering  damages  for 
non-performance  of  the  contract,  though  perhaps  it  might  be  an  answer 
to  an  action  for  goods  sold.  Hagedorn  v.  Laing.^  In  Greaves  v.  Ashlin,' 
where  it  was  holden  that  the  contract  had  been  rescinded,  the  vendor 
re-sold  the  goods  within  a  few  days  after  he  had  sold  them,  although 
the  purchaser  had  never  refused  to  carry  the  contract  into  execution. 

Taddy  and  Spankie^  Serjts.,  contra.  Admitting  the  maxim,  "  Omnis 
ratihahitio  mandato  cequiparatur^''  under  the  Statute  of  Frauds  the 
mandatum,  where  there  is  no  delivery  of  th'e  goods,  must  be  in  writing. 
Ratification  cannot  make  a  signature. 

But  the  re-sale  rescinded  the  contract  at  all  events,  and  deprived  the 
plaintiff  of  any  right  to  sue.  Greaves  v.  Ashlin  cannot  be  distinguished 
from  the  present  case.  In  that  case  there  was  a  written  contract  for 
the  sale  of  goods;  no  time  was  specified  for  the  delivery;  but  although 
the  purchaser  had  notice  that  unless  they  were  taken  away  they  Avould 
be  re-sold,  it  was  held  he  had  no  right  on  that  account  to  re-sell 
them. 

Best,  C.  J.  It  has  been  argued  that  the  subsequent  adoption  of  the 
contract  by  Dunn  will  not  take  this  case  out  of  the  operation  of  the 
Statute  of  Frauds ;  and  it  has  been  insisted  that  the  agent  should 
have  his  authority  at  the  time  the  contract  is  entered  into.  If  such 
had  been  the  intention  of  the  Legislature,  it  would  have  been  expressed 
more  clearly ;  but  the  statute  only  requires  some  note  or  memorandum 
in  writing  to  be  signed  by  the  party  to  be  charged  or  his  agent  there- 

1  1  East,  192.  2  7  East,  558.  »  Salk.  442. 

4  Paley,  Pr.  &  Ag.  143,  note,  2d  ed.  5  6  Taunt.  162. 

6  3  Campb.  426 


394  MACLEAN   V.    DUNN.  [CHAP.    I. 

unto  lawfully  authorized^  leaving  us  to  the  rules  of  common  law  as  to 
the  mode  in  which  the  agent  is  to  receive  his  authority.     Now  in  all 
other  cases  a  subsequent  sanction  is  considered  the  same  thing  in  effect 
as  assent  at  the  time.     '■'■Omnis  ratihahitio  retrotrahitur  et  mandato 
mquiparatur ; "  and  in  my  opinion  the  subsequent  sanction  of  a  con- 
tract signed  by  an  agent  takes  it  out  of  the  operation  of  the  statute 
more  satisfoctorily  than  an  authority  given  beforehand.     Where  the 
authority  is  given  beforehand,  the  party  must  trust  to  his  agent ;  if  it 
be  given  subsequently  to  the  contract,  the  party  knows  that  all  has  been 
done  according  to  his  wishes.     But  in  Kinnitz  v.   Surry,  where  the 
broker,  who  signed  the  broker's  note  upon  a  sale  of  corn,  was  the 
seller's  agent,  Lord  EUenborough  held  that  if  the  buyer  acted  upon 
the  note,  that  was  such  an  adoption  of  his  agency  as  made  his  note 
sufficient  witliin  the  Statute  of  Frauds ;  and  in  Soames  v.  Spencer,^ 
where,  A.  and  B.  being  jointly  interested  in  a  quantity  of  oil,  A.  entered 
into  a  contract  for  the  sale  of  it  without  the  authority  or  knowledge  of 
B.,  who  upon  receiving  information  of  the  cii'cumstance  refused  to  be 
bound,  but  afterwards  assented  by  parol,  and  samples  were  delivered 
to  the  vendees,  it  was  held,  in  an  action  against  the  vendees,  that  B.'s 
subsequent  ratification  of  the  contract  rendered  it  binding,  and  that  it 
was  to  be  considered  as  a  contract  in  writing  within  the  Statute  of 
Frauds.     That  is  an  express  decision  on  the  point  that  under  the  Stat- 
ute of  Frauds  the  ratification  of  the  principal  relates  back  to  the  time 
when  the  agent  made  the  contract. 

Then  with  regard  to  the  re-sale,  it  seems  clear  to  me  that  it  did  not 
rescind  the  contract.  It  is  admitted  that  perishable  articles  may  be 
re-sold.  It  is  difficult  to  say  what  may  be  esteemed  perishable  articles 
and  what  not ;  but  if  articles  are  not  perishable,  price  is,  and  may  alter 
in  a  few  days  or  a  few  hours.  In  that  respect  there  is  no  difference 
between  one  commodity  and  another.  It  is  a  practice  therefore  founded 
on  good  sense  to  make  a  re-sale  of  a  disputed  article,  and  to  hold  the 
original  contractor  responsible  for  the  difference.  The  practice  itself 
affords  some  evidence  of  the  law,  and  we  ought  not  to  oppose  it  excejit 
on  the  authority  of  decided  cases.  Those  which  have  been  cited  do 
not  apply.  Where  a  man,  in  an  action  for  goods  sold  and  delivered, 
insists  on  having  from  the  vendee  the  price  at  which  he  contracted  to 
dispose  of  his  goods,  he  cannot  perhaps  consistently  with  such  a 
demand  dispose  of  them  to  another ;  but  if  he  sues  for  damages  in  con- 
sequence of  the  vendee's  refusing  to  complete  his  contract,  it  is  not 
necessary  that  he  should  retain  dominion  over  the  goods :  he  merely 
alleges  that  a  contract  was  entered  into  for  the  purchase  of  certain 
articles,  that  it  has  not  been  fulfilled,  and  that  he  has  sustained  damage 
'  in  consequence.  There  is  nothing  in  this  which  requires  that  the 
property  should  be  in  his  hands  when  he  commences  the  suit ;  and  it 

1  Dow.  &  Ry.  32. 


SECT.    VI.]  BIRD   V.   BOULTER.  395 

is  required  neither  by  justice   nor  by  the  practice  of  tlie  mercantile 
world. 

In  actions  on  the  wan-anty  of  a  horse  it  is  the  constant  practice  to 
sell  the  horse,  and  to  sue  to  recover  the  difference.  The  usage  in  every 
branch  of  trade  is  equally  against  the  objection  which  has  been  raised 
on  the  part  of  the  defendants.  It  is  urged  indeed  that  in  contracts 
entered  into  by  tlie  p]ast  Iiulia  Company  the  power  of  re-sale  is  ex- 
pressly provided  for  in  case  the  vendee  shoiild  refuse  to  perform  his 
contract.  That  is  only  ex  ahundanti  cmitela,  and  it  has  never  been 
decided  that  a  re-sale  of  the  goods  is  a  bar  to  an  action  for  damages 
for  non-performance  of  a  contract  to  purchase  them :  the  contrary  has 
been  held  at  nisi  }:>rius.  But  without  referring  to  a  nisi  priiis  case 
as  authority,  we  are  anxious  to  confirm  a  rule  consistent  with  con- 
venience and  law.  It  is  most  convenient  that  when  a  party  refuses  to 
take  goods  he  has  purchased,  they  should  be  re-sold,  and  that  he  should 
be  liable  to  the  loss,  if  any,  upon  the  re-sale.  The  goods  may  become 
worse  the  longer  they  are  kept ;  and  at  all  events  there  is  the  risk  of 
the  price  becoming  lower.  Hide  discharged} 


BIRD  V  BOULTER 
In  the  King's  Bench,  January  17,  1833. 

[Reported  in  4  Bamewall  Sf  Adolphus,  443.] 

Assumpsit  for  goods  sold  and  delivered,  and  goods  bargained  and 
sold.  Plea,  the  general  issue.  At  the  trial  before  Littledale,  J.,  at  the 
Hereford  spring  assizes,  1832,  it  appeared  that  the  goods  in  question 
(wheat,  the  property  of  one  Smith)  were  a  lot  sold  at  an  auction,  and 
knocked  down  to  the  defendant  by  the  plaintiff,  who  was  the  auction- 
eer, at  a  price  exceeding  £10.  The  course  pursued  at  this  sale  was 
that  the  parties  as  usual  signified  their  biddings  to  the  auctioneer,  who 
repeated  them  aloud;  and  when  the  hammer  fell,  one  Pitt,  who 
attended  as  the  auctioneer's  clerk,  called  out  the  name  of  the  pur- 
chaser, and  if  the  party  assented  made  an  entry  accordingly  in  the 
sale-book.  In  the  present  instance  the  auctioneer  having  named  the 
defendant  as  the  purchaser,  Pitt  said  to  him,  "  Mr,  Boulter,  it  is  your 
wheat ; "  the  defendant  nodded,  and  Pitt  made  the  entry  in  his  sight, 
he  being  then  within  the  distance  of  three  yards.  The  question  was, 
whether  a  note  or  memorandum  of  the  bargain  had  been  made,  pursu- 
ant to  29  Car.  2,  c.  3,  §  17,  by  the  party  to  be  charged  or  his  agent 

1  Park,  J.,  took  no  part  in  the  hearing  or  decision  of  the  case. 


396  BIRD   V.    BOULTER.  [CHAP.,  I. 

thereunto  lawfolly  authorized.  A  verdict  was  taken  for  the  plaintiiF, 
and  leave  given  to  move  to  enter  a  nonsuit.  A  rule  nisi  having  been 
obtained  for  that  purpose, 

The  Solicitor- General^  (with  whom  was  Whately)  now  shewed  cause. 
It  is  still  perhaps  vexata  qucestio  whether  sales  by  auction  are  within 
the  17th  section  of  the  Statute  of  Frauds  at  all,^  but  it  is  not  necessary 
to  discuss  that  point.  The  objection  taken  on  the  other  side  was  that 
under  the  17th  section  one  contracting  party  cannot  constitute  the 
other  his  agent  to  sign  the  memorandum  (which,  it  was  said,  was  the 
effect  of  the  present  transaction)  ;  and  Wright  v.  Dannah  ^  and  Fare- 
brother  V.  Simmons*  were  cited.  In  the  first  of  those  cases  Lord 
Ellenborough  held  that  the  agent  who  signed  the  memorandum  must 
be  a  thii'd  person,  and  not  one  of  the  contracting  .parties;  and  in  the 
other,  Abbott,  C.  J.,  referring  to  Wright  v.  Dannah,  held  that  an  auc- 
tioneer's signature  was  not  sufficient  where  he  sued  as  one  of  the  par- 
ties to  the  contract.  But  the  doctrine  of  these  cases  is  not  borne  out 
by  the  words  of  the  statute ;  and  at  common  law  there  is  nothing  to 
prevent  one  contracting  party  from  being  the  agent  of  the  other;  an 
obligor,  for  instance,  from  giving  an  obligee  a  power  of  attorney  to 
execute  a  bond  for  him  ;  a  lessee  from  executing  a  lease  as  attorney  of 
the  lessor ;  a  party  from  accepting  a  bill  by  procuration,  payable  to  his 
own  order ;  assuming  the  authority  in  each  case  to  be  complete,  which 
would  be  matter  of  evidence.  It  was  admitted  here  that  Smith  the 
owner  of  the  goods  might  have  maintained  the  action.  But  the  defend- 
ant is  either  bound  by  the  contract  originally,  or  not  bound :  if  he  is 
bound,  it  does  not  matter  by  whom  the  action  is  brought,  so  that  it  is 
a  party  entitled  to  enforce  the  contract  by  action ;  and  this  was  the 
view  taken  by  the  learned  judge  at  the  trial.  But  there  is  no  need  to 
contest  the  cases  cited.  Here  the  memorandum  was  not  signed  by  the 
auctioneer  who  sues,  but  by  another  party,  Pitt,  who  signed  the  con- 
tract by  the  defendant's  immediate  authority.  If  it  is  rightly  held  that 
a  contracting  party  cannot  be  the  agent  to  sign  under  §  17,  that  restric- 
tion will  surely  not  be  extended  to  his  clerk.    The  court  here  called  upon 

Ludlow,  Serjt.,  and  Justice,  contra.  To  decide  in  favor  of  the  plain- 
tiff, the  court  must  overrule  Farebrother  v.  Simmons.^  It  is  not  dis- 
puted that,  if  Smith  had  sued,  an  entry  by  the  auctioneer  would  have 
been  a  sufficient  memorandum  to  bind  the  purchaser ;  so  also  would  an 
entry  by  his  clerk.  In  Henderson  v.  Barnewall,^  Hullock,  B.,  observed 
that  "  an  auctioneer's  clerk,  who  writes  down  the  name  of  the  buyer  in 
his  presence,  is  the  agent  of  both  parties."  But  then,  whether  the  auc- 
tioneer or  the  clerk  sign,  the  same  objection  arises,  that  the  memoran- 
dum is  signed  by  one  of  the  contracting  parties,  who  is  plaintiff  in  the 

1  Sir  J.  Campbell.  —  Ed. 

2  But  see  Kenworthy  v.  Schofield,  2  B.  &  C.  945.  s  2  Campb.  203. 
*  6  B.  &  A.  333.                      6  5  B.  &  A.  333.  6  i  y.  &  J.  389. 


SECT.    VI.]  BIRD    V.    BOULTER.  397 

suit;  for  the  clerk's  signature  is  that  of  his  master.     [Littledale,  J. 
Then  you  would  say  that  an  auctioneer  can  in  no  case  bring  an  action 
like  this  in  his  own  name.]    He  is  not  obliged  to  sue  :  the  vendor  may. 
If  the  auctioneer  makes  himself  the  plaintiif,  he  must  take  the  conse- 
quent disadvantages.     [Taunton,  J.     May  not  the  vendor  have  two 
agents,  —  one  to  extol  the  commodity,  the  other  to  do  the  mechanical 
work  of  making  the  memorandum  in  the  sale-book  ?]    The  latter  is  an 
essential  part  of  the  auctioneer's  duty :  the  clerk  in  doing  it  represents 
him ;  and  it  was  pro^■ed  in  this  case  that  Pitt  was  the  clerk  and  ser- 
vant of  Bird.     His  recei])t  for  money  would  have  been  that  of  Bird, 
and  would  have  charged  Bird,  and  not  Pitt  himself.     Edden  v.  Read.^ 
The  auctioneer  in  this  case,  on  knocking  down  the  lot,  says,   "It  is 
Mr.  Boulter's"  (the  defendant),  and  the  clerk  writes;  that  is  in  effect 
that  the  auctioneer  Avrites  by  the  hand  of  his  clerk.     If  not,  where 
is  the  memorandum  by  an  agent  lawfully  authorized?  for  there  was  no 
attempt  at  the  trial  to  establish  a  distinct  agency  in  the  clerk.     And  if 
the  signature  is  to  be  made  available  as  that  of  the  auctioneer  sfiven 
by  the  hand  of  his  clerk,  Wright  v.  Dannah  -  and  Farebrother  v.  Sim- 
mons^ apply.     [Pattesox,  J.     In  Blore  v.  Sutton*  the  signature  of 
an  agent's  clerk  acting  for  and  under  the  direction  of  the  agent,  in  a 
case  within  §  4  of  the  statute,  was  held  not  to  be  a  memorandum  by 
the  authorized  agent  of  the  principal.]     The  dictum  of  Hullock,  B.,  in 
Henderson  v.  Barnewall '"  contradicts  this.     [Patteson,  J.     That  was 
not  called  for  by  the  case  before  the  court.]     In  a  sale  by  auction  the 
knocking  down  constitutes  the  contract :  the  entry  is  a  requisite  super- 
added by  the  statute,  but  it  is  not  a  distinct  transaction.     [Little- 
dale,  J.     May  it  not  be  said  that  the  clerk  is  constituted  a  deputy  by 
all  the  room  ?]     He  goes  to  the  sale  in  a  definite  character,  hired  to 
act  for  a  particular  master  :  he  could  not  sue  any  other  person  for  work 
and  labor ;  and  the  auctioneer  might  sue  for  labor  done  by  his  clerk. 
The  clerk  acts  as  a  mere  automaton  under  the  direction  of  the  auc- 
tioneer. 

Denman,  C.  J.  I  think  this  case  is  distinguishable  from  AVright  v. 
Dannah  and  Farebrother  tj.  Simmons;  and  it  appears  to  me  that  the 
clerk  was  not  acting  merely  as  an  automaton,  but  as  a  person  known  to 
all  engaged  in  the  sale,  and  employed  by  any  who  told  him  to  put  down 
his  name.  Without  therefore  interfering  with  the  cases  that  have  been 
cited,  I  think  this  rule  must  be  discharged. 

Littledale,  J.  With  respect  to  the  cases  relied  upon  in  support  of 
the  rule,  there  is  certainly  a  difficulty  in  saying  that  a  purchaser  shall 
be  bound  by  a  contract  or  not,  as  the  action  is  brought  by  one  party 
or  another.     It  is  indeed  irregular  that  the  real  buyer  or  real  seller 

1  3  Campb.  339.  2  2  Carapb.  203.  3  5  b.  &  A.  833. 

<  3  Mer.  237.     See  Coles  v.  Trecothick,  9  Ves.  jun.  235. 
5  1  Y.  &  J.  389. 


398  BIRD   V.    BOULTER.  [CHAP.    I. 

should  make  the  other  party  his  agent  to  sign  a  memorandum  under 
the  statute ;  but  when  that  is  done  through  a  third  person,  the  objec- 
tion is  removed.  An  auctioneer  is  enabled  by  law  to  sue  the  pur- 
chaser, but  according  to  the  rule  insisted  upon  for  the  defendant  an 
action  of  this  kind  could  not  be  maintained  by  the  auctioneer.  I  think 
that  a  clerk  employed  as  Pitt  was  in  this  case  must,  in  an  action  brought 
by  the  auctioneer,  be  considered  as  his  agent  for  the  jjurpose  of  taking 
down  the  names,  and  also  as  the  agent  of  the  several  persons  in  the 
room  for  the  same  purpose,  and  to  prevent  the  necessity  of  each  pur- 
chaser coming  to  the  table  to  make  the  entry  for  himself. 

Taunton,  J.  I  very  much  agree  with  my  brother  Littledale  as 
to  the  tlifficulty  in  Farebrother  v.  Simmons.^  But  there  is  no  neces- 
sity to  overrule  that  case.  The  Chief  Justice  there  says  in  the 
close  of  his  judgment :  "  Wright  v.  Dannah  fortifies  the  conclusion 
at  which  I  have  arrived,  viz.,  that  the  agent  contemplated  by  the 
Legislature,  who  is  to  bind  a  defendant  by  his  signature,  must  be 
some  third  person,  and  not  the  other  conti'acting  party  on  the  record." 
It  is  a  sufficient  distinction  between  that  case  and  this,  that  in  the 
former  the  auctioneer  whose  signature  w.as  relied  ujion  was  the  party 
suing :  here  the  signature  is  by  a  third  person.  I  would  however  go 
farther  than  this.  Under  the  circumstances  I  think  Pitt  may  be  con- 
sidered to  have  been  the  agent  of  the  vendor.  It  is  not  necessary  to 
suppose  that  the  vendor  rested  a  particular  confidence  in  the  auctioneer 
for  the  purpose  of  putting  down  the  names  in  the  sale-book.  He  may 
be  taken  to  have  constituted  that  person  his  agent  for  the  making  of 
such  entries  whom  the  auctioneer  might  choose  to  appoint.  If  so, 
Pitt  was  the  agent  for  the  vendor,  and  also  for  the  persons  in  the 
room  who  saw  him  acting  as  he  did  under  the  auctioneer,  and  by 
their  acquiescence  constituted  him  their  agent  for  the  business  which 
they  saw  him  jjerfbrming.  At  all  events  he  is  a  third  person,  and  not 
a  contracting  party  on  the  record. 

Pattesox,  J.  It  is  not  necessary  here  to  oveiTule  Farebrother  v. 
Simmons.  It  may  be  correct  to  say,  as  there  laid  down,  that  the 
signature  must  be  by  a  third  person,  and  not  by  a  contracting  party  on 
the  record.  Here  it  was  so.  According  to  the  evidence  Pitt  was 
seen  by  all  the  pai'ties  at  the  sale  making  the  entries  in  the  sale-book : 
it  was  inconvenient  that  each  purchaser  should  come  to  the  table  for 
that  purpose,  and  by  nodding  as  the  names  were  called  they  author- 
ized him  to  act  as  he  did.  Hide  discharged. 

1  5  B.  &  A.  333. 


SECT.    VI.]  ACEBAL   V.   LEVY.  399 

ACEBAL  V.  LEVY  and   Another. 
In   the   Common   Pleas,  January   13,   1834. 

[Reported  in  10  Bingham,  376.] 

The  fourth  count  of  the  declaration  stated  that  the  defendants  bar- 
gained for  and  bought  of  the  ])laintiff,  and  the  plaintiff  at  the  special 
instance  and  request  of  the  defendants  sold  to  the  defendants  a  cer- 
tain large  quantity,  to  wit,  1000  burrels  of  nuts,  at  a  certain  price  or 
value,  to  Avit,  at  the  then  usual  and  common  shipping  "price  for  nuts  at 
the  port  of  Gijon  in  the  kingdom  of  Spain,  to  be  delivered  by  the 
plaintiff  to  the  defendants  at  London  on  the  arrival  of  the  said  last-men- 
tioned nuts  from  the  port  of  Gijon  at  London,  and  to  be  paid  for  by 
the  defendants  to  the  plaintiff  on  the  delivery  thereof,  and  the  freight 
for  the  carriage  thereof  to  be  paid  by  the  defendants.     And  in  consid- 
eration thereof,  and  that  the  plaintiff  at  the  like  special  instance  and 
request  of  the  defendants  would  deliver  the  said  quantity  of  nuts  at 
the   place   aforesaid,   they   the  defendants    undertook   and   faithfully 
promised  the  plaintiff  to  accept  the  said  nuts  of  and  from  him  the 
plaintiff,  and  to  pay  him  for  the  same  on  the  delivery  thereof  to  them 
the  defendants.     And  the  plaintiff  then  averred  that  the  usual  and 
common  shipi^ing  price  and  value  of  the  said  nuts  at  the  port  of 
Gijon,  at  the  time  of  the  making  of  the  last-mentioned  promise  and 
undertaking  bv  the  defendants,  was  at  and  after  the  rate  of  £3  Is.  Ad. 
for  each  and  every  barrel  of  the  said  nuts  ;  and  although  the  plaintiff 
afterwards  and  on  the  arrival  of  the  last-mentioned  nuts  at  London 
from  Gijon,  to  wit,  on  the  12th  day  of  October,  at,  &c.,  was  ready  and 
willing  and  then  and  there  tendered  and  offered  to  deliver  the  said 
nuts  to  the  defendants,  and  then  and  there  requested  the  defendants 
to  accept  the  same,  and  to   pay  him   the   plaintiff  for  the  same  as 
aforesaid,  yet  the  defendants,  not  regarding  their  said  promise    and 
undertaking,  but   contriving  and   intending   to  deceive  and  defraud 
the   plaintiff  in  that  respect,   did  not   nor   would,    at  the  said   time 
when  they  were  so  requested  or  at  any  time  before  or  afterwards, 
accept  the  said  last-mentioned  nuts  or  any  part  thereof  of  or  from 
him  the  plaintiff,  or  pay  him  for  the  same  or  any  part  thereof  at  the 
rate  or  price  last  aforesaid,  but  then  and  there  wholly  neglected  and 
refused  so  to  do. 

There  was  also  a  count  for  goods  bargained  and  sold,  goods  sold 
and  delivered,  and  the  common  money  counts.     Plea,  general  issue. 

At  the  trial  before  Tindal,  C.  J.,  it  a})peared  that  ^I'Aiulrcw  a 
broker,  who  had  for  several  years  received  and  sent  orders  to  the 
plaintiif  at  Gijon  in  Spain  for  nuts,  tfcc,  in  1831   chartered   the  Active 


400  ACEBAL   V.    LEVY.  [CHAP.    I. 

for  a  cargo  of  nuts  at  his  own  risk.  He  then  ofi'ered  the  Active  and 
her  cargo  to  the  defendants,  who  accepted  the  offer,  and  directed  him 
to  procure  the  plaintiff  to  send  them  a  cargo  of  nuts.  Thereupon  he 
wrote  to  the  plaintiff  a  letter  of  the  date  of  the  29th  of  July,  1831,  as 
follows :  "  I  have  transferred  the  Active  to  Messrs.  Levy  &  Salmon, 
for  whom  you  will  load  her  in  place  of  consigning  her  to  me.  They 
are  to  pay  me  for  freight  £120,  and  £10  10s.  gratuity,  which  please  to 
insert  in  the  bill  of  lading." 

It  appeared  from  another  passage  in  the  same  letter  that  the  Active 
was  to  be  loaded  with  a  cargo  of  nuts. 

The  Active  arrived  in  London  about  the  middle  of  October,  loaded 
with  nuts.  The  invoice  and  bill  of  lading  were  sent  to  the  defend- 
ants, who  returned  them,  refusing  to  accept  the  nuts  or  a  bill  of  ex- 
change for  £1267  10s.  Id.  which  the  plaintiff  had  drawn  on  them  for 
the  price.  M' Andrew  sold  the  nuts  afterwards,  for  whom  it  might 
concern,  at  the  best  price  he  could  procure.  The  nuts  produced  £211 
short  of  the  invoice  of  the  cargo,  which,  pursuant  to  M' Andrew's  in- 
structions to  the  plaintiff,  was  made  out  according  to  the  shipping 
price  of  nuts  at  Gijon  in  October,  1831. 

The  defendants  called  no  witnesses,  but  took  the  following  objec- 
tions to  the  plaintiff's  claim  :  first,  that  there  was  no  sufficient  memo- 
randum or  agreement  in  writing  signed  by  the  parties  or  their  agents, 
as  required  by  the  17th  section  of  the  Statute  of  Frauds  ;  secondly, 
that  there  was  at  all  events  a  variance  between  the  fourth  count  —  the 
only  special  count  relied  on  —  and  the  agreement  produced  at  the  trial 
in  support  of  it,  the  agreement  stating  nothing  about  the  shipping  price 
or  the  payment  of  freight  to  the  plaintiff;  thirdly,  that  that  agreement 
would  not  support  the  common  count  on  a  quantum  valebant;  and, 
fourthly,  that  the  plaintiff  had,  by  his  oAvn  act  in  re-selling  tlie  goods 
before  the  action  was  brought,  precluded  himself  from  recovering  on  a 
count  for  goods  bargained  and  sold  to  the  defendants.  Upon  these 
objections  the  plaintiff  was  nonsuited,  with  leave  to  move  to  set  aside 
the  nonsuit  and  enter  a  verdict  for  the  amount  of  his  loss, 

Wilde,  Serjt.,  accordingly  having  obtained  a  rule  nisi  to  that  effect, 

Jones  and  Stephen,  Serjts.,  shewed  cause  in  Michaelmas  term.  First, 
the  agreement  contained  in  the  letter  of  July  29th  is  not  signed  by 
the  party  nor  by  an  agent  duly  authorized,  for  M' Andrew  does  not 
appear  to  have  been  appointed  agent  to  the  defendants  by  any  writing. 
[TiNDAL,  C.  J.  The  authority  of  the  agent  to  sign  for  his  principal  may 
be  conferred  orally  as  well  as  by  writing.]  Then  the  agreement  con- 
tained in  the  letter  specifies  neither  quantity  nor  price  ;  and  the  admis- 
sion of  oral  evidence  to  supply  those  ingredients  of  a  bargain  where 
the  contract  has  not  been  carried  into  execution  would  be  as  mischiev- 
ous and  as  inconsistent  Avith  the  spirit  of  the  Statute  of  Frauds  as 
admitting  it  to  prove  the  existence  of  the  bargain. 


SECT.    VI.]  ACEBAL   V.   LEVY.  401 

Secondly,  the  agreement  contained  in  the  letter  being  inoperative 
under  the  Statute  of  Frauds  and  not  con-esponding  with  the  agree- 
ment proved  at  the  trial  and  set  out  in  the  fourth  count,  the  plaintiff 
cannot  resort  to  the  comnion  count  for  goods  bargained  and  sold.  In 
Elmore  v.  Kingscote,^  where  there  was  an  agreement  for  a  specific 
price,  it  was  held  that  the  plaintiff  could  not,  by  producing  a  note  in 
writing  which  was  silent  as  to  price,  x-ecover  on  a  quantum  valebant  y 
and  the  same  principle  was  established  in  Cooj^er  v.  Smith.-  The  vari- 
ance is  material  (S])rowle  v.  Legge^),  and  cannot  be  amended,  the 
statute  permitting  amendment  in  such  a  case  having  been  passed  sub- 
sequently to  the  commencement  of  this  action. 

And  there  has  been  no  delivery,  not  even  by  sample  as  in  Iliude  v. 
Whitehouse,^  to  take  the  case  out  of  the  Statute  of  Frauds. 

Thirdly,  the  vendor  having  re-sold  the  goods  cannot  recover  the 
price  from  the  original  vendee  on  a  count  for  goods  bargained  and  sold, 
but  is,  if  aggrieved,  confined  to  an  action  for  damages  against  the 
defendant  for  refusing  to  carry  his  contract  into  efi'ect.  Maclean  v. 
Dunn,^  Hagedorn  v.  Laing.° 

Wilde.  The  Active  having  been  transferred  by  M'Andrew  to  the 
defendants,  the  cargo  on  being  put  on  board  was  delivered  to  them  in 
that  ship  as  their  floating  warehouse.  The  question  therefore  on  the 
Statute  of  Frauds  does  not  arise,  and  the  plaintift'  may  well  recover  on 
the  count  for  goods  bargained  and  sold.  Bohtlingk  y.  Inglis,"  Ogle  v. 
Atkinson.^ 

But  even  admitting  the  delivery  to  have  been  insufficient,  there  was 
a  sufficient  note  or  memorandum  of  the  bargain  to  satisfy  the  requisi- 
tions of  the  Statute  of  Frauds.  That  statute  does  not  require  that  all 
the  details  of  the  contract  as  to  quantity  and  price  shall  be  reduced  to 
writing,  but  merely  a  note  or  memorandum  of  the  contract.  Contracts 
are  often  made  without  any  stipulation  as  to  price,  and  in  such  case  it 
must  be  open  to  the  party  to  shew  what  is  the  reasonable  jDrice.  The 
reasonable  price  here  was  the  shipping  price  in  the  exporting  country : 
the  defendants  were  to  pay  the  freight  of  the  Active,  though  not  to  the 
plaintitt',  and  the  fourth  count  alleges  no  more  than  that  it  was  to  be 
paid  by  them.  There  is  therefore  no  variance  between  tliat  count  and 
the  contract  proved.  At  all  events  the  comit  may  be  amended  under 
3  &  4  W.  4  c.  42  ;  and  the  plaintiff  here  may  recover  the  price  of  the 
goods  on  a  count  for  goods  bargained  and  sold,  although  he  has  re-sold 
them ;  for  they  were  not  re-sold  with  a  view  to  rescind  the  contract, 
but  only  to  diminish  loss.  The  re-sale  is  only  an  obstacle  to  an  action 
for  the  price  where  it  is  evidentiary  of  an  animus  to  rescind  the  con- 

1  5  B.  &  C.  583.  2  15  East,  103.  3  1  B.  &  C.  16. 

4  7  East,  558.  »  4  Biug.  722.  «  6  Taunt.  162. 

•?  3  East,  381.  »  5  Tauut.  759. 
VOL.  I.  26 


402  ACEBAL    V.   LEVY.  [CHAP.    I. 

tract ;  as  in  Hagecloi'n  v.  Laing,  Hopkins  v.  Vaughan,^  Hore  v.  Milner,'^ 
Mertens  v.  Adcock,^  and  cases  of  that  description. 

Cur.  adv.  vult. 

TiiSTDAL,  C.  J.  The  questions  which  have  been  argued  before  us 
arise  upon  two  only  of  the  counts  of  the  declaration,  —  the  fourth  spe- 
cial count  and  the  count  for  goods  bargained  and  sold ;  for  as  to  the 
other  special  counts  it  is  properly  admitted  that  they  are  not  suppoi-ted 
by  the  evidence  produced  at  the  trial ;  and  the  count  for  goods  sold 
and  delivered  is  clearly  inapphcable  to  a  case  where  the  plaintiff  has 
himself  re-sold  the  goods  before  the  action  is  commenced. 

The  objections  taken  on  the  part  of  the  defendants  to  the  right  of 
the  plaintiff  to  recover  on  the  fourth  special  count  are,  first,  that  there 
is  no  sufficient  memorandum  or  agi-eement  in  writing  signed  by  the 
parties  or  their  agents  to  take  the  case  out  of  the  operation  of  the  17th 
section  of  the  Statute  of  Frauds ;  secondly,  that  there  is  at  all  events 
a  variance  between  the  fourth  count  and  the  agreement  produced  at 
the  trial  in  support  of  it.  And  as  to  the  count  for  goods  bargained 
and  sold  it  is  objected  that  the  plaintiff  has,  by  his  own  act  in  re-selling 
the  goods  before  the  action  is  brought,  precluded  himself  from  main- 
taining that  form  of  action. 

The  only  memorandum  in  writing  on  which  the  plaintiff  relied  at 
the  trial  is  contained  in  a  letter  addressed  by  M' Andrew  and  Son  (who 
for  this  purpose  we  assume  upon  the  evidence  at  the  trial  to  have  been 
the  agents  of  both  parties  lawfully  authorized)  to  the  plaintiff.  That 
letter,  which  bears  date  29th  July,  1832,  contained  the  folio Aving  pas- 
sage, viz. :  "  We  have  transferred  the  Active  to  Messrs.  Levy  and 
Salmon,  for  whom  you  will  load  her  in  place  of  consigning  her  to  us. 
They  are  to  pay  us  for  freight  £120,  and  £10  10s.  gratuity,  which  please 
insert  in  the  bill  of  lading."  It  appears  also  fi'om  another  part  of  the 
same  letter,  and  we  think  quite  sufiiciently,  that  the  Active  was  to  be 
loaded  with  a  cargo  of  nuts.  So  that  the  memorandum  cannot  be 
objected  to  on  the  ground  that  it  is  silent  as  to  the  subject-matter  of 
the  contract.  But  the  objection  taken  on  the  part  of  the  defendants 
is,  that  no  terms  are  specified  in  this  memorandum  as  to  the  price  at 
which  the  nuts  were  to  be  supplied  to  the  defendants ;  and  that  there 
can  be  no  sufficient  contract  for  the  sale  of  goods  unless  the  price  forms 
one  of  the  terms  in  the  written  memorandum.  To  this  the  plaintiff 
answers,  that  if  the  memorandum  imports,  as  it  does,  a  contract  for  the 
sale  by  the  plaintiff  to  the  defendants  of  a  cargo  of  nuts  by  the  ship 
Active,  as  no  price  is  stated  to  have  been  agreed  upon,  the  law  pre- 
sumes the  agreement  to  have  been,  or  assumes  as  a  condition  of  the 
contract,  that  the  price  was  to  be  a  reasonable  one.  So  that  the  case 
must  be  considered  as  if  the  letter  had  itself  contained  an  express  stip- 
1  12  East,  398.  2  Pgake,  N.  P.  58.  3  4  Esp.  251. 


SECT.    VI.]  ACEBAL   V.   LEVY.  403 

ulation  that  the  agreement  was  for  a  sale  at  a  reasonable  ]mce  ;  and 
that  if  the  memorandum  had  contained  such  express  stipulation,  no 
doubt  but  parol  evidence  might  have  been  admitted  to  shew  the 
amount  of  such  reasonable  price. 

Whether  in  all  cases  of  an  executory  contract  of  purchase  and  sale, 
where  the  parties  are  altogether  silent  as  to  the  i)rice,  the  law  will  sup- 
ply the  want  of  any  agreement  as  to  price  by  inferring  that  the  parties 
must  have  intended  to  sell  and  to  buy  at  a  reasonable  price,  may  be  a 
question  of  some  difficulty.  Undoubtedly  the  law  makes  that  infer- 
ence where  the  contract  is  executed  by  the  acceptance  of  the  goods  by 
the  defendants,  in  order  to  prevent  the  injustice  of  the  defendants'  tak- 
ing the  goods  Avithout  l)aying  for  them.  (See  note  2  of  Mr.  Serjt. 
Williams  to  Webber  v.  Tivill,  2  Saund.  121.)  But  it  may  be  question- 
able whether  the  same  reason  applies  to  a  case  where  the  contract  is 
executory  only,  and  where  the  goods  are  still  in  the  possession  or  under 
the  control  of  the  seller. 

It  a])pears  however  to  us  to  be  unnecessary  to  decide  this  question 
upon  the  present  occasion.  For  the  fourth  special  count  is  framed  upon 
an  agreement  that  the  plaintiff  sold  and  the  defendants  bought  the  nuts 
"at  the  then  shipping  price  at  Gijon  in  Spain,"  to  be  delivered  to 
defendants  on  arrival  in  London,  and  to  be  paid  for  by  defendants  on 
delivery.  And  that  such  was  in  fact  the  real  contract  between  the  par- 
ties was  proved  by  the  parol  evidence  at  the  trial.  But  such  a  contract 
is  manifestly  a  very  different  one  from  that  which  is,  as  the  plaintiff 
contends,  to  be  inferred  by  law  from  the  written  memorandum.  A 
contract  to  furnish  a  cargo  at  a  reasonable  price  means  such  a  price  as 
the  jury  upon  the  trial  of  the  cause  shall  under  all  the  circumstances 
decide  to  be  reasonable.  This  price  may  or  may  not  ao-ree  with  the 
current  price  of  the  commodity  at  the  port  of  shipment  at  the  precise 
time  when  such  shipment  is  made.  The  current  price  of  the  day  may 
be  highly  unreasonable  from  accidental  circumstances,  as  on  account  of 
the  commodity  having  been  purposely  kept  back  by  the  vendor  him- 
self, or  with  reference  to  the  price  at  other  ports  in  the  immediate 
vicinity,  or  from  various  other  causes.  It  is  enough  therefore  to  say 
that  the  contract  set  out  in  the  fourth  count  is  not  a  contract  which  is 
proved  by  any  part  of  the  letter  of  the  29th  of  July,  and  that  it  is  at 
variance  with  the  terms  which,  as  the  plaintiff  contends,  ought  to  be 
imported  into  the  written  contract  by  operation  of  law. 

The  present  case  however  does  not  rest  here.  It  was  proved  at  the 
trial  by  parol  evidence  that  the  actual  bargain  made  was  for  a  sale  at 
the  current  price  at  the  shipping  port.  This  case  therefore  falls  within 
the  principle  laid  down  by  the  judges  in  Cooper  v.  Smith,^  and  the 
decision  in  Elmore  v.  liingscote ;  ^  namely,  that  where  it  is  shewn  by 
parol  evidence  there  has  been  an  agreement  for  sale  at  a  specific  price, 
1  15  East,  103.  2  5  B.  &  C.  583. 


404  ACEBAL   V.   LEVY.  [CHAP.    I. 

the  plaintiff  cannot,  on  producing  a  note  in  writing  which  is  altogethei* 
silent  as  to  price,  recover  on  a  count  upon  a  sale  on  a  quantum  valebant. 

In  the  course  of  the  argument  on  the  part  of  the  plaintiff  another 
point  was  adverted  to,  although  not  much  relied  on,  viz.,  that  there 
had  been  such  an  acceptance  of  these  nuts  by  the  defendants  as  to  take 
the  case  out  of  the  Statute  of  Frauds.  But  the  criterion  to  be  found 
in  many  of  the  cases  as  to  acceptance  or  non-acceptance  of  goods  sold 
is  this :  Have  the  circumstances  been  such  that  the  defendant  has  pre- 
cluded himself  from  taking  any  objection  to  the  quality  of  the  goods 
sold  ?  Here  it  would  be  impossible  to  contend  that,  merely  in  conse- 
quence of  the  packages  being  received  on  board  the  ship  chartered  by 
the  defendants,  they  had  obliged  themselves  to  take  them,  if  on  their 
arrival  they  had  appeared  altogether  unmerchantable.  We  think  there- 
fore the  nuts  in  question  cannot  be  considered  as  having  been  accepted 
by  the  defendants ;  a  question  indeed  which  seems  scarcely  to  arise 
upon  a  covxnt  where  the  breach  is  assigned  for  non-acceptance  of  the 
goods  sold. 

The  ground  upon  which  we  determine  that  the  plaintiff  cannot 
recover  on  the  fourth  count  will  equally  prevent  his  recovering  on  the 
count  for  goods  bargained  and  sold  for  a  reasonable  price.  For  in 
order  to  recover  on  that  count  a  sufficient  note  or  memorandum  of 
the  contract  of  sale  at  a  reasonable  price  is  just  as  necessary  as  on  the 
sj^ecial  count.  But  for  the  reasons  already  given  the  note  produced 
cannot  j^rove  a  sale  at  a  reasonable  price,  where  it  is  silent  altogether 
as  to  price,  and  the  parol  evidence  shews  a  different  contract  was 
made. 

This  ground  of  decision  makes  it  unnecessary  to  decide  the  point 
whether  the  plaintiff  can  or  cannot  maintain  the  count  for  goods  bar- 
gained and  sold  after  he  has  re-sold  the  goods  to  a  stranger  before  the 
action  brought.  A  question  which  does  not  go  to  the  merits,  but  is  a 
question  as  to  the  pleading  only;  for  there  can  be  no  doubt  but  that 
the  plaintiff  might,  after  re-selling  the  goods,  recover  the  same  measure 
of  damages  in  a  special  count  framed  upon  the  refusal  to  accept  and 
pay  for  the  goods  bought. 

For  the  reasons  above  given  we  think  the  rule  for  entering  a  verdict 
for  the  plaintiff  must  be  discharged.  Rule  discharged. 


SECT.    VI.]  HOADLY   V.   m'lAINE.  405 

IIOADLY  V.  M'LAINE. 

In  the  Common  Pleas,  April  19,  1834. 

[Reported  in  10  Bimjham,  482.] 

This  was  an  action  against  the  defendant  for  not  accepting  a 
landaulet  made  to  his  order  by  the  plaintiff. 

The  order,  Avliich  was  in  writing  and  delivered  to  the  plaintiff  on  the 
15th  of  May,  1882,  was  as  follows:  — 

"  Sir  Archibald  M'Laine  orders  Mr.  Iloadly  to  build  a  new,  fashion- 
able, and  handsome  landaulet,  with  the  following  appointments:" 
[here  followed  a  minute  detail  of  various  small  matters,  to  which  the 
proprietors  of  such  vehicles  attach  importance]  —  "  the  whole  to  be 
ready  by  the  1st  of  March,  1833." 

The  carriage  was  comi)leted  by  the  time  agreed  on,  but  in  the  course 
of  its  construction  a  great  number  of  alterations  and  additions  were 
made  from  time  to  time  at  the  request  of  the  defendant. 

In  April,  1833,  the  defendant  wrote  to  the  plaintiff,  desiring  that  he 
would  send  his  bill  for  the  carriage,  and  announcing  the  defendant's 
intention  to  have  it  out  immediately.  The  bill  however  amounting  to 
£480,  the  defendant  refused  to  pay  it,  or  to  accept  the  carriage. 
Whereupon  the  plaintiff  brought  the  present  action ;  and  a  great  num- 
ber of  coach-makers  having  jaroved  that  the  landaulet  was  of  such 
exquisite  workmanship  and  so  highly  ornamented  as  to  be  chea])  at 
the  price  demanded,  the  jury  gave  a  verdict  for  the  plaintiff  with  £'"200 
damages. 

Jones,  Serjt.,  obtained  a  rule  nisi  to  set  aside  this  verdict  on  the 
ground,  first,  that  the  order  of  May  15,  1832,  being  silent  as  to  price, 
there  was  no  sufficient  note  or  memorandum  of  the  contract  under  the 
17th  section  of  the  Statute  of  Frauds,  and  the  9  G.  4,  c.  14.  In  Elmore 
V.  Kino-scote  ^  the  court  said  "  there  must  be  a  note  or  memorandum  in 
writing  of  the  bargain.  The  price  agreed  to  be  paid  constitutes  a 
material  part  of  the  bargain.  If  it  Avere  competent  to  a  party  to  prove 
by  parol  evidence  the  price  intended  to  be  paid,  it  would  let  in  much  of 
the  mischief  Avhich  it  was  the  object  of  the  statute  to  prevent." 
Secondly,  that  considering  the  alterations  and  additions  which  liad 
been  agreed  to  while  the  vehicle  was  in  the  course  of  construction,  the 
contract  proved  did  not  coincide  with  the  contract  of  the  15th  of  May, 
1832,  which  was  the  only  one  set  out  in  the  declaration. 

Wilde  and  Coleridge,  Serjts.,  shewed  cause.     The  note  is  sufficient ; 
for  the  statutes  require  only  a  memorandum  of  what  was  agreed,  not  a 
memorandmn  also  of  what  was  not.      In    Kenwortliy   v.   Scholield,^ 
1  6  B.  &  C.  583.  2  2  B.  &  C.  947. 


406  HOADLY   V.   m'LAINE.  [CHAP.   I. 

Bayley,  J.,  says :  "The  word  'bargain'  means  the  terms  upon  which 
parties  contract ;    and  it  appears  by  Saunderson  v.  Jackson  -^  that  in 
order  to  satisfy  the  statute  the  signature  must  either  be  to  some  written 
document  containing  in  itself  the  terms  of  the  bargain,  or  connected 
with  some  other  document  which  does."     Where  a  definite  price  for 
the  article  has  been  agreed  on,  as  in  Elmore  v.  Kingscote,  the  memo- 
randum of  the  bargain  should  state  the  price ;    and  the  decision  and 
language  of  the  court  in  that  case  turn  on  the  fact  that  the  definite 
price,  which  was  part  of  the  bargain,  had  been  omitted  in  the  memo- 
randum.    But.  a  bargain  made  without  specification  of  price  is  as  valid 
as  any  other :  where  it  is  so  concluded,  no  price  can  be  specified  in  the 
memorandum;    but  the  memorandum  disclosing  the  whole  that  has 
been  reduced  to  certainty  is  suflScient  to  satisfy  the  statute.     And  all 
the  writings  which  relate  to  the  contract  may  be  taken  together  to 
shew  what  the  contract  was.     Saunderson  v.  Jackson.-     Here  taking 
the  defendant's  letter  of  April,  1833,  in  conjunction  with  his  order  of 
May,  1832,  it  is  clear  that  no  specific  price  was  contracted  for,  but  that 
the  carriage  was  to  be  built  at  a  reasonable  price :  else  why  does  the 
defendant  desire  the  plaintiflT  to  send  in  his  bill  ?     In  a  case  like  this 
before  the  statute,  where  no  specific  price  had  been  fixed,  parol  evidence 
might  have  been  adduced  to  shew  what  was  a  reasonable  j^rice,  because 
where  no  price  has  been  fixed  the  law  implies  that  the  party  shall  pay 
a  reasonable  price  ;  and  in  the  memorandum  required  by  the  statute  it 
is  not  necessary  to  state  what  the  law  implies.     Egerton  v.  Mathews.  ^ 
In  the  various  decisions  on  the  4th  section  of  the  Statute  of  Frauds, 
which  has  been  more  strictly  construed  than  the  17th,  the  specification 
of  price  has  never  been  insisted  on ;  and  as  a  large  proportion  of  con- 
tracts are  necessarily  entered  into  without  any  such  specification,  the 
inconvenience  of  requiring  it  would  be  intolerable.     In  Newbury  v. 
Armstrong,^  Tindal,  C.  J.,  says :  "  We  ought  not  to  be  too  strict  in  the   . 
construction  of  these  instruments ;  for  if  every  agreement  entered  into 
by  a  tradesman  be  so  minutely  criticised,  it  will  be  necessary  to  resort 
to  an  attorney  in  the  most  common  intercourse  of  life."     And  Burrough, 
J.,  says :  "  Whatever  is  necessarily  implied  may  be  taken  to  be  in  the 
instrument." 

With  respect  to  the  alleged  variance  it  would  be  impossible  to  carry 
on  business  in  many  departments  of  trade,  as  that  of  tailors,  u2:>hol- 
sterers,  builders,  and  the  like,  if  every  alteration  or  addition  in  the 
progress  of  an  executory  contract  were  to  be  held  to  be  a  new  and 
substantive  bargain,  to  be  void  unless  evidenced  by  a  new  memo- 
randum. 

Atcherley,  Serjt.  (late  Jones).  The  cases  on  the  4th  section  of  the 
Statute  of  Frauds  maybe  dismissed  on  the  consideration  of  the  present 

1  2  B.  &  P.  238.  «  2  B.  &  P.  238. 

3  6  East,  306.  *  6  Bing.  201. 


SECT.    VI.]  HOADLY    V.    M'lAINE.  407 

question,  because  the  difficulty  with  respect  to  executory  contracts 
never  arose  till  by  the  9  G.  4,  c.  14,  §  7,  after  reciting  the  enactments  of 
29  Car.  2,  c.  3,  §  17,  it  was  enacted  [stating  it].^ 

The  passing  of  that  statute  has  rendered  it  necessary  to  introduce 
into  the  memorandum  of  executory  contracts  as  much  [)recision  as  is 
required  in  the  memorandum  of  contracts  for  goods  ready  to  be  deliv- 
ered. The  object  of  requiring  that  precision  was  to  prevent  attempts 
to  alter  the  terms  of  a  contract  by  perjury ;  an  attempt  that  can  never 
succeed  where  all  the  material  terms  are  evidenced  by  writing.  But 
price  is  of  all  the  ingredients  of  a  bargain  the  most  imjjortant ;  and  to 
leave  executory  contracts  open  in  this  respect  is  to  afford  tem]>tation 
and  faciUty  for  the  mischief  which  the  Statute  of  Frauds  seeks  to  pre- 
vent. A  specific  price  ought  therefore  to  be  agreed  on  and  expressed 
on  the  fiice  of  the  memorandum;  and  if  it  be  agreed  on  and  not 
expressed — which  for  aught  that  appears  might  have  been  the  case 
here  —  the  omission  to  note  it  in  the  memorandum  of  the  bargain 
affords  as  wide  an  opening  for  perjury  as  if  there  had  been  no  memo- 
randum at  all.  The  dictum  of  the  court  in  Elmore  v.  Kingscote  is 
genei-al  and  unqualified.  And  the  objection  with  respect  to  the 
variance  remains  unanswered ;  for  the  carnage,  in  respect  of  which  the 
plaintifi"  has  given  evidence,  is  so  different  from  the  carriage  described 
in  the  order  of  May,  1832,  that  it  could  only  be  the  result  of  an  entirely 
new  contract,  and  on  that  new  contract  the  i^laintiff  should  have 
declared. 

TiNDAL,  C.  J.  This  is  an  action  against  the  defendant  for  not 
accejDting  a  carriage  built  pursuant  to  his  order;  and  the  question 
depends  upon  the  construction  to  be  put  on  the  statute  9  G.  4,  c.  14, 
§  7,  which  extends  to  executory  contracts  the  enactments  of  the  29 
Car.  2,  c.  3,  §  17,  as  to  executed  contracts  for  sale  of  goods,  by  provid- 
ing [stating  it].^ 

The  same  construction  therefore  must  be  put  on  the  one  act  as  on 
the  other ;  but  the  extreme  accuracy  of  mind  of  the  framer  of  the 
latter  act  is  shewn  in  this  :  that  Avhile  the  Statute  of  Frauds  in  its  enact- 
ments touching  contracts  for  the  sale  of  goods  emj^loys  the  word 
"  price,"  the  framer  of  the  latter  act  has  substituted  the  word  "  value," 
so  that  where  the  parties  have  omitted  to  fix  a  price  it  may  be  open 
to  a  jury  to  ascertain  the  value  in  dispute. 

The  question  therefore  is  whether  the  order  of  May,  1832,  is  a  suffi- 
cient note  or  memorandum  of  the  bargain  between  these  jiarties 
within  the  17th  section  of  the  Statute  of  Fi'auds ;  and  I  am  of  opinion 
it  is. 

It  is  clear  that  a  contract  for  the  sale  of  a  commodity  in  which  the 
price  is  left  uncertain  is  in  law  a  contract  for  M'hat  the  goods  shall  be 
found  to   be    reasonably   worth.      This    is   no   new  doctrine;  for  in 

1  See  supra,  p.  15,  note  (1).  —  Ed. 


408  HOADLY  V.    M'LAINE.  [CHAP.   I. 

Blackstone's  Commentaries,  b.  2,  c.  30,  it  is  laid  down  that  "  express 
contracts  are  where  the  terms  of  the  agreement  are  openly  uttered 
and  avowed  at  the  time  of  the  making,  as  to  deliver  an  ox,  or  ten 
loads  of  timber,  or  to  j^ay  a  stated  price  for  certain  goods ;  implied  are 
such  as  reason  and  justice  dictate,  and  which  therefore  the  law  pre- 
sumes that  every  man  undertakes  to  perfonn :  as,  if  I  take  up  wares 
fi'om  a  tradesman  without  any  agreement  of  price,  the  law  concludes 
that  I  contracted  to  pay  their  real  value.  ...  A  contract  for  any 
valuable  consideration,  as  for  marriage,  for  money,  for  work  done,  or 
for  other  reciprocal  contracts,  can  never  be  impeached  at  law.  .  .  . 
These  valuable  considerations  are  divided  by  the  civilians  into  four 
species.  .  .  .  The  third  species  of  consideration  is,  facio  ut  des^  when 
a  man  agrees  to  perform  any  thing  for  a  price,  either  specifically 
mentioned  or  left  to  the  detennination  of  the  law  to  set  a  value 
on  it." 

What  is  implied  by  law  is  as  strong  to  bind  the  parties  as  if  it  were 
under  their  hand.  This  is  a  contract  in  which  the  parties  are  silent  as 
to  price,  and  therefore  leave  it  to  the  law  to  ascertain  what  the  com- 
modity conti'acted  for  is  reasonably  worth. 

It  has  been  contended  that  this  would  open  a  door  for  perjury,  and 
let  in  the  mischief  which  the  Statute  of  Frauds  proposes  to  exclude. 
But  I  cannot  agree  in  that  proposition ;  for  it  does  not  appear  that 
any  specific  price  was  agreed  on ;  and  if  it  had  appeared  that  such  was 
the  case,  this  note  would  not  have  been  evidence  of  such  a  bargain,  as 
the  case  of  Elmore  v.  Kingscote  expressly  decides.  Thus  the  law 
stands  on  the  note  or  memorandum  of  May,  1832.  But  we  may  look 
at  all  the  writings  to  see  what  the  contract  was ;  and  here  from  the 
defendant's  letter  of  April,  1833,  it  appears  that  after  he  had  seen  the 
carriage  he  desired  the  plaintifi"  to  send  in  his  bill.  He  must  have 
known  whether  he  had  contracted  for  the  stipulated  price  or  not ;  and 
it  may  therefore  be  inferred  from  this  letter  that  he  knew  he  was  to 
pay  the  reasonable  charge  when  the  article  was  made  up. 

Taking  the  whole  together,  there  can  be  no  doubt  that  here  is  a 
sufficient  note  or  memorandum  of  the  bargain,  and  therefore  the  rule 
must  be  discharged. 

Park,  J.  This  is  a  case  within  the  statute  9  G.  4,  c.  14,  §  7,  by 
which  the  provisions  of  the  Statute  of  Frauds  are  extended  to 
executory  contracts.  But  the  construction  to  be  jDut  on  the  one  act  is 
the  same  as  on  the  other.  Now  it  is  only  necessary  that  price  should 
be  mentioned  in  the  memorandum  when  price  is  one  of  the  ingre- 
dients of  the  bargain:  the  dicta  in  Elmore  v.  Kingscote  are  applied  to 
the  facts  of  that  case,  in  which  the  bargain  was  for  a  specific  price ; 
and  it  is  admitted  on  all  hands  that  if  a  specific  price  be  agreed  on, 
and  that  price  is  omitted  in  the  memorandum,  the  memorandum  is 
insufficient.     The  court  says :  "  There  must  be  a  note  or  memorandum 


SECT.    VI.]  HOADLT  V.   M'LAINE.  409 

in  writing  of  the  bargain.  The  ])rice  agreed  to  be  paid  constitutes  a 
material  part  of  the  bargain.  If  it  were  competent  to  a  party  to 
prove  by  parol  evidence  the  price  intended  to  be  paid,  it  would  let  in 
much  of  the  mischief  A\hich  it  was  the  object  of  the  statute  to 
prevent."  That  is,  the  price  which  had  there  been  agreed  on.  There- 
fore Ave  are  for  from  impeaching  the  decision  in  Elmore  v.  Kingscote. 
"  Although  it  be  admitted,"  says  the  court  in  Saunderson  v.  Jackson, 
"that  the  letter  which  does  not  state  the  terms  of  the  agreement 
would  not  alone  have  been  sufficient,  yet,  as  the  jury  have  connected 
it  with  something  which  does,  and  the  letter  is  signed  Ijy  the 
defendants,  there  is  then  a  written  note  or  memorandum  of  the  order 
which  was  originally  given."  That  comes  home  directly  to  the 
present  case ;  for  the  defendant's  letter,  referring  to  the  article  which 
was  the  subject  of  the  contract,  says  :  "  Send  me  my  bill.  I  shall  bring 
out  the  carriage  immediately."  Putting  the  two  Avritings  together, 
it  is  impossible  to  say  he  did  not  undertake  to  pay  on  a  quantum 
meruit. 

Gaselee,  J.  Upon  this  contract,  followed  up  as  it  is  by  the 
defendant's  letter,  no  doubt  can  be  entertained.  But  independently 
of  that,  unless  we  establish  as  a  general  principle  that  every  alteration 
introduced  in  the  progress  of  an  executory  contract  is  to  constitute  a 
distinct  bargain,  requiring  a  distinct  note  in  writing,  I  am  of  opinion 
that  there  is  no  variance  in  this  case,  and  that  there  has  been  a  suffi- 
cient memorandum  of  the  contract.  If  we  were  to  hold  otherwise, 
every  building  contract  would  be 'avoided  by  every  addition.  With 
respect  to  price,  the  parties  could  not  put  down  what  was  not  settled ; 
and  as  the  memorandum  contains  all  the  terms  of  the  bargain  as  far 
as  the  parties  had  agreed  on  it  at  the  time,  I  am  of  opinion  it  is 
sufficient  to  bind  the  defen<lant. 

BosANQUET,  J.  I  am  of  the  same  opinion.  The  questions  to  be 
decided  are  two :  first,  whether  there  has  been  any  sufficient  note  or 
memorandum  of  the  bargain  for  this  carriage ;  secondly,  whether  the 
barcrain  was  for  such  a  carriage  as  that  described  in  the  note  which 
has  been  produced. 

The  objection  to  the  sufficiency  of  the  note  is  that  it  does  not 
express  the  price  to  be  paid  for  the  carriage ;  and  the  language  of  the 
statute  9  G.  4,  c.  14,  which  puts  executory  contracts  on  the  same 
footing  as  executed  contracts  under  the  Statute  of  Frauds,  so  nearly 
corresponds  with  the  language  of  the  Statute  of  Frauds,  that  the  one 
statute  must  receive  the  same  construction  as  the  other :  if  price  be  a 
necessary  ingredient  in  a  memorandum  under  the  Statute  of  Frauds, 
so  it  is  under  the  later  statute.  Now  the  Statute  of  Frauds  requires  a 
note  or  memorandum  of  the  terms  of  the  bargain  ;  but  that  is  all :  a 
party  is  not  bound  to  go  beyond  what  he  has  agreed  on  and  signed ; 
his  antagonist  is  not  allowed  to  set  up  a  price  which  has  not  been 


410  HAWES   V.    FORSTER.  [CflAP.    I. 

agreed  on ;  and  that  is  the  result  of  the  case  of  Ehnore  v.  Kingscote, 
where  a  specific  price  having  been  agreed  on  the  vendor  was  not 
allowed  to  proceed  upon  o,  quantum  meruit  ^  and  according  to  the 
same  principle  a  party  cannot  insist  on  a  specific  price  where  none 
has  been  agreed  on.  If  so,  the  question  is  whether  such  a  bargain  is 
one  that  could  have  been  enforced  before  the  Statute  of  Frauds ;  and 
without  doubt  it  could  have  been  so  enforced.  ISTow  that  statute 
requires  no  more  than  that  the  bargain,  such  as  it  is,  should  be 
reduced  to  writing ;  and  that  having  been  done  here,  the  first  objection 
falls  to  the  ground. 

Then,  secondly,  did  the  order  produced  in  evidence  constitute  the 
contract  for  the  carriage  which  the  defendant  rejected?  Taking  it  in 
conjunction  with  the  defendant's  letter,  written  after  he  had  seen  the 
carriage  complete,  and  desiring  his  bill  for  the  same,  it  is  clear  that 
the  carriage  was  the  result  of  that  contract.  It  seems  to  me  therefore 
that  there  is  no  variance ;  and  there  being  a  sufficient  memorandum  of 
the  bargain  under  the  Statute  of  Frauds,  the  rule  must  be  discharged. 

JRule  discharged. 


HAWES   AND   Another  v.   FORSTER  akd   Another. 
At  Guildhall,  coram  Lord  Denman,  July  3,  1834. 

[Reported  in  1  Moody  Sf  Robinson,  368.] 

Assumpsit  to  recover  the  sum  of  £320,  being  the  amount  of  dam- 
ages sustained  by  the  plaintifiTs  by  the  non-delivery  of  oil  on  the  30th 
of  June,  1831,  pursuant  to  contract. 

Plea,  general  issue. 

This  was  the  second  trial  of  the  action.  On  the  first  trial  (which 
took  place  before  Ld.  C.  J.  Denman  and  a  special  jury  at  the  London 
sittings  after  Michaelmas  term,  1832),  it  appeared  that  the  oil  had  been 
bought  by  the  plaintifis  of  the  defendants  through  Mr.  Wright,  one 
of  the  sworn  brokers  of  the  city  of  London.  The  plaintiflfe  on  that 
occasion  put  in  the  bought  note,  which  was  in  the  following  terms :  — 

Bought  for  Messrs.  B.  T.  and  W.  Hawes,  of  Messrs.  Forster  and  Smith,  from 
80  to  100  tons  of  palm  oil  of  merchantable  quality,  free  from  dirt  and  water,  at 
£26  per  ton,  payable  per  cash,  &c.  The  above  oil  warranted  to  arrive  on  or 
before  the  30th  of  June  (current),  ex  Premier,  Fullerton,  Cape  Coast.  Custom- 
ary allowances.  TgoMAS  Wright,  Broker. 

London,  27th  of  May,  1831. 

And  Mr.  Wright,  being  called  by  the  plaintifis  and  ha'^dng  proved 
his  being  employed  by  the  defendants  to  sell  the  oil,  said  that  he  made 
and  signed  an  entry  of  the  contract  in  his  broker's  book ;  that  the 


SECT.    VI.]  HAWES    V.    FORSTER.  411 

bought  note  was  wiitten  by  his  clerk,  and  signed  by  himself;  that  the 
entry  was  made,  and  the  bought  and  sold  notes  written  and  sent  to 
the  respective  parties  on  the  same  evening,  but  whether  the  entry  or  the 
notes  were  first  written  he  could  not  say. 

The  plaintiifs  proved  that  on  the  day  mentioned  in  the  bought  note 
(30th  of  June)  they  required  the  defendants  to  deliver  the  oil ;  and 
that,  defimlt  being  made,  they  had  bought  other  oil  at  an  advanced 
price.  The  sold  note  was  not  called  for  by  the  plaintifts  on  the  trial ; 
whereupon 

Campbell,  S.  G.,  for  the  defendants,  submitted  that  the  plaintiffs  must 
be  nonsuited.  It  was  the  universal  usage  to  produce  both  the  bought 
note  and  the  sold  note  ;  and  there  was  no  evidence  of  a  binding  con- 
tract between  the  parties  without  producing  the  two  instruments  and 
shewing  then-  correspondence  with  each  other. 

Sir  J.  Scarlett,  for  the  plaintiff.  The  bought  note  which  has  been 
produced  by  the  plaintiffs  is  evidence  of  a  contract  signed  by  Mr. 
Wright,  who  is  proved  to  be  the  agent  of  the  party  charged  therewith. 
It  is  not  necessary  for  the  plaintiffs  to  go  further. 

Denman,  Ld.  C.  J.,  was  of  opinion  that  the  plaintiffs  were  not  called 
upon  to  give  any  evidence  of  the  sold  note  delivered  by  the  broker  to 
the  defendants. 

Camphell,  S.  G.,  then  offered  to  produce  the  broker's  book,  accord- 
ing to  which  (as  he  suggested)  the  defendants  were  not  to  be  bound 
by  the  contract  unless  the  ship  mentioned  in  the  bought  note  should 
arrive  by  the  30th  of  June.  And  he  contended  that  the  entry  in  the 
broker's  book  fonned  the  original  contract ;  the  bought  and  sold  notes 
being  in  fact  only  minutes  of  the  contract  furnished  by  the  broker  to 
the  two  parties.  And  he  cited  Heyman  v.  Neale,^  Grant  v.  Fletcher,^ 
Goom  V.  Atialo.® 

Sir  J.  Scarlett,  contra,  rehed  upon  the  case  of  Thornton  v.  Meux  *  as 
the  last  authority  upon  the  subject,  distinctly  shewing  that  the  entry 
in  the  broker's  book  is  not  admissible  in  evidence  to  contradict  the 
bought  note. 

Dexman,  Ld.  C.  J.  I  am  of  opinion  that  the  plaintiffs  have  proved 
a  contract  by  producing  the  bought  note  signed  by  Mr.  Wright,  and 
shewing  that  person  to  have  been  the  agent  engaged  by  the  defendants 
to  dispose  of  the  oil.  It  is  not  shewn  that  the  sold  note  delivered  to 
the  defendants  differed  from  the  bought  note  delivered  to  the  plain- 
tiffs :  had  that  been  shewn  to  be  the  case,  it  would  have  been  very 
material ;  but  in  the  absence  of  all  proof  of  that  nature  I  am  clearly 
of  opinion  that  I  must  look  to  the  bought  note,  and  to  that  alone,  as 
the  evidence  of  the  terms  of  the  contract;  the  defendants  shall  how- 
ever have  leave  to  move  for  a  nonsuit. 

1  2  Campb.  337.  ^  5  B.  &  C.  436.  3  6  B.  &  C.  117. 

4  M.  &  M.  43. 


412  HAWES  V.    FORSTER.  [CHAP.    I. 

The  evidence  was  rejected ;  and  under  the  direction  of  his  Lordship 
the  jury  returned  a  verdict  for  the  ph^intiffs. 

In  Hilary  term  following,  Gamphell^  S.  G.,  obtained  a  rule  to  shew 
cause  Avhy  the  verdict  should  not  be  set  aside,  and  a  nonsuit  entered  on 
the  ground  of  the  non-production  of  the  sold  note ;  or  else  why  a  new 
trial  should  not  be  granted  on  the  ground  that  the  entry  in  the  broker's 
book  formed  the  contract,  and  that  such  book  ought  therefore  to  have 
been  received  as  evidence  for  the  defendants  on  the  trial. 

The  rule  as  to  the  nonsuit  was  discharged ;  but  the  rule  for  a  new 
trial  was,  after  argument  and  time  taken  by  the  court  for  consideration, 
made  absolute ;  the  Lord  Chief  Justice  saying  that  the  court  doubted 
whether  the  case  involved  any  point  of  law  at  all,  and  whether  it 
did  not  rather  turn  vipon  the  custom,  viz.,  how  the  broker's  book  was 
treated  by  those  who  dealt  with  him.  Looking  to  the  importance  of 
the  question  the  court  thought  it  fit  to  let  it  undergo  further  consider- 
ation in  order  that  evidence  might  be  given  as  to  the  usage  of  trade  in 
the  city ;  and  his  Lordship  added  that,  if  it  were  deemed  matter  of 
law,  it  would  be  better  to  tender  a  bill  of  exceptions ;  if  matter  of 
fact,  to  let  the  opinion  of  the  jury  be  taken  iipon  it. 

The  case  accordingly  now  came  down  for  a  second  trial ;  and  on  this 
occasion  the  plaintiiFs  (after  putting  in  the  bought  note  and  examining 
the  broker  to  the  same  effect  as  on  the  former  trial)  called  upon  the 
defendants  after  due  notice  to  produce  the  sold  note :  it,  was  accord- 
ingly produced,  and  corresponded  with  the  bought  note  already  set 
forth.  The  plaintiffs  then  called  several  of  the  most  eminent  mer- 
chants in  the  city,  all  of  whom  concurred  in  declaring  that  they  had 
never  known  any  instance  where  the  broker's  book  had  been  referred 
to,  and  that  they  always  looked  to  the  bought  and  sold  notes  as  the 
contract ;  and  some  of  them  added  that,  if  the  broker's  bought  or  sold 
note  (as  the  case  might  be)  were  not  consonant  with  their  directions 
to  the  broker,  they  returned  it. 

For  the  defence,  the  broker's  book  was  produced ;  and  the  entry 
respecting  the  transaction  in  question  was,  without  opposition,  read. 
It  agreed  -svith  the  bought  and  sold  notes  excepting  that,  instead  of 
the  words,  "  The  above  oil  warranted  to  arrive  on  or  before  the  30th  of 
June,  ex  Premier,  Fullerton,  Cape  Coast,"  the  words  in  the  broker's 
book  were,  "  If  the  above  do  not  arrive  on  or  before  the  30th  of  June, 
this  contract  to  be  void."  The  defendants  did  not  call  witnesses  to 
rebut  the  evidence  given  by  the  plaintiffs  as  to  the  usage ;  but  they 
produced  a  copy  of  the  regulations  made  in  the  year  1818  by  the  Court 
of  Aldermen  for  the  conduct  of  sworn  brokers,  and  which  regulations 
were  proved  to  have  been  generally  circulated.^ 

1  According  to  these  regulations  the  broker  is  directed  to  enter  all  contracts  on  the 
day  of  the  making  thereof,  &c.,  and  deliver  a  contract  note  to  both  buyer  and  seller, 
or  either  of  them,  within  twenty-four  hours  after  request,  containing  therein  a  true 


SECT.    VI.]  JOHNSON   V.    DODGSON.  413 

Lord  Dentvian,  C.  J.,  in  summing  up  the  case  said  to  the  jury :  "  The 
only  question  before  you  is,  Avhether  tlie  bought  and  sold  notes  consti- 
tuted the  contract ;  or  whether  the  entry  in  the  broker's  book,  Avhich 
in  this  case  differed  from  the  bought  and  sold  notes,  constituted  it.  I 
have  on  a  former  occasion  expressed  my  own  opinion  to  be  that  in 
point  of  law  the  note  delivered  by  the  broker  to  the  party  is  the  real 
contract ;  that  is  still  my  opinion :  but  it  has  been  thought  better  that 
the  point  should  be  submitted  to  you  simply  as  a  matter  of  fact ;  that 
you  may  say  which,  according  to  the  usage  of  trade  in  this  city,  has 
been  the  binding  contract,  —  the  broker's  book  or  the  bought  and  sold 
notes.  If  the  cvideuce  has  satisfied  you  that,  according  to  the  usage 
of  trade,  the  bouglit  and  sold  notes  are  the  contract  (and  the  evidence 
adduced  before  you  to  shew  that  they  are  so  considered  has  not  been 
met  by  any  contradictory  evidence  from  the  other  side),  then  you  will 
find  your  verdict  for  the  j^hiintiffs.  Verdict  for  the  plaintiffs. 

Campbell^  A.  G.,  applied  for  leave  to  tender  hereafter  a  bill  of  excep- 
tions to  the  direction  of  the  Lord  Chief  Justice  to  the  jury  that  they 
were  to  find  for  the  plaintiffs  if  they  thought  that,  according  to  the 
usage,  the  bought  and  sold  notes  constituted  the  contract.  Such  leave 
was  accordingly  given ;  but  the  defendants  have  since  submitted  to  the 
verdict,  and  j^aid  the  damages  and  costs. 


JOHNSON  AND   Others  v.  DODGSON. 
In  the  Exchequer,  Trinity  Term,  1837. 

[Reported  in  2  Meesoti  ^-  Welsby,  653.] 

Assumpsit  for  goods  sold  and  deHvered,  and  on  an  account  stated. 
Plea,  non  assumpsit.  At  the  trial  before  Lord  Abinger,  C.  B.,  at  the 
London  sittings  after  last  Hilary  term,  it  appeared  that  the  action  was 
brought  to  recover  the  sum  of  £240  19s.  9(i'.,  being  the  price  of  thirt}'-oue 

copy  of  such  entry  ;  and  shall,  upon  demand  being  made  by  buyer  or  seller,  shew  such 
entry  to  them,  to  manifest  and  prove  the  truth  and  certainty  of  such  contract.  The 
bond  executed  by  brokers  has,  since  these  regulations,  been  conditioned  for  their 
making  their  entries,  &c.,  in  the  manner  pointed  out  in  the  regulations :  before  the 
making  of  these  regulations,  the  broker  was  only  required  to  enter  the  contract  in  his 
book  within  three  days  after  it  was  made. 

These  regulations  were  made  in  consequence  of  the  report  of  a  committee  of  the 
corporation  of  London,  appointed  on  the  7th  of  March,  1815,  to  inquire  into  tlie  prac- 
tice and  general  conduct  of  the  brokers  of  the  city.  The  report  of  the  committee 
will  be  found  to  embrace  the  whole  history  of  the  brokers  of  Loudon. 


414  JOHNSON   V.    DODGSON.  [CHAP.    I. 

pockets  of  Sussex  hops  sold  by  the  plaintiffs,  hop  merchants  in  London, 
to  the  defendant,  a  hop  merchant  in  Leeds,  under  the  following  circum- 
stances :  — 

The  plaintiffs'  traveller,  one  Morse,  called  on  the  defendant  at  Leeds 
with  some  samples  of  hops,  and  agreed  with  him  for  the  sale  of  the 
hops  in  question.  The  defendant  then  wrote  the  following  memoran- 
dum in  a  sample-book  of  his  own,  which  he  retained  in  his  own  posses- 
sion :  — 

Leeds,  19th  October,  1836. 
Sold  John  Dodgson 

27  pockets  Playsted,  1836,  Sussex,  (o)  103s. 

The  bulk  to  answer  the  sample. 
4  pockets  Selme,  Beckley's,  fa)  955. 
Samples  and  invoice  to  be  sent  per  Rockingham  coach. 
Payment  in  bankers'  at  two  months. 

t  Signed  for  Johnson,  Johnson,  &  Co. 

D.  Morse. 

The  signature  was  added  at  the  defendant's  request  by  Morse.  On 
the  same  evening  the  defendant  wrote  to  the  plaintiffs  the  following 
letter :  — 

Leeds,  Wednesday  evening,  19th  October,  1836. 

Gentlemen,  — Please  to  deliver  the  27  pockets  Playsted,  and  the  4  pockets 
Selmes,  1836,  Sussex,  to  Mr.  Robert  Pearson  or  bearer,  to  be  cai-ted  to  Stan- 
ton's wharf:  20  pockets  of  Playsted  to  be  forwarded  per  first  ship,  and  the 
remaining  11  pockets  per  the  second  ship,  and  you  will  oblige,  gentlemen, 

Your  mast  obedient,  John  Dodgson. 

Bulk  samples  were  sent  pursuant  to  the  contract  by  the  Rockingham 
coach,  and  reached  Leeds  on  the  •24th  of  October,  but  w^ere  returned  by 
the  defendant  as  not  answering  the  samples  by  which  he  bought  from 
Morse.  There  was  much  conflicting  evidence  as  to  whether  there  had 
or  had  not  been  a  substitution  of  inferior  samples  in  lieu  of  the  genuine 
ones  :  that  question  was  left  to  the  jury,  who  found  it  in  favor  of  the 
plaintiffs.  For  the  defendant  it  was  objected  that  there  was  no  suf- 
ficient memorandum  of  the  contract  in  w^riting  to  satisfy  the  Statute  of 
Frauds  ;  the  entry  in  the  defendant's  book  not  being  signed  by  him, 
and  his  subsequent  letter  not  referring,  as  it  was  contended,  in  suf- 
ficiently express  terms  to  that  entry  as  that  it  might  be  connected  with 
it.     This  point  was  reserved,  and  accordingly  in  Easter  term 

Cresswell  obtained  a  rule  nisi  for  entering  a  nonsuit ;  against  which 
Thesiger  (with  whom  were  Erie  and  Evans)  now  shewed  cause. 
The  entry  in  the  defendant's  book,  being  written  by  the  defendant 
himself  and  signed  by  the  plaintiffs'  agent,  constituted  of  itself  a 
complete  contract  so  as  to  satisfy  the  statute.  It  is  clear  that  it 
matters  not  in  what  part  of  the  document  the  signature  appears.     In 


SECT.    VI.]  JOHNSON   V.    DODGSON.  415 

Saunclerson  v.  Jackson  ^  a  bill  of  parcels,  in  which  the  vendor's  name 
was  printed,  delivered  to  the  vendee  at  the  time  of  an  order  for  the 
delivery  of  goods,  was  considered  to  be  a  sufficient  memorandum  of 
the  contract  within  the  statute.  So  in  Schneider  v.  Norris  ^  a  bill 
of  parcels  in  which  the  vendor's  name  Avas  printed,  and  that  of  the 
vendee  written  by  the  vendor,  was  hold  sufficient.  But  at  all  events 
the  subsequent  letter  of  the  defendant  clearly  refers  to  this  contract ; 
and  being  connected  witli  it,  the  two  together  beyond  doubt  con- 
stitute a  sufficient  note  of  the  contract  within  the  statute.  It  may  be 
conceded  that,  if  its  application  to  the  particular  contract  be  doubtful, 
it  cannot  be  pieced  out  by  parol  evidence.  But  it  is  impossible  to 
doubt  that  the  defendant,  when  on  the  same  day  he  speaks  of  the 
27  pockets  Playsted  and  4  pockets  Selmes,  is  referring  to  the  sub- 
ject-matter of  this  particular  conti-act.  In  Allen  v.  Bennet  ^  the 
agent  of  the  seller  had  written  in  a  book  of  the  buyer  an  order  for 
50  barrels  of  rice  at  a  certain  jirice,  and  shortly  afterwards  tAvo 
several  similar  orders  for  12  CAVt.  and  for  8  CAA^t.  of  tobacco,  but 
not  naming  the  buyer;  and  it  was  held  that  a  subsequent  letter 
from  the  buyer  to  the  seller  in  which  he  said,  "  The  8  CAVt.  of  fine 
shag  tobacco  I  Avdsh  immediately  forAvarded,  as  I  have  sold  it  and  it 
is  wanted ;  I  likcAvise  want  the  inA'oice  of  the  rice  and  the  other 
tobacco,"  might  be  connected  with  the  orders  so  as  to  make  a  com- 
plete contract  Avitbin  the  statute.  The  present  case  is  a  stronger  one 
than  that.  In  Jackson  v.  LoAve*  the  buyer  AA-rote  to  the  sellers  as 
follows :  "  I  giA'e  you  notice  that  the  corn  you  delivered  to  me  in  part 
performance  of  my  contract  with  you  for  100  sacks  of  good  English 
seconds  flour,  at  -ios.  per  sack,  is  of  so  bad  a  quality  that  I  cannot  sell 
it.  The  sacks  of  flour  are  at  my  shop,  and  you  Avill  send  for  them, 
or  I  shall  commence  an  action."  The  sellers  ansAvered  by  their 
attorney  that  "Messrs.  L.  and  L.  considered  they-  had  perfonned 
their  contract,"  &c. ;  and  it  was  held  that  the  jury  were  warranted  in 
concluding  that  both  documents  referred  to  the  same  contract, 
and  therefore  constituted  together  a  sufficient  memorandum  of  it. 
[Parke,  B.  That  case  is  sti'onger  than  this,  because  there  the  sellers' 
letter  distinctly  refers  to  the  buyer's.]  But  there  is  a  further  question, 
whether  there  has  not  been  an  acceptance  of  the  goods  by  the 
defendant.  If  the  bulk  answered  the  samples  (as  the  jury  have 
found),  the  delivery  of  the  bulk  sam]>les  to  the  carrier  would  be  a 
complete  delivery  of  the  hojis.  [Pakkk,  B.  Hoav  can  you  say  that 
there  AA^as  an  acceptance  Avhen  the  defendant  exjiressly  says  he  aa^II 
not  accept?  The  delivery  to  the  carrier  may  be  a  delivery  to  the 
defendant,  but  the  acceptance  of  the  carrier  is  not  an  accejjtance  by 
him.     The  old  cases,  in  Avhich  it  had  been  said  that  a  receipt  by  a 

1  2  Bos.  &  P.  238.  2  2  M.  &  Sel.  286.  3  3  Taunt.  169. 

4  1  Bing.  9,  7  Moore,  219. 


416  JOHNSON   V.    DODGSON.  [CHAP.    I. 

carrier  was  an  accejDtance  to  satisfy  the  statute,  were  overruled  by 
.  Howe  V.  Palmer  ^  and  Hanson  v.  Armitage.^  Lord  Abikger,  C.  B. 
If,  to  take  the  strongest  case,  the  purchaser  sent  his  own  servant 
for  the  goods,  and  when  they  were  brought  sent  them  back  as  not 
answering  the  contract,  he  could  not  be  said  to  accej:)t  them.] 

Lastly,  there  being  no  plea  but  that  of  the  general  issue,  the 
defendant  was  precluded  fi-om  taking  the  objection  that  there  was  no 
note  in  writing  within  the  Statute  of  Frauds.  The  enactment  of  the 
17th  section  is  that  no  contract  for  the  sale  of  goods  for  £10  or 
upwards  shall  be  good  except  there  be  some  note  or  memorandum 
of  the  contract  in  writing,  &c.  That  is  equivalent  to  saying  that  the 
contract  shall  otherwise  be  void.  But  the  new  rule  ^  expressly  directs 
that  all  matters  which  shew  the  transaction  to  be  void  or  voidable  in 
point  of  law  shall  be  specially  pleaded.  And  the  Court  of  Common 
Pleas  accordingly  so  determined  a  similar  question  in  Barnett  v. 
Glossop.^  [Parke,  B.  Supj)ose  it  were  a  declaration  for  an  estate 
bargained  and  sold,  would  it  not  be  competent  to  the  defendant  iinder 
the  general  issue  to  shew  that  there  had  been  no  conveyance  ?  Lord 
Abixger,  C.  B.  When  by  law  you.  cannot  make  a  particular  contract 
except  in  writing,  to  deny  the  writing  is  to  deny  the  contract.  Unless 
you  have  very  little  confidence  in  your  first  point  you  had  better  not 
press  this.  We  will  hear  Mr.  Cresswell ;  and  if  it  become  necessary,  we 
will  afterwards  hear  you  on  this  point.] 

Cressvjell  and  Wightman,  in  support  of  the  rule.  First,  the  entry 
in  the  defendant's  book  was  not  of  itself  a  sufficient  memorandum 
of  the  contract.  There  is  no  case  in  which  the  j^arty  has  been 
charged  by  any  such  entry,  unless  he  professed  to  introduce  his  own 
signature  as  binding  himself.  If  he  writes,  "  I,  A.  B.,  agree,"  &c.,  he 
avowedly  introduces  his  own  name  as  the  party  agreeing  and  bound. 
The  cases  cited  on  the  other  side  are  distinguishable:  those  were 
cases  of  documents  which  the  party  charged  had  delivered  over  to 
the  other  contracting  party.  [Parke,  B.  The  handing  over  of  the 
document  was  used  merely  to  shew  the  recognition  by  the  party  of 
the  particular  mode  of  signature.]  Here  all  is  done  diverso  intuitu. 
The  document  is  signed  by  the  plaintifis'  agent  for  then-  protection, 
not  by  the  defendant  as  a  party  to  be  charged.  There  is  not  a  word 
intimating  that  he  has  bought :  the  operative  part  is  the  signature  of 
Morse,  whereby  he  says  on  behalf  of  his  employers  that  they  have 
sold.  Suppose  the  defendant  had  simply  made  a  memorandum  in  his 
own  book  that  on  such  a  day  the  plaintiffs  sold  to  him :  would  that  be 
sufficient?  [Parke,  B.  If  he  meant  it  to  be  a  memorandum  of 
the  contract  between  the  parties,  it  would ;  not  so,  if  he  meant  it 
to  be  a  mere  memorandum   to   be  kept   by   him  for   himself]      In 

1  3  B.  &  Aid.  321.  2  5  B.  &  Aid.  559. 

3  H.  T.  4  Will.  4,  Assumpsit,  3.  *  1  Bing.  N.  C.  633, 1  Scott,  621. 


SECT.    VI.]  JOHNSON   V.    DODGSON  417 

Saiinderson  v.  Jackson,  Lord  Eldon  did  not  expressly  hold  the  bill  of 
particulars  alone  sufficient,  but  only  by  the  addition  of  the  subsequent 
document  referrino-  to  it.  This  is  like  the  case  of  takintr  a  sold  note 
without  the  exchange  of  a  counter  bought  note. 

Secondly,  the   defendant's    letter  contains  no  certain   reference  to 
this  particular  contract.      Jackson  v.  Lowe  and  Allen  v.  Bcnnet  arc 
distinguishable.     The  latter  case  however  decided  that  it  could  not  be 
assumed  to  be  the  purchaser's  order,  though  it  was  entered   in   his 
book :    that   shews   that   every    thing  required  by  the   statute   must 
specifically  appear  to  have  been  complied  with.     This  letter  has  no 
reference  to  any  i)rice,  or  time  for  delivery,  or  period  of  payment.     If 
it  had  said,   "  the  hops  for  wliich  I  bargained   with   your   traveller 
to-day,"  there  would  have  been  a  distinct  reference  to  the  particular 
transaction.      The   certainty  of  the  reference  must  be  such  as  will 
exclude  the  court  from  the  necessity  of  inquiring  by  parol  evidence 
what  particular  contract  the  document  refers  to.^    Here  parol  evidence 
must  be  introduced  to  shew  that  there  was  only  one  such  contract. 
[Lord  Abinger,  C.  B.     The  statute  does  not  absolutely  exclude  parol 
evidence  :  it  only  requires  that  there  shall  be  a  note  of  the  contract 
in  writing,  in  order  to  exclude  fraud  or  mistake  as  to  its  terms.]     If 
the  document  point  specifically  to  any  particular  contract  as  made, 
the  court  may  inquire  by  parol  whether  such   contract  was  made  in 
fact.     But  suppose  the  letter  were  merely  in  these  terms,  "  Please  to 
deliver  the  hops  to  A.  B. : "  if  parol   evidence  be  admissible  here,  so 
would  it  also  there.      The  question   would  arise.  What  hops?   then 
evidence  is  let  in  of  the  purchase  of  these  particular  hops.     It  would 
be  impossible  to   draw  the  line  as  to  what  might  or  might  not  be 
supplied  by  parol  evidence.     It  has  been  decided  under  Lord  Tenter- 
den's  Act  that  a  letter  from  the  party  charged  must  refer  specifically 
to   the  particular   debt,  in    order   to  take   it  out  of  the   Statute  of 
Limitations.-      [Parke,    B.      That    is    questionable.      Lechmere   v. 
Fletcher.'^]     Unless  the  subsequent  document  refers  in  specific  terms 
to  the  former  one  it  cannot  become  jjart  of  it  so  as  to  constitute  it  a 
sufficient  contract  in  writing. 

Lord  Auinger,  C.  B.  I  think  this  is  a  very  clear  case.  If  it  rested 
upon  the  question  as  to  the  recognition  of  the  contract  by  the  letter 
there  might  have  been  some  doubt,  although  even  upon  that  I  should 
have  thought  the  reference  to  the  only  contract  ])roved  in  the  case 
sufficient.  But  on  the  other  jioint  it  really  seems  to  me  one  of  the 
strongest  cases  that  have  occurred.  The  Statute  of  Frauds  requires 
that  there  should  be  a  note  or  memorandum  of  the  contiact  in  writing 
signed  by  the  party  to  be  charged.     And  the  cases  have  decided  that, 

1  See  Hinde  v.  Wliitehouse,  7  East,  558. 

2  See  Kennett  v.  Milbaiik,  1  M.  &  Scott,  102,  8  Bing.  38. 

3  1  Cr.  &  M.  623. 

VOL.  I.  27 


418  STEAD   V.    DAWBER.  [CHAP.   I. 

although  the  signature  be  in  the  beginning  or  middle  of  the  instru- 
ment, it  is  as  binding  as  if  at  the  foot  of  it ;  the  question  being  always 
open  to  the  jury  whether  the  party  not  having  signed  it  regularly  at 
the  foot  meant  to  be  bound  by  it  as  it  stood,  or  whether  it  was  left  so 
unsigned  because  he  refused  to  complete  it.  But  when  it  is  ascer- 
tained that  he  meant  to  be  bound  by  it  as  a  complete  contract,  the 
statute  is  satisfied,  there  being  a  note  in  writing  shewing  the  terms  of 
the  contract  and  recognized  by  him.  I  think  in  this  case  the  requisi- 
tions of  the  statute  are  fully  complied  with.  The  written  memoran- 
dum contains  all  the  terms  of  the  contract :  it  is  in  the  defendant's  own 
handwriting,  containing  his  name ;  and  it  is  signed  by  the  plaintiffs 
through  their  agent. 

Parke,  B.  I  am  of  the  same  opinion,  and  think  this  was  a  suffi- 
cient memorandum  in  writing.  The  defendant's  name  was  contained 
in  it  in  his  own  handwriting,  and  it  was  signed  by  the  plaintiffs.  The 
point  is  in  effect  decided  by  the  cases  of  Saunderson  v.  Jackson  and 
Schneider  v.  Norris.  There  the  bills  of  parcels  were  held  to  be  a  suffi- 
cient memorandum  in  writing,  it  being  proved  that  they  were  recog- 
nized by  being  handed  over  to  the  other  party.  Here  the  entry  was 
written  by  the  defendant  himself,  and  required  by  him  to  be  signed  by 
the  plaintiffs'  agent.  That  is  amply  sufficient  to  shew  that  he  meant 
it  to  be  a  memorandum  of  contract  between  the  parties.  If  the 
question  turned  on  the  recognition  by  the  subsequent  letter,  I  own  I 
should  have  had  very  considerable  doubt  whether  it  referred  suffi- 
ciently to  the  contract :  it  refers  to  the  subject-mattei-,  but  not  to  the 
specific  contract.  But  it  is  unnecessary  to  give  any  opinion  upon  that, 
because  on  the  former  point  I  think  there  is  a  sufficient  note  in 
writing. 

BoLLAND,  B.  I  am  of  the  same  opinion,  —  that  the  entry  made  by 
the  defendant  was  a  sufficient  memorandum  in  writing ;  and  if  it  were 
necessary  to  decide  the  other  point,  I  should  also  be  inclined  to  think 
the  letter  sufficiently  connected  with  the  contract. 

Hule  discharged. 


STEAD  V.  DAWBER  and   STEPHENSON. 

In  the  Queen's  Bench,  May  7,  1839. 

[Reported  in  10  Adolphus  S,-  Ellis,  57.] 

Assumpsit.  The  declaration  stated  that  the  plaintiff  heretofore,  to 
wit,  10th  May,  1836,  at  the  special  instance,  &c.,  bargained  for  and 
agreed  to  buy  of  the  defendants,  and  the  defendants  then  bargained 
for  and  agreed  to  sell  to  plaintiff  a  sloop-load  of  about  400  quarters  of 


SECT.    Vr.]  STEAD   V.    DAWBER.  419 

ground  bones  of  good  merchantable  quality,  at  16s.  6(7.  a  quarter,  free 
on  board,  to  be  delivered  on  the  20tli  to  the  22d  then  instant ;  payment 
by  acceptance  three  months  from  delivery ;  that  afterwards  and  before 
the  said  22d  day  of  May,  to  wit,  17th  May,  plain tift',  at  the  special 
instance,  <fec.,  gave  time  to  defendants  for  the  delivery  of  the  said  sloop- 
load  of  ground  bones  until  the  24th  day  of  the  said  month  of  May : 
and  although  j)laintiff  hath  always  from  the  time  of  the  making  the 
said  contract  hitherto  been  ready  and  willing  to  accept  and  receive 
from  defendants  the  said  sloop-load,  &c.,  and  to  pay  for  the  same  at 
the  rate  or  price  and  in  manner  aforesaid,  whereof  defendants  during 
all  the  time  aforesaid  had  notice,  and  were,  to  wit,  on  24th  May, 
requested  by  and  on  behalf  of  plaintiff  to  deliver  to  him  the  said  sloop- 
load  of  ground  bones,  yet  defendants  not  regarding  their  said  contract, 
but  contriving,  &c.,  did  not  nor  would  upon  the  said  24th  day  of  May, 
or  at  any  time  or  times  whatsoever,  deliver  to  plaintiff  the  said  sloop- 
load,  &c.,  or  any  part  thereof,  but  wholly  refused,  &q.  :  whereby  2)lain- 
tiff  hath  wholly  lost  and  been  deprived  of  the  advantage  which  he 
would  have  derived  from  the  performance  of  the  said  contract,  and 
hath  lost  and  been  deprived  of  profits  which  might  and  otherwise 
would  have  accrued  to  him  fi-om  the  delivery  of  the  said  sloo])-load  of 
ground  bones,  the  price  thereof  having  greatly  risen,  (to  wit)  to  the 
extent  of  £1  4s.  Qd.  })er  quarter,  between  the  making  of  the  said  agree- 
ment and  the  refusal  of  defendants  to  fulfil  the  same  as  afoi'esaid. 
Pleas.     1.  I^on  assumpsit.     Issue  thereon. 

2.  That  plaintiff  did  not  at  the  special  instance,  &c.,  give  time,  &c., 
in  manner  and  form,  &c. :  conclusion  to  the  country.     Issue  thereon. 

3.  That  defendants  had  no  notice  that  plaintiff  was  ready  and  willing 
to  accept,  &c.,  in  manner  and  form,  &c. :  conclusion  to  the  country. 
Issue  thereon. 

4.  That  the  said  giving  of  time  for  the  delivery  of  the  said  sloop- 
load  of  ground  bones,  in  the  declaration  mentioned,  formed  and  was 
part  and  parcel  of  a  contract  between  plaintiff  and  defendants  for  the 
sale  of  certain  goods,  to  wit,  ground  bones,  for  the  price  of  ujnvards  of 
£10  sterling  by  defendants  to  plaintiff,  and  that  plaintiff  did  not  accept 
any  part  of  the  said  goods  so  sold  and  actually  receive  the  same,  nor 
did  plaintiff  give  any  thing  in  earnest  to  bind  the  said  bargain  or  in 
part  of  payment,  and  that  no  note  or  memorandum  in  writing  of  the 
said  banjain  was  made  and  signed  bv  defendants  or  either  of  them,  or 
their  agent  or  agents  thereunto  lawfully  authorized :  verification.  Rep- 
lication, that  the  said  giving  of  time,  &c.,  was  not  part  of  the  contract 
between  plaintiff  and  defendants  for  the  sale  of  the  said  ground  bones : 
conclusion  to  the  country.     Issue  thereon. 

On  the  trial  before  Alderson,  B.,  at  the  York  spring  assizes,  1837,  the 
plaintiff  ])ut  in  the  following  written  note  signed  on  the  day  of  the 
date  by  the  broker  acting  for  the  plaintiff:  — 


420  ,       STEAD  V.    DAWBER.  [CHAP.  I. 

Hull,  10th  May,  1836. 
Bought  of  Messrs.  Dawber  and  Stephenson,  for  Mr.  William  Stead  of  Boro- 
bridge,  a  sloop-load  of  about  400  quarters  of  ground  bones  of  a  merchantable 
quality,  at  16s.  Gd.  a  quarter,  free  on  board,  to  be  delivered  on  the  20th  to  the 
22d  instant.     Payment  by  acceptance  at  three  months  from  delivery. 

Joseph  Dawson,  Broker. 

It  further  appeared  that  on  the  17th  of  May  Dawson  told  the 
defendant  Stephenson  that  the  22d  would  fall  on  a  Sunday,  and  asked 
him  if  he  could  deliver  the  bones  on  the  21st :  to  which  Stephenson 
answered,  "  You  had  better  say  Monday  or  Tuesday ; "  and  Dawson 
replied,  "  Monday  or  Tuesday."  The  bones  w^ere  not  sent :  the  price 
was  afterwards  tendered,  and  refused  by  the  defendants.  The  price  of 
bones  had  risen  to  21s.  per  quarter  on  the  24th  May.  Dawson  stated 
in  evidence  that  the  time  for  the  delivery  of  the  bills  would  be  enlarged 
to  24th  May  by  the  time  for  delivering  the  goods  being  enlarged  to 
that  day. 

The  defendants'  counsel  contended  that,  the  written  contract  having 
been  varied  by  a  verbal  agreement,  there  was  no  complete  written  con- 
ti*act  under  §  17  of  the  Statute  of  Frauds  upon  which  the  plaintiff 
could  recover;  but  the  learned  judge  being  of  opinion  that  the  effect 
of  the  enlargement  of  the  time  was  not  to  alter  the  contract,  but  only 
to  dispense  with  its  performance  on  the  day  first  named,  directed  a 
verdict  for  the  plaintiff,  giving  leave  to  move  to  enter  a  verdict  for  the 
defendants  on  the  issues  upon  the  first  and  fourth  pleas.  In  Hilary 
term,  1837,  Alexander  obtained  a  rule  accordingly.^  In  last  Hilary 
term  ^ 

Ct'essivell  and  3Iartin  shewed  cause.  The  alteration  as  to  the  time 
of  delivery  formed  no  part  of  the  contract  as  it  was  originally  framed, 
nor  did  it  vary  that  contract :  it  was  merely  a  dispensation  from  per- 
forming part  of  its  terms,  which  prevented  the  plaintiff  from  availing 
himself  of  a  breach  of  that  part:  there  was  therefore  no  necessity 
under  stat.  29  Car.  2,  c.  3,  §  17,  tliat  any  writing  should  be  given  referring 
to  this  alteration.  The  same  point  was  decided  in  Cuff  v.  Penn  ;  ^  and 
Thresh  v.  Rake*  is  to  the  same  effect.  Goss  v.  Lord  Nugent  ^  is  inap- 
plicable. There  the  substance  of  the  written  contract  to  make  a  good 
title  to  fourteen  lots  was  varied  by  the  new  verbal  agreement,  which 
in  effect  substituted  a  contract  to  make  a  good  title  to  thirteen  only. 
If  the  contract  here  could  not  be  altered  by  verbal  agreement,  then  the 
verbal  agreement  forms  no  part  of  the  contract,  and  then  the  issue  on 
the  fourth  plea  must  be  entered  for  the  plaintiff;  and  also  on  that  sup- 
position the  plea  of  non  assumpsit  fails.     Therefore,  either  there  is  no 

1  The  rule  was  also  for  the  reduction  of  damages,  on  grounds  which  became  imma- 
terial by  the  decision  of  the  court. 

■^  January  21,  1839.  Before  Lord  Denman,  C.  J.,  Littledale,  Williams,  and  Cole- 
ridge, JJ. 

3  1  M.  &  S.  21.  *  1  Esp.  53.  *  5  B.  &  Ad.  58. 


SECT.    VI.]  STEAD   V.    DAWBER.  421 

variation  of  the  contract,  or  the  contract  as  varied  is  good.  But  in  fact 
the  verl)al  agreement  is  no  part  of  the  contract  set  out  in  the  declara- 
tion, wliich  is  merely  framed  on  the  original  bought  and  sold  note. 
This  shews  the  distinction  between  the  present  case  and  Goss  v.  Lord 
Nugent,^  where  the  declaration  treated  the  verbal  contract  as  incorpo- 
rated in  the  written  one;  and  the  court  said,  "The  written  contract  is 
not  that  which  is  sought  to  be  enforced  :  it  is  a  new  contract  which  the 
])arties  have  entered  into."  The  breach  here  is  that  there  was  no 
delivery  at  all :  if  the  defendants  had  proved  a  delivery  on  the  day 
named  in  the  verbal  agreement,  that  would  have  been  an  answer  to 
the  breach  in  the  nature  of  accord  and  satisfaction,  not  of  a  pL'rfoi-m- 
ance  of  the  contract  declared  u])on. 

Alexander  and  Coiclmff,  contra.  The  declaration  shews  in  the  first 
instance  a  contract  binding  the  defendants  to  deliver  by  the  22d,  and 
the  plaintiiF  to  give  an  acceptance  at  three  months  from  the  delivery : 
then  it  shews  a  substitution  of  a  new  day  of  delivery,  and  necessarily 
of  a  new  time  for  the  delivery  of  the  acceptance  and  for  its  maturity. 
That  is  a  material  variation  of  the  contract,  and  it  takes  place  on  u 
fi-esh  consideration.  In  the  case  of  sales  of  real  jtroperty  under  §  4  ot 
the  statute,  time  at  law  is  of  the  essence  of  the  contract ;  and  it  is  so 
in  equity  where  the  value  of  the  thing  sold  may  depend  uj)on  the  time 
of  performance,  as  here.  1  Sugd.  Vend,  and  Purch.  402  (lUth  ed.)  ; 
Wilde  V.  Fort,-  Dolorct  i\  Rothschild,^  Rothschild  v.  Hennings.*  [LiT- 
TLEDALE,  J.,  referred  to  Shepherd  v.  Johnson.^]  Cuff  v.  Penn  ®  can 
hardly  be  considered  an  authority  now ;  and  there  a  partial  delivery 
on  a  day  later  than  that  named  in  the  contract  had  been  made  and 
accepted ;  and  Lord  Ellenborough  lays  a  sti-ess  on  that  fact.  There 
too  the  action  was  for  not  acce]>ting,  and  the  difficulty  did  not  exist 
which  arises  here  from  the  difference  of  value  at  different  times.  In 
Thresh  v.  Rake ''  the  agreement  did  not  require  a  writing  under  the 
Statute  of  Frauds ;  and  the  court  in  Goss  v.  Lord  Nugent  ^  distinguish 
as  to  the  effect  of  varying  a  ■\\Titten  contract  between  written  contracts 
which  might  have  been  enforced  if  only  verbal,  and  those  under  the 
Statute  of  Frauds.  Warren  v.  Stagg  **  perhaps  is  in  favor  of  the  plain- 
tiff, but  that  case  is  inconsistent  with  later  authorities.  Tlie  cases 
under  §  4  of  the  Statute  of  Frauds  apply  in  princii)le  to  §  17,  and  ui>on 
§  4  it  is  now  clear  that  a  written  contract  under  the  Statute  of  Frauds 
cannot  be  varied  by  a  verbal  agreement.  Goss  v.  Lord  Nugent,^  Har- 
vey V.  Grabham,^  Stowell  v.  Robinson.^''     Under  §  17  the  courts  have 

1  5  B.  &  Ad.  58.  2  4  Taunt.  8.34.  3  1  Sim.  &  St.  590. 

*  9  B.  &  C.  470;  reversing  tlie  judgment  of  C.  P.  iu  Hennings  v.  Rothschild,  4 
Bing.  315. 

5  2  East,  211.     See  Green  v.  Bicknoll,  8  A.  &  E.  701. 

6  1  M.  &  S.  21.  1  1  Esp.  53. 

8  Cited  in  Littler  v.  Holland,  3  T.  R.  591.  5  A.  &  E.  61. 

10  3  New  Ca.  928. 


422  STEAD    V.    DAWBER.  [CHAP.    I. 

enforced  the  provisions  of  the  act  very  scrupulously  with  a  view  to 
guard  against  the  mischief  which  the  statute  meant  to  obviate,  as  in 
Elmore  v.  Kingscote.^  Bayley,  J,,  appears  to  apply  the  same  rules  of 
interpretation  to  the  two  sections  in  Kenworthy  v.  Schofield.^  Greaves 
V.  Ashlin  ^  and  Meres  v.  Ansell  *  shew  the  unwillingness  of  the  courts 
to  vary  or  explain  written  contracts  by  oral  testimony. 

Cur.  adv.  vult. 

LoED  Denman,  C.  J.,  in  this  term  (May  7th)  delivered  the  judgment 
of  the  court. 

This  was  an  action  to  recover  damages  for  the  non-delivery  of  a 
cargo  of  bones.  By  the  sold  note  they  Avere  to  be  shipped  on  the  20th 
to  the  '22d  of  May,  and  to  be  paid  for  by  an  acceptance  at  three  months 
from  the  delivery.  The  22d  happened  to  be  on  a  Sunday  ;  and  a  con- 
versation taking  place  between  the  defendant  and  the  plaintiff's  agent 
respecting  this,  upon  the  suggestion  of  the  defendant  the  Monday  or 
Tuesday  immediately  following  were  substituted  as  the  days  of  dehv- 
ery.  The  agent  who  proved  this  also  stated  that  the  time  for  giving 
the  acceptance  would  in  consequence  be  also  proportionably  enlarged. 
The  main  question  at  the  trial  and  before  us  was,  whether  this  enlarge- 
ment of  the  time  was  an  alteration  of  the  contract  or  only  a  dispensa- 
tion with  its  performance  as  to  time.  The  declaration  after  setting  out 
the  original  contract  stated  that  the  plaintiff,  at  the  special  instance  of 
the  defendants,  gave  them  time  for  the  delivery  to  the  24th  May,  and 
averred  a  demand  on  the  24th.  The  fourth  plea  alleged  that  this  giv- 
ing time  was  jDarcel  of  a  contract  within  the  Statute  of  Frauds ;  that 
there  was  no  acceptance  wholly  or  in  part,  or  any  earnest  or  part  pay- 
ment ;  and  that  there  was  no  note  or  memorandum  in  writing  of  it ; 
and  the  replication  traversed  its  being  parcel  of  the  contract. 

The  principles  on  which  this  case  must  be  decided  are  clear  and 
admitted.  The  contract  is  a  contract  within  the  Statute  of  Frauds,  and 
cannot  be  proved,  as  to  any  essential  parcel  of  it,  by  merely  oral  testi- 
mony ;  for  to  allow  such  a  contract  to  be  proved  partly  by  writing  and 
partly  by  oral  testimony  would  let  in  all  the  mischiefs  which  it  was  the 
object  of  the  statute  to  exclude.  Many  cases  were  cited  in  the  argu- 
ment on  both  sides,  the  plaintiff's  counsel  relying  chiefly  on  Cuff  v.  Penn,^ 
the  defendants  on  Goss  v.  Lord  Nugent,^  the  decision  in  which  it  is 
certainly  not  easy  to  reconcile  with  that  in  the  former.  But  it  seems 
to  us  that  we  are  mainly  called  on  to  decide  a  question  of  fact,  —  What, 
namely,  was  the  intention  of  the  parties  in  the  arrangement  come  to 
for  substituting  the  24th  for  the  22d  as  the  day  of  delivery  :  did  they 
intend  to  substitute  a  new  contract  for  the  old  one,  the  same  in  all 
^ther  respects,  except  those  of  the  day  of  delivery  and  date  of  the 

1  5  B.  &  C.  583.  2  2  B.  &  C.  945.     See  p.  947.  ^  3  Campb.  426. 

«  3  Wils.  275.  5  1  M.  &  S.  21.  6  5  B.  &  Ad.  58. 


SECT.    VI.]  STEAD    V.    DAWBER.  423 

accepted  bill,  with  the  old  one  ?  Where  the  variation  is  so  slight  as 
in  the  present  case,  and  the  consequences  so  serious,  the  mind  comes 
reluctantly  to  this  conclusion ;  and  this  reluctance  is  increased  by  con- 
sidering in  how  many  instances  of  written  contracts  within  the  Stat- 
ute of  Frauds  slight  variations  are  made  at  the  request  of  one  or  other 
of  the  parties,  without  the  least  idea  at  the  time  of  defeating  the  legal 
remedy  or  the  original  contract.  But  the  same  principle  must  be 
applied  to  the  variation  of  a  day  and  a  week  or  a  month ;  and  it  seems 
impossible  to  suppose  that,  when  the  plaintiff  had  agreed  to  substitute 
the  24th  for  the  22d,  either  party  imagined  that  an  action  could  be 
brought  for  non-delivery  on  the  22d,  or  that  the  delivery  on  the  24th 
would  not  be  a  legal  performance  of  the  contract  existing  between 

them. 

It  was  urged  by  the  plaintiif's  counsel  that  the  ■  defendant's  argu- 
ment reduced  him  to  an  inconsistency;  that  he  alleged  on  the  one 
hand  an  alteration  of  the  contract  by  parol,  and  yet  on  the  other 
asserted  that  such  alteration  by  parol  could  not  be  made.  But  this  is 
in  truth  to  confound  the  contract  with  the  remedy  upon  it.  Inde- 
pendently of  the  statute,  there  is  nothing  to  prevent  the  total  waiver 
or  the  partial  alteration  of  a  written  contract  not  under' seal  by  parol- 
ao-reement,  and  in  contemplation  of  law  such  a  contract  so  altered 
subsists  between  these  parties  ;  but  the  statute  intervenes,  and  in  the 
case  of  such  a  contract  takes  away  the  remedy  by  action.  It  cannot 
be  said  that  the  time  of  delivery  Avas  not  originally  of  the  essence  of 
this  contract :  the  evidence  shews  that  the  value  of  this  article  was 
fluctuating ;  and  the  time  of  payment  was  to  be  calculated  from  the 
time  of  delivery.  Where  these  circumstances  exist,  it  cannot  in 
strict  reasoning  be  argued,  as  was  said  by  Lord  Ellenborough  in  the 
case  of  Cuif  v.  Penn,^  that  the  contract  remained,  although  there 
was  an  agreed  substitution  of  other  days  than  those  originally  speci- 
fied for  its  performance.  Nor  does  any  difficulty  arise  from  the  want 
of  consideration  for  the  plaintiff's  agreement  to  consent  to  the  change 
of  days ;  for  the  same  consideration  which  existed  for  the  old  agree- 
ment is  imported  into  the  new  agreement  which  is  substituted  for  it. 

Putting  therefore  that  construction  on  what  passed  between  these 
parties  which  best  effectuates  their  intention,  and  giving  also  full  effect, 
as  we  ought,  to  the  salutary  provisions  of  the  Statute  of  Frauds,  we 
think  that  this  giving  of  time  was  parcel  of  the  contract,  and  conse- 
quently that  the  verdict  on  the  fourth  plea  should  be  entered  for  the 
defendants.  liule  absolute  accordinghj.'^ 

1  1  M.  &  S.  21. 

2  Compare  Ogle  v.  Vane,  Law  Rep.  2  Q.  B.  275,  3  Q.  B.  272.  —  Ed. 


424  JACOB   V.    KIRK.  [chap.    I. 

JACOB  V.   KIRK. 

At  Nisi  Prius,  coram  Parke,  B.,  June  5,  1839. 

[Reported  in  2  Moody  ^~  Robinson,  221.] 

This  was  an  action  of  assumpsit  for  goods  bargained  and  sold. 
There  was  also  a  count  on  an  account  stated. 

First  plea,  non  assumpsit;  second,  no  note  in  writing  to  satisfy  the 
Statute  of  Frauds ;  and  issue  thereon. 

It  was  proved  that  the  plaintiff  travelled  over  the  country  selling 
cigars,  and  that  on  the  3d  July,  1838,  the  defendant  ordered  of  him 
about  fourteen  pounds  of  cigars  of  different  qualities.  It  was  also 
proved  that  at  the  time  of  the  order  being  given  the  plaintiff  had  not 
the  cigars  in  his  possession,  but  that  it  was  his  habit,  after  having  obtained 
the  orders,  to  send  them  from  a  wholesale  dealer  in  London. 

In  order  to  satisfy  the  Statute  of  Frauds,  the  plaintiff  produced  a 
memorandum  book,  containing  amongst  other  notes  and  orders  the 
following  pencil  entry :  "  Mr.  Kirk,  6  doz.  King's,  6  doz.  Queen's,  at  25s. 
perlb. ;  2  doz.  others  at  20s.  per  lb.;  to  Russell  Street,  Manchester. 
Signed  R.  K. ; "  which  signature  was  proved  to  be  in  the  defendant's 
handwriting. 

The  plaintiff's  name  nowhere  appeared  in  the  book ;  nor  was  there 
any  other  evidence  to  connect  the  i)laintiff  with  the  order  so  entered, 
save  a  letter  from  the  defendant  in  the  month  of  August  following, 
addressed  to  the  plaintiff,  stating  that  he  had  received  a  letter  from  the 
plaintiff;  "  that  he  was  surprised  at  the  plaintiff's  expecting  him  to 
accept  the  cigars,  which,  instead  of  having  been  sent  in  nine  or  ten 
days,  had  not  arrived  in  Manchester  till  the  10th  of  August ; "  that  he 
therefore  should  not  think  of  accepting  them,  and  referred  him  to  his 
solicitor.  But  the  letter  did  not  refer  to  the  entry  in  the  above  book. 
This  being  the  plaintiff's  case, 

JUrle,  for  the  defendant,  submitted  that  the  plaintiff  must  be  non- 
suited. The  count  for  goods  bargained  and  sold  was  not  supported  by 
the  evidence,  but  the  declaration  should  have  been  on  a  special  count 
for  not  accepting,  and  to  that  count  the  Statute  of  Frauds  would  afford 
a  sufficient  defence.  It  is  clear  on  the  authorities  that  the  memoran- 
dum, to  satisfy  the  statute,  must  contain  the  names  of  the  parties  (the 
vendor  and  vendee)  and  the  other  terms  of  the  contract.  Here  is  no 
vendor's  name ;  for  there  is  nothing  to  connect  the  pencil  entry  in  the 
memorandum  book  with  the  defendant's  letter  of  August :  he  cited 
Champion  v.  Plummer,  1  N.  R.  252,  to  shew  that  the  connection  between 
the  two  documents  must  be  collected  from  within  the  four  corners  of 
the  instruments  themselves ;  citing  also  Richards  v.  Porter,  6  B.  &  C. 


SECT.    VI.]  GRAHAM    V.    MUSSON.  425 

438;    Cooper   v.   Smith,   15   East,   103;    Acebal   v.  Levy,   10   Bing. 
376. 

I*latt  and  Jlartin,  contra.  The  first  count  is  sustainable;  but  if 
not,  the  declaration  might  be  amended  by  turning  it  into  a  special  count 
for  not  accepting.  With  respect  to  the  Statute  of  Frauds,  the  memo- 
randum and  letter  were  sufficiently  connected,  no  other  contract  hav- 
ing been  suggested  as  existing  between  the  plaintiif  and  defendant  to 
which  the  letter  could  possibly  have  reference. 

Parkh,  B.  My  opinion  is  that  the  first  count  is  not  made  out,  as 
there  was  not  here  a  bargain  for  any  specific  ascertained  chattels ;  but 
with  respect  to  the  application  for  an  amendment,  I  must  say  I  am  dis- 
posed to  open  the  door  for  amendments  asAvide  as  possible.  By  allow- 
ing the  amendment  here,  and  so  giving  the  plaintiff  an  opportunity  of 
bringing  forward  his  real  cause  of  action,  I  consider  I  shall  be  meeting 
the  justice  of  the  case  ;  but  of  course  the  defendant  must  have  time 
for  pleading  de  novo,  and  the  ])laintiff  must  i)ay  the  costs  of  the  day 
and  of  the  amendment.  I  should  greatly  doubt  however  Avhether  it 
will  be  worth  while  for  the  plaintiff  to  avail  himself  of  these  tenns; 
for  I  am  of  opinion  that  he  cannot  get  over  the  objection  under  the 
Statute  of  Frauds.  My  opinion  is  that  the  letter  ought  clearly  to 
refer  to  the  pencil  memorandum;  and  that  the  whole  mischief  intended 
to  be  guarded  asrainst  bv  the  statute  would  be  incurred,  if  verbal  evi- 
dence  were  admitted  to  shew  that  the  documents  must  necessarily  be 
presumed  to  refer  to  each  other. 

The  plaintifTs  counsel,  notwithstanding  this  intimation  of  the  learned 
Baron's  opinion,  requested  to  have  the  amendment  made ;  and  Erie,  for 
the  defendant,  thereupon  elected  to  i)lead  forthwith;  which  being  done, 
the  defendant  obtained  a  verdict  on  the  ground  that  the  cigars  had 
not  been  sent  Avithin  a  reasonable  time,  as  averred  in  the  amended  count ; 
and  under  the  direction  of  the  learned  Baron  the  defendant  took  a 
verdict  also  on  the  plea  of  the  Statute  of  Frauds. 

Vei'dict  for  the  defendant. 


GRAHAM   AND   Others  v.  MUSSOX. 
In  the  Common  Pleas,  June  8,  1839. 

[Reported  in  5  Binrjham's  New  Cases,  603.] 

Assumpsit  for  goods  sold  and  delivered. 

The  defendant  pleaded,  first,  non  assumpsit ;  secondly,  the  want  of 
a  note  or  memorandum  in  writing  under  the  Statute  of  Frauds,  and 
that  there  was  no  acceptance  of  the  goods. 


426  GRAHAM   V.    MUSSON.  [CHAP.    I. 

The  plaintiffs  replied  that  there  was  such  note  or  memorandum. 

At  the  trial  before  Tindal,  C.  J.,  a  verdict  was  found  for  the  plain- 
tiffs for  £132  9s.  'del.  subject  to  the  opinion  of  the  court  upon  a  case 
which  stated  that 

The  plaintiffs  were  wholesale  grocers  residing  in  London.  On  the 
19th  of  August,  1836,  the  plaintiffs'  traveller  Dyson  called  on  the 
defendant,  who  was  a  grocer  at  Gainsboro',  and  on  the  plaintiffs' 
account  sold  him  thirty  mats  of  sugar,  to  be  sent  to  Fenning's  wharf, 
which  is  a  wharf  on  the  Thames.  At  the  time  of  the  sale  Dyson,  in 
the  presence  and  at  the  desire  of  the  defendant,  made  and  signed  an 
entry  of  the  contract  of  sale  in  a  book  of  the  defendant :  that  book 
was  produced  by  the  defendant  at  the  trial,  and  the  following  is  a  copy 
of  the  entry  in  the  handwriting  of  Dyson:  — 

Of  North  &  Co.'  30  mats  maurs,  at  71s.  —  cash  two  months.     Fenning's 

wharf. 

Joseph  Dyson. 

August  19,  1836. 

The  sugars,  the  price  of  which  amounted  to  £132  35.  9c?.,  were  sent 
by  the  plaintiffs  to  Fenning's  wharf;  and  an  invoice  was  sent  to  the 
defendant,  stating  that  the  goods  were  to  go  by  the  vessel  called  the 
Fanny;  but  while  waiting  for  the  purpose  of  being  forwarded  by  the 
wharfingers  to  the  defendant  they  were  consumed  by  fire. 

The  question  for  the  opinion  of  the  court  was  Avhether  there  was  a 
sufficient  note  or  memorandum  in  writing  within  the  17th  section  of 
the  Statute  of  Frauds.  If  the  court  should  be  of  that  opinion,  the 
verdict  was  to  stand;  if  not,  a  nonsuit  was  to  be  entered. 

Crompton^  for  the  plaintiffs.  This  is  a  sufficient  memorandum  of  the 
bargain  within  the  17th  section  of  the  Statute  of  Frauds,  29  Car.  2, 
c.  8,  which  requires  a  memorandum  in  writing  of  the  bargain,  signed  by 
the  party  to  be  charged  or  his  authorized  agent,  except  where  the 
buyer  shall  receive  part  of  the  goods  sold ;  for  Dyson  must  be  taken  to 
have  signed  it  as  agent  for  the  defendant,  as  there  is  no  difference  in 
effect  between  writing  the  defendant's  name  and  wanting  his  own  name 
as  agent  for  the  defendant.  If  he  had  written  the  defendant's  name, 
no  doubt  could  have  arisen  ;  for  though  in  Wright  v.  Dannah  ^  it  was 
held  that  the  agent  who  signs  must  be  a  third  person  and  not  one  of  the 
contracting  parties,  and  in  Farebrother  v.  Simmons  ^  that  an  auction- 
eer's signature  is  not  sufficient  where  he  sues  as  one  of  the  parties  to 
the  contract,  those  cases  were  much  doubted  in  Bird  ?;.  Boulter,* 
where  it  was  held  that  the  entry  of  the  purchaser's  name  in  the  auc- 
tioneer's book  by  the  clerk  of  the  auctioneer  was  sufficient.  Hinde  v. 
Whitehouse,^  Simon   v.  Motivos,*'   and  Rucker   v.    Cammeyer''   have 

1  The  plaintiffs'  firm.     See  Graham  v.  Fretwell,  infra,  p.  433.  —  Ed. 

2  2  Campb.  203.  3  5  b.  &  Aid.  333.  *  4  B.  &  Add.  443. 
*  7  East,  558.                  6  3  Burr.  1921.                   '  1  Esp.  105. 


SECT.    VI,]  GRAHAM    V.    MUSSON.  •  427 

established  that  an  auctioneer  or  broker  is  the  agent  of  both  parties,  so 
as  to  bind  the  purchaser  by  his  signature;  and  in  Ilawes  v.  Forster^  it 
was  held  sufficient  for  the  purchaser  to  produce  a  bought  and  sold  note 
signed  by  the  agent  for  the  vendor;  so  that  there  could  be  no  objec- 
tion to  the  defendant's  ajipointing  the  agent  of  the  plnintiifs  to  act  also 
as  agent  for  himself  If  a  broker  uses  in  a  contract  only  Ins  own  name, 
without  disclosing  that  of  his  j^rincipal,  it  will  bind  his  j>rincipal,  and 
it  may  be  shewn  by  parol  testimony  for  whom  the  contract  is  made. 
"Wilson  t".  Ilart,'^  White  v.  Proctor,'  Kenworthy  v.  Schofield,*  Hicks 
V.  Hankin,^  Phillimore  v.  Barry.^  In  Champion  v.  Flummer'^  the 
note  was  signed  by  the  seller  only.  In  Cooper  v.  Smith  ^  it  was 
written  in  the  seller's  book,  not  as  here  in  the  buyer's ;  and  though  in 
Allen  V.  Bennet  ^  the  note  written  in  the  buyer's  book  without  naming 
the  buyer  was  connected  with  him  by  a  subsequent  letter,  yet  accord- 
ing to  the  principle  laid  down  by  Mansfield,  C.  J.,  the  note  written 
here  in  the  buyer's  book  by  an  agent  appointed  by  him  for  that  pur- 
pose ought  of  itself  to  suffice.  The  name  of  the  seller  appears,  and  it 
may  be  shewn  by  parol  testimony  that  the  name  Dyson  was  written 
for  that  of  the  buyer  and  at  his  request. 

Wiffhtman,  for  the  defendant.  The  j^rinciple  contended  for  on  the 
part  of  the  plaintiffs  would  introduce  all  the  mischiefs  which  the  Stat- 
ute of  Frauds  was  intended  to  prevent.  If  the  name  of  the  agent  wnll 
suffice,  at  least  it  must  appear  by  some  writing  that  the  party  signing 
is  an  agent :  there  is  no  case  which  decides  that  the  agency  may  be 
proved  by  parol  testimony.  The  name  of  the  party  to  be  charged  must 
be  in  writing,  or  that  of  his  authorized  agent;  and  the  agent  may 
prove  by  parol  for  whom  he  contracted ;  but  the  fact  of  agency  must 
appear  in  writing,  where  the  defendant  himself  does  not  sign  the  con- 
tract.    Bartlett  v.  Pickersgill.^" 

Here  however  Dyson  was  not  the  agent  of  the  defendant  to  bind 
him  to  the  contract :  he  made  the  entry  in  the  defendant's  book  for  his 
convenience  at  the  time,  but  not  as  agent  to  bind  him  to  the  contract. 

Crompton^  in  reply,  Bartlett  v.  Pickersgill  turned  on  the  4th  section 
of  the  statute ;  but  in  addition  to  the  cases  already  cited.  Short  v. 
Spackman  "  and  Sims  v.  Bond  ^^  shew  that  agency  may  be  established 
by  parol  testimony,  though  an  agent  cannot  discharge  himself  by  that 
species  of  evidence.    Jones  v.  Littledale." 

TiNDAL,  C.  J.  The  question  to  be  detemiined  is,  whether  this  note 
is  a  note  or  memorandum  of  the  bargain  within  the  meaning  of  the 
17th  section  of  the  Statute  of  Frauds ;  and  I  am  of  oi)inion  it  is  not. 

1  1  Mood.  &  Rob.  48.  2  7  Taunt.  295.  s  4  Taunt.  209. 

<  2  B.  &  C,  945,  5  4  Esp.  114.  «  1  Campb.  513. 

T  1  N.  R.  252.  8  15  Kast,  103.  9  3  Taunt.  169. 

10  4  East,  577,  note.  »i  2  B.  &  Adol.  902.  12  5  B.  &  Adol.  893, 
13  6  Adol.  &  Ell.  486, 


428  GRAHAM   V.    MUSSON.  [CHAP.   I. 

The  form  of  the  note  is,  "  Of  North  &  Co.  30  mats  maurs,  at  71s.  — 
cash  two  months  ;  Fenning's  wharf.     Joseph  Dyson." 

The  fii'st  objection  is  that  the  contract  does  not  disclose  the  name  of 
the  party  to  be  charged;  so  that  it  falls  within  the  objection  raised  in 
Champion  v.  Plummer,  where  the  court  held  that  a  note  signed  by  the 
seller  only  is  not  a  sufficient  memorandum  within  the  statute.  The 
answer  made  on  the  part  of  the  plaintifts  is  that  the  name  of  Dyson 
appears  at  the  bottom  of  the  note,  and  that  it  must  be  taken  that  he 
was  the  agent  of  the  buyer :  and  if  such  had  been  the  evidence,  I  am 
far  from  saying  that  such  consequence  would  not  follow  ;  for  it  is  clear 
that  a  contract  may  be  signed  by  an  agent  on  behalf  of  his  principal, 
and  that  his  signature  would  satisfy  the  Statute  of  Frauds ;  but  here 
the  name  of  Musson  the  buyer  is  not  signed  by  Dyson,  and  there  is  no 
evidence  that  Dyson  had  sufficient  authority  to  act  as  his  agent. 
Dyson  was  the  traveller  of  North  :  the  parties  present  are  Dyson  rep- 
resenting North,  and  the  defendant  acting  for  himself:  all  that  passes 
is  that  Dyson  enters  a  contract  on  the  defendant's  book ;  there  is  no 
evidence  that  Dyson  was  to  represent  the  defendant.  It  is  unnecessary 
therefore  to  decide  how  far  parol  evidence  is  admissible  to  establish 
the  fact  of  agency,  because  here  there  is  no  evidence  of  agency  at  all. 
In  Bird  v.  Boulter  the  names  of  both  the  contracting  parties  appeared ; 
and  it  was  impossible  to  say  that  the  clerk  of  the  auctioneer,  putting 
down  the  name  of  the  buyer  with  his  assent,  was  not  agent  for  that 
purpose.     Our  judgment  must  be  for  the  defendant. 

Vaughan,  J.  The  plaintiffs'  case  fails  in  their  not  shewing  that 
Dyson  was  the  defendant's  agent :  it  is  unnecessary  therefore  to  enter 
into  the  authorities  which  have  been  cited.  Dyson  was  agent  for  the 
plaintiffs,  and  the  defendant  in  requesting  him  to  make  the  entry  in  his 
book,  probably  sought  to  fix  the  plaintiffs,  but  not  to  appoint  Dyson  as 
agent  for  himself 

CoLTMAN,  J.  I  am  of  the  same  opinion.  It  is  not  desirable  to 
relax  the  provisions  of  the  Statute  of  Frauds.  I  am  not  prepared  to 
say  that  if  Dyson  had  been  the  clerk  of  Musson,  his  signing  his  own 
name  would  have  been  a  sufficient  memorandum  of  the  bargain  to 
satisfy  the  statute :  but  Dyson  is  not  the  agent  of  Musson  in  any 
respect;  and  though  if  he  had  signed  the  name  of  Musson  at  Musson's 
request,  the  case  might  have  fallen  within  the  authority  of  Bird  v. 
Boulter,  yet  here  where  he  signs  his  own  name  he  thereby  only  binds 
his  employer  North. 

Erskine,  J.  I  am  of  the  same  opinion.  It  is  contended  on  behalf 
of  the  plaintiffs  that  Dyson  Avould  be  himself  liable  on  this  contract, 
and  would  not  be  permitted  to  discharge  himself  by  parol  testimony ; 
but  that  he  might  charge  his  principal  by  shelving  that  he  signed 
as  agent,  and  that  the  cases  shew  it  is  enough  if  the  agent's  name 


SECT. 


VI.]  MARSHALL  V.    LYNN.  429 


appear  on  the  contract.  That  Inings  us  to  the  question  whether  Dyson 
was  the  agent  of  Musson ;  but  there  is  no  evidence  of  his  having  ever 
been  appointed  such  agent,  and  therefore  we  give 

Judgment  for  the  defendant. 


MARSHALL  v.  LYNN. 

In  the  Exchequer,  Hilary  Term,  1840. 

[Reported  in  6  ^feeson  ^  Welsby,  100.] 

Assumpsit  to  recover  damages  for  the  non-pertormance  of  a  contract 
to  purchase  of  the  phuntiff  a  quantity  of  potatoes.^ 

At  the  trial  before  Vaughan,  J.,  at  the  hist  summer  assizes  for  Cam- 
bridge, it  ajipeared  that  on  the  l-5th  of  December,  1838,  the  phuntiff 
and  defendant  entered  into  a  written  contract,  of  wliich  the  following 
is  a  copy :  — 

WiSBKCH,  15th  December,  1838. 

Bought  of  Mr.  Thomas  Marshall  as  many  potatoes  as  will  load  bis  brig  the 

Kitty,  Captain  William  Scott,  say  from   sixty  to  seventy  lasts,  to  be  shipped  on 

board  the  above  vessel  on  her  arrival  here  the  next  time  —  say  what  pink  kidneys 

he  has  at  4s.  6rf.  per  sack,  and  the  round,  white  and  blue  ones  at  4s.  3d.  per  sack, 

of  fifteen  ounces  net  merchants'  ware,  free  on  board  the  said  ship.     Payment, 

cash  on  delivery. 

(For  William  Lynn.)  '        Robert  Lynn. 

Witness :   T.  ALvrshall. 

On  tlie  25th  of  December  the  Kitty  arrived  at  "Wisbech,  that  being 
the  next  arrival  after  the  making  of  the  contract,  and  on  the  following 
day  the  i>laiutitrs  son  informed  the  defendant  that  the  Kitty  would  be 
ready  to  take  in  the  ])otatoes  on  the  28th,  when  the  defendant  requested 
that  the  plaintiff  Avould  let  the  vessel  go  to  Lynn  and  load  a  cargo  of 
potatoes  which  he  had  purchased  there  and  for  which  he  could  not 
obtain  a  vessel,  and  take  them  to  London ;  and  he  then  promised  the 
plaintiff  to  take  the  plaintiff's  potatoes  the  next  time  the  Kitty  came  to 
the  port  of  Wisbech.  This  proposal  was  agreed  to,  on  the  understanding 
that  the  plaintiff's  potatoes  should  be  taken  the  next  time  the  Kitty 
came.  In  pursuance  of  this  arrangement  the  Kitty  sailed  to  Lynn ;  and 
after  ])rooeeding  to  London  and  there  discharging  her  cargo  she  returned 
to  Wisbech,  and  arrived  there  on  the  7th  of  February.  On  the  8th  of 
.February  the  vessel  was  ready  to  receive  the  potatoes,  of  which  the 
defendant  had  full  notice,  and  was  requested  to  take  them  ;  but  the 
defendant  said  he  could  not  take  them  then,  nor  did  he  know  when  he 

1  In  the  original  report  the  pleadings  are  stated  at  considerable  length  ;  but  as  no 
question  arose  upon  them,  they  are  here  omitted.  —  Ed. 


430  MARSHALL   V.   LYNN.  [CHAP.    I. 

could ;  and  he  ultimately  declined  taking  them.  They  were  after- 
wards shipped  to  Loudon,  and  there  sold  by  the  plaintiff,  who  brought 
this  action  to  recover  the  loss  sustained  by  the  defendant's  non-per- 
formance of  the  contract.  It  was  contended  at  the  trial  on  the  part  of 
the  defendant  that  the  alteration  in  the  time  fixed  by  the  terms  of  the 
original  contract  for  shipping  the  potatoes  was  a  variation  of  it  in  a 
material  part,  and  ought  to  have  been  in  writing.  The  learned  judge 
directed  the  jury  to  find  a  verdict  for  the  plaintiff,  giving  the  defend- 
ant leave  to  move  to  enter  a  nonsuit.  Storks,  Serjt.,  in  Michaelmas 
term  obtained  a  rule  accordingly,  against  which 

Kelly  and  Gunning  noAV  shewed  cause.  A  contract  for  the  sale  of 
goods  to  an  amount  .exceeding  £10  must  be  in  writing  by  the  pro- 
visions of  the  Statute  of  Frauds ;  but  that  statute  does  not  require 
either  the  time  or  the  particular  mode  of  the  delivery  of  the  goods  to 
be  in  writing,  and  in  this  case  there  was  a  sufiicient  memorandum  of 
the  contract  for  the  sale.  This  case  falls  strictly  within  that  case 
of  Cuff  V.  Penn,^  and  is  distinguishable  from  Goss  v.  Lord  Nugent,'^ 
which  was  decided  upon  the  4th  section  of  the  Statute  of  Frauds,  and 
in  which  the  distinction  between  that  section  and  the  17th  is  recog- 
nized. The  court  did  not  there  decide  whether  Cuff  v.  Penn  was 
good  law  or  not ;  though  undoubtedly  Parke,  J.,  in  the  course  of  the 
argument,  a]ipears  to  have  doubted  the  correctness  of  that  decision. 
No  doubt  a  written  contract  cannot  be  contradicted  by  parol,  but  it 
may  be  varied  or  discharged  by  parol,  where  there  is  no  statutable 
provision  to  prevent  it.  The  17th  section  enacts  [stating  it].  That 
is  that  no  contract  shall  be  binding  for  the  sale  of  goods  unless  it  be 
in  writing :  it  is  not  material  that  the  time  stipulated  for  their  delivery 
should  be  in  writing,  as  that  is  not  a  material  part  of  the  contract 
of  sale.  The  object  of  the  statute  was  to  guard  the  public  against 
evidence  of  a  contract  being  given  where  no  contract  has  been  entered 
into  at  all ;  but  where  there  is  e\ddence  of  some  written  contract,  that 
is  sufficient,  without  setting  out  the  whole  of  the  contract.  If  it  is 
held  to  be  material  that  every  particular  of  a  contract  is  to  be 
inserted,  and  that  it  cannot  be  varied  from  afterwards,  the  conse- 
quences will  be  most  serious.  Suppose  in  the  case  of  a  sale  of  wines 
the  seller  enters  into  a  written  contract  to  deliver  the  wine  at 
28  Grosvenor  Street,  and  it  turns  out  on  inquiry  that  the  purchaser 
lives  at  No.  30,  is  he  to  be  at  liberty  to  repudiate  the  contract  on  that 
ground,  after  having  subsequently  requested  that  the  wine  should 
be  delivered  at  No.  30  ?  That  would  be  a  variation  as  to  the  place. 
Then  as  to  the  time :  suppose  a  gentleman  living  out  of  town  enters 
into  a  written  contract  by  which  goods  are  to  be  sent  by  a  particular 
coach,  as,  for  instance,  the  ten  o'clock  coach,  but  he  afterwards 
requests  them  to  be  sent  by  the  eleven  o'clock  coach,  because  he  is 
1  1  M.  &  Selw.  21.  2  5  B.  &  Adol.  58. 


SECT.    VI.]  MARSHALL    V.    LYNN.  431 

going  by  that  coach:  can  it  he  said  that  that  would  avoid  tlie  con- 
tract? Such  a  circumstance  as  tliat  hist  mentioned  is  of  frequent 
occurrence,  and  is  done  for  the  convenience  of  the  jiurcliaser.  To 
say  that  such  a  shght  variation  from  the  written  contract,  agreed 
to  subsequently  by  parol,  would  lender  it  nugatory,  would  lead  to  the 
greatest  injustice.  In  Cuff  y.  Penn,  Lord  Ellenborough  says:  "The 
principal  design  of  the  Statute  of  Frauds  was  that  parties  should 
not  have  iinposed  on  them  burdensome  contracts  which  they  never 
made,  and  to  be  fixed  with  goods  which  they  never  contemplated 
to  purchase.  .  .  .  But  here  what  has  been  done  is  only  in  perform- 
ance of  the  original  contract.  It  is  admitted  that  there  was  an  agreed 
substitution  of  other  days  than  those  originally  specified  for  its  per- 
formance:  still  the  contract  remains."  Noav  that  is  precisely  the 
present  case  :  there  one  day  was  substituted  for  another ;  here  one  of 
the  ship's  voyages  was  substituted  for  another.  The  case  of  Warren 
V.  Stagg,  cited  in  Littler  v.  Holland,^  shews  that  the  time  of  delivery 
is  not  a  material  part  of  the  contract ;  and  if  varied  by  subsequent 
agreement,  it  is  to  be  considered  only  as  a  continuation  of  the  first 
contract.  And  in  Iloadly  v.  M'Laine  -  it  was  held  that  where  an 
executory  contract  is  entered  into  for  the  fabrication  of  goods,  without 
any  agreement  as  to  the  price,  the  memorandum  of  the  contract 
required  by  the  Statute  of  Frauds  is  sufticient  without  specification  of 
price.  That  shews  that  the  statute  does  not  require  every  tenn  of  the  . 
contract  to  be  in  writing.  [Parke,  B.  No  doubt,  every  particul^ir 
of  the  contract  need  not  be  mentioned ;  but  if  mentioned,  it  must  be 
observed.  I  do  not  apjirehend  you  can  go  into  a  distinction  between 
the  material  and  the  immaterial  parts  of  the  contract.  How  can  you 
tell  what  part  of  a  contract  is  material,  and  what  not  ?  The  recent 
case  of  Stead  v.  Dawber  ^  appears  to  have  entirely  overturned  the 
authority  of  CuiF  v.  Penn.]  That  case  is  distinguishable  fi-om  the 
present,  as  there  the  goods  were  of  a  fluctuating  value,  the  price  was 
not  mentioned,  and  therefore  the  time  of  delivery  was  of  the  essence 
of  the  contract.  In  this  case  the  price  of  the  goods  was  fixed  by  the 
contract. 

iStorkSy  Sei-jt.,  contra,  was  stopped  by  the  court. 

Parke,  B.  I  am  of  opinion  that  this  rule  ought  to  be  made 
absolute.  If  it  had  not  been  for  the  decision  in  the  case  of  Stead 
V.  Dawber  I  should  have  wished  to  hear  the  argument  on  the  other 
side,  and  probably  to  have  taken  time  to  consider ;  but  as  the  case  of 
Cuff  V.  Penn,  which  had  before  been  very  much  doubted,  ajipears  to 
have  been  overruled  by  Stead  v.  Dawber,  we  do  not  think  it  necessary 
to  do  so.  Here  there  was  an  original  contract  in  writing  to  send  these 
goods  by  the  first  vessel ;  an  alteration  as  to  the  time  of  their  delivery 
was  subsequently  made  by  parol ;  and  the  point  to  be  decided  is, 
1  3  T.  R.  691.  -i  10  Bing.  482, 4  M.  &  Scott,  340.  '  2  P.  &  D.  447. 


432  MARSHALL   V.   LYNN.  [CHAP.    I. 

whether  such  an  alteration  by  parol  of  the  wi'itten  contract  can  be 
binding.     It  appears  to  me  that  it  cannot,  and  that  the  same  rule 
must  prevail  as  to  the  construction  of  the  17th  section  of  the  Statute 
of  Frauds  which  has  already  prevailed  as  to  the  construction  of  the 
4th  section.     The  decision  in  Goss  v.  Lord  Nugent,  the  ]irinciple  of 
which  I  have  no  doubt  is  perfectly  correct,  has  clearly  established,  with 
respect  to  the  case  of  a  contract  relating  to  the  sale  of  an  interest  in 
lands,  that  if  the  original  contract  be  varied,  and  a  new  contract  as  to 
any  of  its   terms   substituted   in  the   place  of  it,   that  new  contract 
cannot  be  enforced  in  law  unless  it  also  be  in  writing.     The  question 
is,  whether  the  same  reasoning  does  not  apply  to  a  contract  for  the  sale 
of  goods  under  the   17th  section.     [His  Lordship  read  that  section.] 
It  appears  to  me  that  no  distinction  can  be  made ;  and  I  must  also 
observe  that  it  seems  to  me  to  be  unnecessary  to  inquire  what  are  the 
essential  parts  of  the  contract   and   Avhat   not,   and  that  every  part 
of  the  contract  in  regard  to  which  the  parties  are  stipulating  must  be 
taken  to  be  material ;    and  perhaps  therefore  the  latter  part  of  the 
judgment  in  Stead  v.  Dawber  may  be  considered  as  laying  down  too 
limited  a  rule.     Every  thing  for  which  the  parties  stipulate  as  forming 
part  of  the  contract  must  be  deemed  to  be  material.     Now  in  this 
case  by  the  original  contract  the  defendant  was  to  accept  the  goods, 
provided  they  were  sent   by  the  first  ship:    the   parties  afterwards 
agreed  by  parol  that  the   defendant  would  accept  the  goods  if  they 
were  sent  by  the  second  ship  on  a  subsequent  voyage  :  that  appears  to 
me  to  be  a  diiferent  contract  from  what  is  stated  before.     Such  was 
my  strong  impression,  independently  of  any  decision  on  the  point; 
but  the  case  of  Stead  v.  Dawber  is  precisely  in  point  with  the  present ; 
and  on  looking  at  the  judgment  it  does  not  appear  to  proceed  alto- 
gether upon  the  time  being  an  essential  part   of  the  contract,  but 
on  the  ground  that  the  contract  itself;  whatever  be  its  terms,  if  it  be 
such  as  the  law  recognizes  as  a  contract,  cannot  be  varied  by  parol.    It 
has  been  said  that  the  adoption  of  this  rule  will  produce  a  great  deal 
of  inconvenience.     I  am  not  however  aware  of  much  practical  incon- 
venience that  can  result  from  it,  and  none  that  furnishes  any  reason 
for  altering  the  rule  of  law  in  respect  of  these  mercantile  contracts. 
They  frequently  vary  in  terms,    and  admit  of  some  latitude  of  con- 
struction;  but  the  expressions  used  in  them  generally  indicate  the 
intention  of  the  parties  sufficiently  well :  there  is  a  sort  of  mercantile 
short-hand,  made  up  of  few  and  short  expressions,  which  generally 
expresses   the   full  meaning    and  intention   of  the   parties.      On  the 
whole,  it  appears  to  me  that  no  reasonable  distinction  can  be  made 
between  this  case  and  that  of  Goss  v.  Lord  Nugent.     This  is  a  new 
contract,  incorporating  new  terms ;  and  I  think  it  cannot  be  enforced 
by  action  unless  there  is  a  note  in  Avriting  expressing  those  new  terms 
distinctly,  or  in  the  mercantile  phraseology  which,  as  I  have  already 


SECT.    VI.]  GRAHAM    V.    FRETWELL.  433 

said,  admits  of  some  latitude  of  interpretation.  This  action  therefore 
cannot  be  maintained,  and  a  nonsuit  must  be  entered. 

Aldersox,  B.  I  am  of  the  same  opinion,  and  entirely  concur  with 
what  has  fallen  from  my  brother  Parke.  By  the  4th  section  of  the 
Statute  of  Frauds  it  is  provided  that  the  contracts  therein  mentioned 
shall  be  in  writino^,  otherwise  no  action  shall  be  maintained  on  them. 
The  17th  section  requires  that  some  note  or  memorandum  in  writing 
of  the  bargain  before  made  shall  be  signed  by  the  party  to  be 
charged  by  such  contract,  or  his  agent  lawfully  autliorized.  There 
is  undoubtedly  a  distinction  between  the  two  enactments;  for  by  the 
4th  section  the  whole  contract  must  be  in  Avriting,  including  the  con- 
sideration which  induced  the  party  to  make  the  stipulation  by  which 
he  is  to  be  bound,  but  by  the  17th  section  it  is  sufficient  if  all  the 
terms  by  which  the  defendant  is  to  be  bound  are  stated  in  writing,  so 
as  to  bind  him.  Now  here  there  is  a  stipulation  which  is  to  bind  the 
defendant ;  and  it  is  proposed  to  alter  that  by  parol,  which  cannot  be 
done.  It  is  much  better  plainly  to  define  what  the  law  is  than  to 
attempt  to  create  fanciful  distinctions.  Here  there  is,  as  to  one  of  the 
terms  by  Avhich  the  party  is  to  be  bound,  entirely  a  new  contract ;  and 
the  law  requires  that  such  new  contract  shall  be  in  writing. 

Gurnet,  B.  I  am  of  th.e  same  opinion.  This  is  a  new  contract, 
and  the  law  which  requires  the  one  contract  to  be  in  writing  requires 
the  other  to  be  in  writing  also. 

RoLFE,  B.,  concurred.  .  Hide  absolute. 


GRAHA3I   AND  Others   v.   FRETWELL   aisT)   Another. 
In  the  Common  Pleas,  November  10,  1841. 

[Reported  in  3  Manning  Sf  Granger,  368.] 

Assumpsit  for  goods  sold  and  delivered.  The  defendants  pleaded, 
first,  non  asstimpsit ;  secondly,  that  there  was  no  note  or  memorandum 
in  writing  under  the  Statute  of  Frauds,  and  no  acceptance  of  the 
goods.  To  the  latter  plea  the  plaintifis  replied  that  there  was  such 
note  or  memorandum. 

The  cause  was  tried  before  Tindal,  C.  J.,  at  the  London  sittings  after 
Michaelmas  term,  1838,  when  a  verdict  was  found  for  the  plaintiffs,  sub- 
ject to  the  o]nnion  of  the  court  on  the  following  case :  — 

The  plaintiffs  are  wholesale  grocers,  residing  in  London  and  carry- 
ing on  business  under  the  firm  of  "North,  Sinqison,  Graham,  &  Co." 
On  the  I'Jth  of  August,  1836,  the  plaintiffs'  traveller,  Joseph  Dyson, 
called  on  the  defendants,  who  are  grocers  residing  at  Gainsborough, 
VOL.  I.  28 


434  GRAHAM   V.    FRETWELL.  [CHAP.    I. 

and  produced  to  them  a  sample  of  Mauritius  sugar  of  the  plaintiffs ; 
and  on  the  account  of  the  plaintiffs  sold  to  the  defendants  one  hundred 
and  fifty  mats  of  Mauritius  sugar,  to  be  sent  to  Fenning's  wharf, 
which  was  a  wharf  on  the  Thames  where  vessels  trading  from  Gains- 
borough to  London  loaded  and  unloaded,  and  to  be  forwarded  from 
Fenning's  wharf  by  the  fix'st  and  second  ships  to  Gainsborough.  At 
the  time  of  the  sale  the  defendant  John  Fretwell,  in  the  presence  of 
Dyson,  made  an  entry  of  the  contract  of  sale  in  a  book  of  the  defend- 
ants then  produced  for  that  purpose ;  and  Dyson,  at  the  request  and 
in  the  presence  of  the  defendant  John  Fretwell,  signed  the  entry  so 
made.  The  entry  was  in  the  handwriting  of  the  defendant  John  Fret- 
well, but  the  signature  to  it  was  in  the  handwriting  of  Dyson.  The 
entry  was  as  follows  :  — 

Of  North,  Simpson,  Graham,  &  Co.,  London. 

150  mats  Ma.  sugar,  at  71s.  6d.,  as  sample. 

Joseph  Dyson. 
Per  sea,  Fenning's  wharf,  first  and  second  ships. 

On  several  occasions  prior  to  the  19th  of  August,  1836,  Dyson,  as 
the  traveller  of  the  plaintiffs,  sold  by  sample  to  the  defendants  sugars 
to  be  supplied  to  them  by  the  j^laintiffs,  which  sugars  were,  before  the 
said  19th  of  August,  1836,  suj^plied  to  and  accepted  by  the  defendants, 
and  at  the  expiration  of  the  credit,  and  before  the  19th  of  August, 
1836,  were  paid  for  by  the  defendants.  On  the  occasions  of  the  last- 
mentioned  sales,  notes  in  the  form  hereinafter  stated  were  entered  by 
the  defendants  or  one  of  them  in  their  book,  and  signed  by  Dyson  at 
the  request  of  the  defendants. 

Of  North,  Simpson,  Graham,  &  Co.,  London. 

6  tierces  sugar,  ^^^  1  to  5,  at  64s.  per  cwt. 

2  hhds.  pieces 67s. 

1    do.    Hambro  loaves    .     .     80s. 
1    do.    Titlers 79s. 


Gainsborough,  22d  of  August,  1833. 

To  Hay's  wharf,  Irongate. 


Joseph  Dyson. 


[The  case  then  set  out  twelve  other  entries  of  sales  of  a  similar  char- 
acter, extending  through  the  years  1833, 1834,  and  1835,  and  continuing 
down  to  the  month  of  July,  1836.] 

On  the  23d  of  August,  1836,  the  plaintiffs  sent  sixty  mats  of  sugar, 
the  same  as  the  sample  produced  by  Dyson  at  the  time  of  the  sale  to 
the  defendants,  to  Fenning's  wharf;  and  on  the  same  day  an  invoice 
was  sent  to  the  defendants,  stating  that  the  sixty  mats  would  go  by  the 
Fanny,  Captain  Pycock,  which  was  the  first  ship  going  to  Gainsborough, 
and  was  then  expected  to  sail  in  a  few  days,  and  the  rest  by  the  next 
ship. 


SECT.    VI.]  GRAHAM   V.    FRETWELL.  435 

On  the  29th  of  August,  1836,  the  remaining  ninety  mats  were  sent 
by  tlic  i»l:iiiitifts  to  Feuning's  wharf,  to  be  forwarded  to  Gainsborough 
by  the  second  ship  which  would  sail,  the  Fanny  not  having  yet  sailed. 
Of  these  last  ninety  mats,  sixty  were  of  the  same  description  and  (jual- 
ity  as  the  sami)le  produced  by  Dyson  to  the  defendants,  the  remaining 
thirty  mats  were  of  the  same  description,  —  that  is  to  say,  Mauritius 
sugar,  —  but  of  a  superior  quality,  and  were  furnished  by  the  plaintiffs 
at  the  same  price  as  the  others. 

On  the  c\ening  of  the  29th  of  August,  1836,  all  the  goods,  the  price 
of  which  amounted  to  £666  7.s-.  6f/.,  whilst  waiting  at  Fenning's  wharf 
to  be  forwarded  by  the  wharfingers  to  the  defendants,  were  consumed 
by  fire. 

Evidence  was  admitted  at  the  trial  on  the  part  of  the  plaintiffs  to 
prove  (and  which,  if  admissible,  did  prove)  that  according  to  the  cus- 
tom of  the  trade  the  words  "  as  sample  "  were  satisfied  by  delivering 
sugars  of  the  same  description  as,  but  superior  in  quality  to,  the  sam- 
ple.    This  evidence  was  objected  to  on  the  part  of  the  defendants. 

The  questions  for  the  opinion  of  the  court  are  :  First,  whether  there 
was  a  suflficient  note  or  memorandum  within  the  17th  section  of  the 
Statute  of  Frauds ;  secondly,  whether  the  evidence  as  to  the  custom 
was  properly  admitted.  If  the  court  shall  be  of  opinion  for  the  plain- 
tiffs on  both  the  above  questions,  the  verdict  is  to  stand.  If  the  court 
shall  be  of  opinion  in  favor  of  the  defendants  upon  the  first  question,  a 
nonsuit  is  to  be  entered.  If  the  court  shall  be  of  opinion  in  favor  of 
the  plaintiffs  upon  the  first  question,  but  shall  be  of  opinion  that  the 
evidence  as  to  custom  was  not  properly  admitted,  such  evidence  is 
to  be  considered  as  struck  out  of  the  case,  and  the  question  whether 
the  plaintiffs  were  then  entitled  to  recover  for  all  or  any  part  of  the 
goods  in  question  is  to  be  for  the  opinion  of  the  court.  If  the  plain- 
tiffs are  held  entitled  to  recover  for  any  of  the  sugars  in  question,  the 
verdict  is  to  be  entered  for  the  value  of  as  many  mats  of  sugar  as 
the  court  shall  direct,  estimated  at  71s.  M.  per  cwt.^  The  court 
to  be  at  liberty  to  draw  any  inference  which  a  jury  might  have  drawn, 
and  either  party  to  be  at  liberty  to  turn  the  case  into  a  special  ver- 
dict. 

Channell,  Serjt.,  for  the  plaintiffs.  The  plaintiffs  ai-e  entitled  to 
recover  the  value  of  the  150  mats  of  sugar  contracted  to  be  sold 
by  them  to  the  defendants.  Since  the  trial  the  case  of  Graham  v. 
Musson  -  has  been  decided  in  this  court,  but  that  case  is  distinguish- 
able in  several  respects  from  the  present.  There  three  points  were 
taken  in  the  argument  on  behalf  of  the  plaintiffs:  First,  that  Dyson 
the  plaintiffs'  traveller  was,  for  the  purpose  of  that  contract,  to  be 
considered  as  the  agent  of  the  defendant ;  secondly,  that  it  was  not 

1  It  appears  to  be  assumed  that  the  mats  were  all  of  equal  weight. 

2  5  New  Cases,  603,  7  Scott,  769. 


436  THORNTON    V.    CHARLES.  [CHAP.   I. 

essential  for  the  name  of  the  defendant  to  appear  in  the  contract ; 
and,  thirdly,  that  parol  evidence  of  Dyson's  agency  was  admissible. 
The  case  was  however  decided  on  the  ground  that  there  Avas  no 
evidence  to  shew  that  Dyson  was  the  agent  of  the  defendant.  There 
the  entry  was  altogether  in  Dyson's  writing:  here  the  signature 
alone  is  his,  the  rest  of  the  entry  being  by  one  of  the  defendants. 
Also  in  that  case  but  one  transaction  was  proved  between  the  par- 
ties ;  whereas  here  twelve  other  transactions,  commencing  in  1833 
and  extending  down  to  the  period  of  the  present  contract,  are  set 
forth  in  the  special  case.  It  further  appears  that  on  every  one  of  the 
occasions  when  the  purchases  were  made  the  defendants  produced 
their  book,  which  was  signed  by  Dyson  at  their  request,  and  that 
the  goods  were  afterwards  duly  delivered  and  accepted.  As  the 
court  have  a  power  given  them  here  Avhich  they  did  not  possess  in 
the  former  case,  —  namely,  to  draw  any  inference  which  a  jury  might 
have  drawn,  —  they  may  properly  infer  from  the  various  transactions 
set  out  that  Dyson  was  authorized  by  the  defendants  to  sign  this  con- 
tract on  their  part ;  a  conclusion  which  they  might  not  feel  at  liberty  to 
come  to  in  Graham  v.  Musson  fi-om  the  solitary  instance  upon  which 
the  question  there  turned.  [Tixdal,  C.  J.  The  signing  of  the  entry 
in  the  defendants'  book  would  tend  to  make  it  obligatory  on  the  plain- 
tiffs rather  than  on  the  former.]  An  authority  is  fi-equently  to  be 
inferred  from  a  long  course  of  dealing ;  and  here  it  is  submitted  that 
enourrh  is  shewn  in  the  case  to  warrant  the  court  in  drawing  the  con- 
elusion  that  Dyson  signed  this  entry  as  the  agent  of  the  defendants. 

Sir  F.  Pollock,  for  the  defendants,  was  stopped  by  the  court. 

TiNDAL,  C.  J.     This  case  is  not  to  be  distinguished  from  Graham  v. 
Musson. 

CoLTMAN,  Erskine,  and  Maule,  JJ.,  concurred. 

Judgment  of  nonsuit,  with  liberty  to  the  2^lcLi^^tiffs  to  turn  the 
special  case  into  a  special  verdict. 


THORNTON  ai^d  Another  v.   CHARLES. 
In  THE  Exchequer,  April  29,  1842. 

[Reported  in  9  Meeson  Sf  Welshy,  802.] 

Assumpsit  for  goods  sold  and  delivered,  and  on  an  account  stated. 

Plea,  non  assumjjsit. 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  London  sittings  after 
last  Michaelmas  term,  it  appeared  that  the  action  was  brought  for  the 
price  of  50  casks  of  tallow  alleged  to  have  been  sold  and  delivered  by  the 


SECT.    VI.]  THORNTON    V.    CHARLES.  437 

plaintiffs  to  the  defendant.  On  the  20th  of  February,  1841,  the  plain- 
tiffs instructed  their  brokers  Messrs.  Smith  &  Marshall  to  sell  for  them 
200  casks  of  tallow,  to  be  delivered  between  the  1st  of  Seittember 
and  the  31st  of  December  following,  and  on  the  same  day  received 
from  the  brokers  a  sold  note  in  the  following  terms :  "  London,  20th 
February,  1841.  Sold,  for  Messrs.  B.  &  R.  Thornton  &  West,  to  our 
principals  200  casks  of  St.  Petersburg  first  sort  of  yellow  candle  tal- 
low," &c.  The  bought  note  was  in  the  same  terms,  exce])t  that  it 
stated  the  purcha'se  to  be  of  50  casks  "  for  our  principals."  The  entry 
in  the  brokers'  book  was  as  follows:  "London,  20th  February,  1841. 
Sold  for  Messrs.  R.  Thornton  &  West  (Messrs.  Paton  &  Charles,  50 ; 
Mr.  .John  Smith,  50;  Messrs.  Cattley  &  Stephenson,  100)  200  of  St. 
Petersburg  first  sort  of  yellow  candle  tallow,"  &c.  All  the  above 
documents  were  put  in  evidence  at  the  trial.  The  names  of  the  prin- 
cipals on  either  side  were  not  disclosed.  .  .  . 

At  the  trial  it  was  objected  for  the  defendant  that  the  plaintiffs  ought 
to  be  nonsuited  on  the  ground  that,  there  being  a  variance  between  the 
bought  and  sold  notes,  and  the  entry  in  the  brokers'  book  not  being 
admissible,  no  valid  contract  had  been  proved.  The  learned  judge 
being  of  that  opinion  nonsuited  the  plaintiffs,  giving  them  leave  to 
move  to  enter  a  verdict  if  the  court  should  be  of  a  contrary  oi)inion. 

H.  V.  Richards  in  Hilary  term  last  obtained  a  rule  accordingly,  or 
for  a  new  trial. 

Crotodei' •<m(\.  C.  A.  TFoof?  now  shewed  cause.  There  was  no  legal 
contract  entered  into  with  the  plaintiffs,  inasmuch  as  there  was  a 
variance  between  the  bought  and  sold  notes  with  respect  to  the  number 
of  casks.  The  bought  and  sold  notes  are  the  only  legal  evidence  of  the 
contract.  Thornton  v.  Kempster.^  It  is  clear  from  Hawes  v.  Forster  ■^ 
that  the  bought  and  sold  notes  constitute  the  contract,  and  therefore 
the  brokers'  book  is  not  admissible  to  prove  it.  [Parke,  B.  I  always 
thought  it  was,  because  the  broker  is  the  agent  of  both  parties  :  he  is 
sworn  to  do  his  duty,  and  bound  by  his  bond  to  enter  the  terms  prop- 
erly. May  not  the  entry  in  his  book  therefore  be  evidence  of  the  con- 
tract between  the  parties?]  In  Thornton  v.  Meux,^  Abbott,  C.  J.,  says  : 
« I  used  to  think  at  one  time  that  the  broker's  book  was  the  proper 
evidence  of  the  contract ;  but  I  afterwards  changed  my  opinion,  and 
held,  confoi-mably  to  the  opinion  of  the  rest  of  the  court,  that  the 
copies  delivered  to  the  parties  were  evidence  of  the  contract  they 
entered  into,  still  feeling  it  to  be  a  duty  in  the  broker  to  take  care  that 
the  copies  should  correspond."  And  in  Hawes  v.  Forster  it  was  held 
that,  where  a  contract  is  made  through  a  broker,  the  bought  and  sold 
notes  delivered  to  the  parties  constitute  the  contract,  not  the  entry 
made  by  the  broker  in  his  book.  That  case,  it  is  submitted,  settled  the 
law  on  this  subject.  [Parke,  B.  This  is  not  a  case  like  Hawes  v. 
Forster:  here  the  bought  and  sold  notes  do  not  agree,  and  therefore 
1  5  Taunt.  786.  2  i  M.  &  Eob.  368.  »  Moo.  &  Malk.  44. 


438  THORNTON    V.    CHARLES,  [CHAP.    I. 

there  is  no  contract  on  the  face  of  them.  The  case  of  Hawes  v.  Forster 
is  not  an  authority  against  the  reception  of  such  evidence:  it  only 
shews  that,  although  there  be  a  contract  in  the  broker's  book,  the 
parties  may  by  their  own  act  constitute  the  bought  and  sold  notes  the 
contract.  The  difficulty  with  me  is,  why  is  a  broker  called  upon  to 
sign  his  books,  and  obliged  by  his  bond  to  do  so,  if  they  are  not  to 
have  a  binding  effect  ?]  In  Thornton  v.  Meux  the  notes  did  not  agree ; 
so  also  in  Thornton  v.  Kenipster.  .  .  . 

E.  V.  Bichards  and  3Iartin,  contra.  The  real  contract  between  the 
parties  is  that  Avhich  takes  place  verbally  ;  but  the  statute  requires  that 
the  contract  should  be  in  writing;  and  if  any  memorandum  of  that 
contract  is  in  writing,  it  is  sufficient.  The  bought  and  sold  notes  may 
constitute  such  memorandum ;  but  if  there  be  none,  or  none  which  are 
valid,  then  the  contract  in  the  broker's  book  is  the  real  evidence  of  the 
contract,  that  being  an  entry  signed  by  an  agent  for  both  parties  law- 
fully authorized  so  to  do.  What  was  said  by  Abbott,  C.  J.,  in  Thornton 
V.  Meux  has  been  misunderstood.  In  Heyman  v.  Neale,^  Loi'd  Ellen- 
borough  says :  "  After  the  broker  has  entered  the  contract  in  his  book, 
I  am  of  opinion  that  neither  party  can  recede  from  it.  The  bought 
and  sold  note  is  not  sent  on  approbation,  nor  does  it  constitute  the 
contract.  The  entry  jnade  and  signed  by  the  broker,  who  is  the  agent 
of  both  parties,  is  alone  the  binding  contract.  What  is  called  the 
bought  and  sold  note  is  only  a  copy  of  the  other,  which  would  be  valid 
and  binding  although  no  bought  or  sold  note  was  ever  sent  to  the 
vendor  or  purchaser."  [Loku  Abikger,  C.  B.  That  was  a  case  where 
the  bought  and  sold  notes  agreed ;  but  I  have  this  experience,  that 
when  they  differed  Lord  Ellenborough  nonsuited  the  plaintiff.  If  the 
notes  differ,  it  shews  there  is  no  contract  at  all.  Pakke,  B.  Goom  v. 
Aflalo  -  was  the  first  case  in  which  it  was  held  that  the  bought  and 
sold  notes  were  sufficient  evidence  of  the  contract.]  In  Grant  v. 
Fletcher  ^  the  broker's  note  was  held  not  to  be  binding,  because  it  was 
not  signed ;  but  there  Abbott,  C.  J.,  says :  "  The  broker  is  the  agent  of 
both  parties,  and  as  such  may  bind  them  by  signing  the  same  contract 
on  behalf  of  buyer  and  seller.  But  if  he  does  not  sign  the  same  con- 
tract for  both  parties,  neither  will  be  bound.  The  entry  in  the  broker's 
book  is  properly  speaking  the  original,  and  ought  to  be  signed  by  him. 
The  bought  and  sold  notes  delivered  to  the  parties  ought  to  be  copies 
of  it.  A  valid  contract  may  probably  be  made  by  perfect  notes  signed 
by  the  broker  and  delivered  to  the  parties,  although  the  book  be  not 
signed ;  but  if  the  notes  are  imperfect,  as  in  the  present  case,  an 
unsigned  entry  in  the  book  will  not  supply  the  defect."  Does  it  not 
follow  from  what  he  there  says  that,  if  the  book  had  been  signed,  it 
would  have  been  in  his  opinion  sufficient?  It  does  not  appear  from  the 
report  of  Thornton  v.  Meux  whether  the  broker's  entry  in  that  case 

1  2  Campb.  337.  2  6  B.  &  C.  117,  9  D.  &  E.  148. 

3  5  B.  &  C.  436,  8  D.  &  R.  59. 


SECT.    VI.]  THORNTON    V.    CHARLES.  439 

was  sitjned  or  not.  In  Goora  v.  Aflalo,  Abbott,  C.  J.,  says :  "  Tlie  entry 
in  the  book  has  been  called  the  original,  and  the  notes  copies,  but  there 
is  not  any  actual  decision  that  a  valid  contract  would  not  be  made  by 
notes  duly  signed  if  the  entry  in  the  book  be  unsigned."  That  case 
does  not  decide  that  if  the  book  were  signed  it  would  not  be  good 
evidence  of  the  contract,  but  rather  the  contrary.  In  Ilendereon  v. 
Barnewall,^  Hullock,  B.,  says:  "Bought  and  sale  notes  are  not  essential 
to  the  validity  of  the  contract:  the  entry  signed  by  the  broker  is  alone 
the  binding  contract,  said  Lord  Ellenborough  in  the  case  of  Hcyman 
V.  Nealc,  which  doctrine  is  confirmed  by  the  decision  in  Grant  v. 
Fletcher."  .  .  . 

Pakkk,  B.  .  .  .  I  apprehend  it  has  never  been  decided  that  the  note 
entered  by  the  broker  in  his  book  and  signed  by  him  would  not  be 
good  evidence  of  the  contract  so  as  to  satisfy  the  Statute  of  Frauds, 
there  being  no  other.  The  case  of  Hawes  v.  Forster  underwent  much 
discussion  in  the  Court  of  King's  Bench  when  I  was  a  member  of  that 
court,  and  there  was  some  difference  of  opinion  amongst  the  judges; 
but  ultimately  it  went  down  to  a  new  trial,  in  order  to  ascertain 
whether  there  was  any  usage  or  custom  of  trade  which  makes  the 
broker's  note  evidence  of  the  contract.  In  that  case  there  was  a  signed 
entry  in  the  book,  which  incorporated  the  terms  of  making  the  con- 
tract void  in  the  event  of  the  non-arrival  of  the  goods  within  a  certain 
time.  The  bought  and  sold  notes  which  were  delivered  to  the  parties 
omitted  that  clause.  Certainly  it  was  the  impression  of  part  of  the 
court  that  the  contract  entered  in  the  book  was  the  original  contract, 
and  that  the  bought  and  sold  notes  did  not  constitute  the  contract. 
The  jury  found  that  the  bought  and  sold  notes  were  evidence  of  the 
contract,  but  on  the  ground  that  those  documents,  having  been  deliv- 
ered to  each  of  the  parties  after  signing  the  entry  in  the  book,  consti- 
tuted evidence  of  a  new  contract  made  between  the  parties  on  the 
footing  of  those  notes.  That  case  may  be  perfectly  correct ;  but  it 
does  not  decide  that,  if  the  bought  and  sold  notes  disagree,  or  there  be 
a  memorandum  in  tlie  book  made  according  to  the  intention  of  the 
parties,  that  memorandum  signed  by  the  broker  would  not  be  good 
evidence  to  satisfy  the  Statute  of  Frauds.  .  .  . 

Lord  Abixger,  C.  B.  I  have  purposely  avoided  giving  any  opinion 
about  the  question  of  the  bought  and  sold  notes,  but  I  desire  it  to  be 
understood  that  I  adhere  to  the  opinion  given  by  me,  that  Avhon  the 
bought  and  sold  notes  differ  materially  from  each  other  there  is  no  con- 
tract, unless  it  be  shewn  that  the  broker's  book  was  known  to  the 
parties.  .  .  .  Mule  absolute? 

1  1  Y.  &  .1.  387. 

2  i.  e.,  for  a  new  trial,  upon  the  ground  that  there  was  some  evidence  that  the  tal- 
low had  been  delivered  to  the  defendant  and  the  statute  satisfied  in  that  mode.  As 
that  question  turned  entirely  upon  special  facts,  raising  no  point  of  law  and  possessing 
no  general  interest,  so  much  of  the  case  as  relates  to  it  has  been  omitted.  —  Ed. 


440  ASHCROPT    V.  MORRIN.  [CHAP.    I. 

ASHCROFT   AND  Others   v.  MORRIN   and   Anotheb. 
In  the  Common  Pleas,  June  8,  1842. 

[Reported  in  4  Manning  Sp  Granger,  450.] 

Assumpsit  for  goods  sold  and  delivered.     Plea,  non  assumpsit. 

At  the  trial  before  Cresswell,  J.,  at  the  London  sittings  after  last 
Hilary  terai,  it  appeared  that  the  plaintiffs  were  coopers  in  London, 
and  the  defendants  were  storekeepers  at  St.  Vincent.  The  ac-tion 
was  brought  to  recover  £80  7s.  9d.  for  porter  sold  by  the  plaintiffs  to 
the  defendants.  To  prove  the  order  the  following  letter  addressed  to 
the  plaintiffs  and  signed  by  the  defendants  was  put  in :  — 

St.  Vincent,  April  3d,  1840. 
Messrs.  W.  Ashcroft  &  Son. 

Gentlemen,  — In  our  line  of  business  we  dispose  of  a  good  deal  of  malt  liq- 
uor, &c.  ;  and  Captain  Neilsbn  of  the  ship  Emerald  has  recommended  us  to  try 
your  house  for  this  arti(!le.  We  therefore  annex  you  an  order  for  what  we  will 
require  just  now,  which  please  send  by  return  of  the  Emerald.  Let  the  quality 
be  fresh  and  good,  and  on  moderate  terms.  The  Emerald  will  only  be  in  Lon- 
don about  ten  days.  The  amount  of  Invoice  we  will  either  pay  to  Captain  Neil- 
son  or  remit  you  in  a  bill  payable  in  London,  as  soon  as  we  know  the  amount. 

We  are,  &c..  John  and  Samuel  MoRRm. 

To  this  letter  the  following  order  was  annexed  :  — 

Order  for  porter,  t&c. :  — 
^  4  hhds.  porter. 
I  4  barrels  ditto, 
y^  4  puncheons  or  butts  brown  stout  ditto. 
^-  2  hhds.  ale  or  beer,  not  the  weakest,  but  a  good  body. 

John  and  Samuel  Morrin. 

The  goods  were  shipped  on  board  the  Emerald,  which  vessel  was 
wrecked  on  her  voyage  out. 

On  the  part  of  the  defendants  it  was  contended  that  there  was  no 
sufficient  note  or  memorandum  of  the  bargain  within  the  17th  section 
of  the  Statute  of  Frauds,  inasmuch  as  no  price  was  mentioned  in  the 
order ;  and  also  that  the  acceptance  by  the  captain  of  the  Emerald  was 
not  an  acceptance  by  the  defendants  within  that  section.  Hanson  v. 
Armitage.^  The  plaintiffs  were  nonsuited ;  but  leave  was  reserved  to 
them  by  the  learned  judge  to  move  to  set  aside  the  nonsuit  and  to 
have  a  new  trial. 

Cha7i?iell,  Serjt.,  obtained  a  rule  nisi  for  a  new  trial  on  the  first  point, 
contending  that  the  defendants'  letter  was  a  sufficient  note  within  the 
statute. 

1  5  B.  &  Aid.  557. 


SECT.    VI.]  TOWNEND   V.    DRAKEFORD.  441 

Bompas,  Serjt.,  now  shewed  cause.  The  alleged  contract  was  only 
an  order  for  goods  without  naming  any  price.  It  cannot  therefore 
amount  to  a  contract,  for  a  contract  to  be  valid  must  he  binding  on 
both  sides.  [Ckesswell,  J.  A  written  proposal  accepted  by  parol 
has  been  held  sufficient.  This  case  resembles  Elmore  v.  Kingscote,^ 
where  no  price  was  mentioned.] 

TiNDAL,  C.  J.  The  order  here  is  to  send  certain  quantities  of  porter 
and  other  malt  liquor  on  "  moderate  terms."  Why  is  not  that  suffi- 
cient ?     That  is  the  contract  between  the  parties. 

The  other  judges  concurring.  Unle  absolute. 


TOWNEND   AND   Others   v.  DRAKEFORD. 

At  Nisi  Prius,  coram  Lord  Denman,  1843. 

[Reported  in  1  Carrington  Sf  Kirwan,  20.] 

Trover  for  sealing-wax.  Pleas :  1st,  not  guilty ;  and,  2d,  that  the 
plaintiffs  were  not  possessed. 

It  was  opened  by  Groioder,  for  the  plaintiff,  that  405  chests  of  seal- 
ing-wax had  been  bought  of  the  defendant  by  the  plaintiff  through 
Messrs.  Lord  &  Co.,  who  were  brokers. 

On  the  part  of  the  plaintiff,  Mr.  Stovell,  the  partner  of  Mr.  Lord  the 
broker,  was  called.  He  proved  the  handwriting  of  the  signature  of 
Mr.  Henry  Gibson  Lord  (who  was  a  son  and  clerk  of  Mr.  Lord  the 
bi-oker)  to  the  bought  and  sold  notes  of  the  sealing-wax  in  question, 
which  were  put  in.     They  were  as  follows  :  — 

London,  22d  March,  1842. 
Bought  bv  order  of  Messrs.  W.  Townend  &  Co.  the  following  goods ;   East 
India  Company's  conditions,  prompt  25th  of  June,  brokerage  1  per  cent.,  deposit 

15  per  cent.,  payable  2d  April :  — 

Chests. 
Per  Helen  Mary  .......     146. 

Brightman 107. 

Crusader 152. 

405  chests  of  E.  I.  sealing-wax, 
165.  per  cwt.  in  bond. 

Your  most  obedient  servants,  H.  W.  Lord  &  Co. 

Per  Henry  Gibson  Lord. 

1  6  B.  &  C.  583,  8  Dowl.  &  R.  343. 


442  TOWNEND    V.   DEAKEFORD.  [CHAP.    I. 

London,  22d  jMarcli,  1842. 
Sold  by  order  and  for  account  of  Mr.  D.  Drakeford  the  following  goods ; 
East  India  Company's  conditions,  prompt  25th  June,  brokerage  ^  per  cent. ;  — 

Chests. 

Per  Helen  Mary 146. 

Brightiuan 107. 

Crusader 152. 

405  chests  of  E.  I.  sealing-wax, 
16s.  per  cwt.  in  bond. 
Your  most  obedient  servants,  H.  W.  Lord  &  Co. 

JFoUett,  S.  G.,  for  the  defendant.  I  submit  that  there  is  no  contract 
between  these  parties.  These  bought  and  sold  notes  do  not  tally. 
The  bought  note  has  "  brokerage  1  ipev  cent.,"  "  deposit  15  per  cent." 
The  sold  note  is  "  brokerage  ^  per  cent,,"  and  the  deposit  omitted 
entirely. 

One  of  the  special  jury.  The  buyer  pays  the  broker  1  per  cent.,  and 
the  seller  i  per  cent. 

Orowder.  The  contract  is  perfectly  correct.  The  price  is  the  same, 
and  so  is  the  prompt. 

Lord  Denman,  C.  J.  If  the  bought  and  sold  notes  do  not  agree, 
how  can  I  hold  it  to  be-  any  contract  ? 

Mr.  Stovell  recalled.  I  produce  the  broker's  book  in  which  is  the 
entry  of  this  sale.  The  entry  is  not  signed,  but  it  mentions  the  deposit. 
The  broker  generally  holds  the  deposit  to  protect  the  seller.  The  bro- 
ker is  responsible  for  the  fulfilment  of  the  contract.  The  defendant 
looked  to  us  to  pay  for  the  goods,  as  he  did  not  know  the  other  parties. 
The  buyer  knew  the  seller  as  being  the  importer  of  the  goods.  It  is 
the  broker's  business  to  get  the  deposit. 

Crowder  referred  to  the  case  of  Hawes  v.  Forster.^ 

Lord  Denman,  C.  J.  After  much  consideration,  and  after  consult- 
ing merchants,  we  held  that  the  bought  and  sold  notes  were  the  con- 
tract, and  not  what  is  written  by  the  broker  in  a  book  which  nobody 
sees.  If  there  is  nothing  but  the  book,  we  miist  go  by  that.  In  the 
present  case  I  am  of  opinion  that  the  discrepancy  between  these  two 
notes  makes  it  no  contract. 

Croicder.  I  submit  that  this  is  no  discrepancy.  The  dej^osit  is  as 
much  for  the  benefit  of  the  broker  as  of  the  principal,  as  it  is  for  the 
broker's  security ;  and  as  to  the  brokerage,  that  is  different  for  the 
buyer  and  the  seller. 

Lord  Denman,  C.  J.  I  would  receive  any  evidence  (subject  to 
objection)  that  you  have  as  to  the  usage  of  the  trade  with  resi^ect  to 
the  deposit. 

Orowder.  If  I  could  shew  an  admission  in  writing  of  a  contract  by 
the  defendant,  would  not  that  be  evidence  ? 

1  1  M.  &  Eob.  368. 


SECT.    VI.]  PITTS    V.    BECKETT.  443 

Lord  Denmax,  C.  J.  If  you  had  commenced  with  that  you  woidd 
have  had  v^.  prima  facie  case;  but  when  these  notes  were  put  in  it 
would  have  been  seen  that  there  was  no  contract.  If  the  bought  and 
sold  notes  differ  in  any  material  particular,  there  is  not  a  contract. 

Follett,  S.  G.  There  is  also  a  point  in  this  case  that  must  be  decided 
at  some  time;  which  is,  whether  these  notes  ai-e  sufficient  if  signed  by 
a  clerk  of  the  broker. 

LoKD  Denm.vn,  C.  J.     The  plaintiffs  must  be  nonsuited. 

N^onstdt. 


PITTS   V.   BECKETT   and   Another. 
In  THE  Exchequer,  February  10,  1845. 

[Reported  in  13  Meeson  j^  Welshy,  743.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated.  Plea, 
never  indebted.  At  the  trial  before  Cresswell,  J.,  at  the  last  Liverpool 
assizes,  it  appeared  that  the  action  was  brought  to  recover  the  sum  of 
£149  19s.  8f?.,  the  price  of  certain  wool  sold  by  the  plaintiff  to  the 
defendants  under  the  following  circumstances  :  The  plaintiff,  a  hide 
and  wool  merchant  in  Liverpool,  having  on  sale  a  quantity  of  skinned 
wool,  placed  a  sample  of  it  in  the  hands  of  Messrs.  Hughes  ife  Ronald, 
wool-brokers,  for  sale ;  and  afterwards,  on  the  morning  of  the  28th  of 
March,  1844,  met  one  of  the  defendants  (who  were  wool-staplers  at 
Manchester,  carrying  on  business  under  the  firm  of  "Beckett  Brothers") 
in  Liverpool,  and  told  him  he  had  the  wool  in  question  for  sale,  and 
requested  him  to  go  with  him  to  the  brokers'  office  to  examine  the 
sample ;  which  he  accordingly  did,  and  being  satisfied  with  the  quality 
of  it  purchased  nine  bales  at  an  agi-eed  price,  it  being  part  of  the  bar- 
gain that  the  wool  was  to  be  delivered  in  good  diy  condition.  The 
contract  was  made  by  the  defendant,  the  plaintiff  being  present  and 
the  broker  being  a  i)arty,  who  was  to  receive  brokerage  according  to 
the  practice  at  Liverpool.  In  the  afternoon  of  that  day  the  following 
sold  note  was  sent  by  Messrs.  Hughes  &  Ronald  to  the  plaintiff:  — 

Liverpool,  28  March,  l^'44. 
Mr.  G.  Pitts. 

Dear   Sir,  —  We    have    this    day   sold    on    your  account  Messrs.  Betkett 
Brothers,  — 

Fine,  about  11  cwt.,  at  lod.  lb. 
1st  short,  3  pai'ks,      ,,  Vdd. 
2d  washed,  ,, 

2d  short,  3i  )  ,  ^^ 

Waslied  wool,  3^   )     " 
Customers'  allowances,  payment  cash  in  14  days,  less  U  per  cent,  discount. 

Brokerage,  1  per  cent. 

Hughes  &  Ronald. 


444  PITTS    V.    BECKETT.  [CHAP.    I. 

A  machine  copy  of  this  note  was  made  in  the  brokers'  book,  which 
as  Avell  as  the  above  sold  note  was  produced  as  evidence  of  the  con- 
tract at  the  trial.  The  brokers  did  not  write  at  all  to  the  defendants 
or  send  them  any  note  of  the  contract.  The  wool  was  afterwards  sent 
by  Messrs.  Hughes  &  Ronald  to  the  defendants  ;  but  the  defendants 
objected  to  the  quality  of  it,  and  ultimately  refused  to  receive  it  on  the 
ground  that  it  was  not  in  good  condition.  It  was  objected  at  the 
trial  that  there  was  no  contract  in  writing  to  satisfy  the  Statute  of 
Frauds ;  that  the  sold  note  sent  to  the  plaintiif,  having  omitted  a  part 
of  the  bargain,  viz.,  that  the  wool  was  to  be  in  good  dry  condition,  was 
not  the  contract  entered  into  between  the  parties,  and  that  the  brokers 
had  no  authority  to  make  any  other.  The  learned  judge  stated  his 
impression  to  be  that  there  was  no  sufficient  contract  within  the  stat- 
ute; but  he  left  to  the  jury  the  question  whether  the  wool  was  in  good 
dry  condition;  and  they  having  found  that  it  was  not,  but  that  it  was 
in  bad  condition,  the  verdict  was  entered  for  the  defendants,  Avith 
leave  to  the  plaintiff  to  move  to  enter  a  verdict  for  him  for  £149 
19s.  8^. 

Knowles  in  Michaelmas  term  last  obtained  a  rule  accordingly. 

Martin  and  Atherton  now  shewed  cause.     There  was  in  this  case  no 
contract  in  writing  to  satisfy  the  17th  section  of  the  Statute  of  Frauds. 
The  true  contract  was  that  made  by  the  parties  themselves  at  the 
brokers'  office,  when  both  of  them  were  present,  one  of  the  terms  of 
which  was  that  the  wool  was  to  be  delivered  in  good  dry  condition  ; 
and  the  broker  had  no  authority  to  make  any  other.     Therefore  the 
sold  note,  which  was  sent  to  the  plaintiff  only,  and  not  to  the  defend- 
ants, and  which  omitted  part  of  the  terms  of  the  bargain,  was  not  the 
contract  which  the  broker  was  authorized  to  make,  and  was  conse- 
quently invalid.     Assuming  that  the  broker  would  have  authority  to 
sign  the  contract  as  the  agent  of  both  parties,  the  contract  which  he  so 
signs  must  be  the  one  agreed  upon  between  them  ;    and  if  the  broker 
omits  a  material  part  of  the  contract,  the  party  is  not  to  be  precluded 
from  shewing  what  the  real  contract  was,  in  order  to  invalidate  it.     He 
cannot  be  estopped  by  the  broker's  having  written  an  inaccurate  note. 
In  Allen  v.  Pink,^  where  the  defendant  gave  a  verbal  warranty  of  a 
horse,  which  the  plaintiff  thereupon  bought  and  paid  for,  and  the  defend- 
ant then  gave  the  following  memorandum :  "  Bought  of  G.  Pink  a  horse 
for  the  sum  of  £7  2s.  6c?.,"  it  was  held  that,  notwithstanding,  parol 
evidence  might  be  given  of  the  warranty.     The  true  construction  of 
the  statute  is  this :  it  does  not  require  a  contract  to  be  reduced  into 
writino-  at  the  precise  time  it  is  made,  but  to  prevent  frauds  and  per- 
juries it  requires  something  more  than  mere  parol  evidence  of  the  con- 
tract ;  L  e.,  of  the  real  contract  made  between  the  parties.     Hawes  v. 
Forster  ^  was  cited  when  this  rule  was  moved  for,  but  it  has  no  appli- 
1  4  M.  &  W.  140.  2  1  M.  &  Rob.  868. 


SECT.    VI.]  PITTS   V.    BECKETT.  445 

cation.     The  note  wiiich  was  here  sent  to  the  [dainliiV  cannot  be  said 
to  he  a  hou,!j,ht  and  sold  note,  or  even  a  note  of  the  bargain  at  all.     It 
is  a  mere  letter  from  the  brokers  to  the  seller.     [Parke,  B.     In  order 
to  satisfy  the  statute  it  must  be  a  writing  signed  by  the  defendant  or 
his  ao-ent.     Now  were  the  brokers  in  sending  that  note  to  the  jilaintiff" 
the  agents  of  the  defendants?]     Clearly  not.     They  were  at  all  events 
not  tiie  defendants'  agents  to  send  that  note;  for  the  wool  was  to  be  in 
good  condition,  and  they  could  not  have  been  authorized  to  make  a 
contract  omitting  a  condition  which  the  defendants  themselves  had 
sjiecially  provided  for.     In  ITawes  v.  Forster  it  was  only  held  tliat, 
where  a  contract  is  made  thi-ough  a  broker,  the  bought  and  sold  notes 
delivered  to  the  parties  constitute  the  contract,  especi:dly  when  by  the 
usage  of  trade  they  are  looked  upon  as  the  contract.     [Parke,  B.     My 
impression  in   that  case  was  that  the  memorandum  of  the  contract 
sio-ned  by  the  broker  in  the  book  w^as  the  contract  Avhich  bound  both 
parties,  because   a  broker  in  London  is  bound  by  his  bond  to  enter  the 
contract  in  his  book.     The  case  went  to  a  second  trial,  and  the  jury 
found  that  by  the  custom  of  London  the  bought  and  sold  note  consti- 
tuted the  contract.     It  has  however  never  yet  been  decided  that  a 
good  note  in  a  broker's  book  will  not  do  if  there  be  no  bought  or  sold 
note.]     The  question  is.  Has  the  broker  absolute  power  to  make  the 
contract,  and  to  make  it  complete  by  signing  it ;  or  is  the  power  of  the 
broker  merely  to  propose  a  contract  to  the  parties  which  they  may 
within  a  limited  time  assent  to  or  dissent  from?     If  it  is  only  to  ]iro- 
pose  a  contract  to  be  afterwards  made  by  the  parties,  then  the  principle 
of  the  case  of  the  bought  and  sold  notes  becomes  intelligible,     Thorn- 
ton V.  Charles,^  which  was  also  cited  on  moving  for  this  rule,  has  no 
bearing  on  the  present  case.     There  the  note  delivered  to  the  vendor 
did  not  correspond  with  that  delivered  to  the  vendee.     In  that  case 
Parke,  B.,  fully  explained  the  case  of  Hawes  v.  Forster  in  the  way  he 
has  done  to-day.     Neither  tliis  letter  nor  the  entry  in  the  book  is  suf- 
ficient to  satisfy  the  statute,  the  words  of  wdiich  require  the  contract  to 
be  signed  ])y  the  party  to  be  charged  thereby  or  his  agent  lawfully 
authorized   for   that   purpose.      This   Avas   not   signed  by   the   i)arty 
himself;  and  hoAV  is  the  broker  the  agent  of  the  defendants  lawfully 
authorized  to  sign  this  contract  ?     [Parke,  B.     A  broker  has  only  a 
special  authority,  not  a  general  one;  and  if  you  emi)loy  a  broker  to  buy 
one  kind  of  goods,  and  he  buys  another,  you  are  not  bound  by  his  act.] 
Certainly.      Assuming  that  bought   and   sold  notes  have   the    effect 
attributed  to  them,  this  is  a  mere  letter  on  one  side,  a  communication 
by  the  broker  to  his   principal,  not    a  bought   and  sold  note.     The 
broker  is  merely  an  agent  for  a  particular  transaction,  and  the  document 
to  bind  the  defendant  should  at  least  profess  to  be  made  for  him ;  but 
this  does  not  profess  to  be  made  on  behalf  of  the  defcTidants,  tlierefore 
it  is  not  even  made  in  the  character  of  agent  for  them.     The  broker 

1  9  M.  &  W.  802. 


446  PITTS    V.    BECKETT.  [CHAP.    I. 

had  only  authority  to  record  the  real  contract  entered  into  between  the 
parties  themselves. 

Secondly,  the  machine  copy  taken  from  the  letter  and  entered  in 
the  book  will  not  satisfy  the  statute.  It  is  not  a  signing  within  the 
meaning  of  the  act.  If  the  book  is  to  be  relied  on,  it  must  be  shewn 
to  be  a  document  attested  by  the  handwriting  of  the  party  or  his 
agent  in  the  ordinary  sense  of  the  term.  The  statute  requires  a 
document  signed  by  the  defendant,  or  it  must  profess  to  be  written 
on  his  behalf  by  his  authorized  agent ;  but  this  does  not  profess  to  be 
written  on  behalf  of  the  purchasers.  [Parke,  B.  The  only  evidence 
in  the  case  is  that  the  seller  has  received  a  note  from  his  agent  that 
the  contract  is  made,  and  without  the  addition  that  the  wool  is  to  be 
in  good  condition ;  but  there  is  no  corresponding  note  delivered  to 
the  defendants  so  as  to  raise  an  argument  that  they  have  approved 
of  the  contract  in  its  altered  shape.]  What  is  said  by  Lord  Abinger, 
C.  B.,  in  Allen  v.  Pink  ^  is  applicable  to  this :  "  It  is  quite  true  that 
if  there  has  been  a  parol  agreement  which  is  afterwards  reduced  by 
the  parties  into  writing,  that  writing  alone  must  be  looked  to  to 
ascertain  the  terms  of  the  contract ;  but  that  principle  does  not  apply 
here :  there  was  no  evidence  of  any  agreement  that  the  whole  con- 
tract should  be  reduced  into  writing  by  the  defendant ;  the  contract 
is  first  concluded  by  parol,  and  afterwards  the  paper  is  draAvn  up, 
which  ajjpears  to  have  been  meant  as  a  memorandum  of  the  trans- 
action or  an  informal  receipt  for  the  money,  not  as  containing  the 
terms  of  the  contract  itself"  That  precisely  applies  to  this  case. 
Again,  the  statute  requires  a  memorandum  in  Avriting  of  the  same 
bargain ;  but  this  was  not  at  all  a  memorandum  of  the  same  bar- 
gain, because  the  stipulation  'as  to  the  wool  being  in  good  condition 
was  entirely  omitted.  But,  even  supposing  that  it  was,  there  was  no 
evidence  of  any  authority  to  the  brokers  to  make  any  writing  at  all, 
nor  of  any  mercantile  usage  warranting  the  broker  to  reduce  the  con- 
tract into  writing.  [Pakke,  B.  If  the  broker  was  the  general  agent 
the  question  would  arise  whether  that  memorandum  was  signed  by 
him  as  general  agent  to  the  plaintiff,  or  as  general  agent  to  the 
defendants.  But  you  say,  if  the  broker  was  the  agent  of  the  defend- 
ants, he  had  no  authority  to  sign  this  contract.  Alderson,  B. 
There  are  two  questions :  First,  had  the  broker  authority  to  sign  the 
contract  so  as  to  take  the  case  out  of  the  Statute  of  Frauds'? 
Secondly,  if  he  had,  is  a  copy  taken  by  a  machine  and  put  into  a 
letter-book  sutficient  ?  If  it  be  put  as  an  entry  in  the  book,  it  ought 
at  least  to  be  proved  to  be  a  machine  copy  made  by  the  person  him- 
self; but  this  might  have  been  done  by  his  clerk.  Perhaps  he  might 
make  his  own  entry  in  the  book  by  turning  the  machine  himself. 
Parke,  B.     This  is  in  truth  nothing  but  a  machine  copy  of  a  letter.] 

1  4  M.  &  W.  144. 


SECT.    VI.]  PITTS    V.  BF.CKETT,  447 

Knowles  and  Cromjyton-,  in  support  of  the   rule.     Tlie   entry  in  the 
book  was  a  good  note  in   writing  to  satisfy  the  statute.     If  a  man 
stamps  his  name    or  takes  an  im])ression  from  another  copy,  it  is  a 
good    writing   and    signing    Avitliin    the   statute.      [Parke,    B.     The 
question  is,  Had  he  any  authority  from  the  defendants  to  sign  it  ?] 
Clearly  he  had.     The  case  of  Allen  u.  Pink  has  nothing  to  flo'with 
the  present.     All  that  that  case  decided  was  that,  where  a  party  gave 
a  receipt  for  a  sum  of  money  which  he  had  received,  he  niiglit  shew 
the  terms  of  the  contract  indejicndently  of  the  receipt.     It  was  not 
necessary  to  deliver  a  note  to  both  the  parties :  it  is  sufficient  if  one 
note  signed  by  an  agent  of  both  parties  be  delivered.     The  statute  is 
satisfied  if  one  be  signed ;  and  the  note  here  signed  was  a  good  note, 
signed  by  the  broker  as  the  agent  of  the  defendants.     That  note  is 
evidence  of  the  bargain  entered  into  by  the  parties,  and  no  other 
evidence  can  be  received.     It  was  proved  by  Mr.  Hughes  the  broker 
at  the  trial  that  at  four  p.  m.  the  parties  came  to  his  office,  and  the 
note  was  sent  off  the  same  evening.     The  making  the  bargain  and 
the  writing  the  note  niust  have  been  nearly  contemporaneous  acts. 
He  said,    "  We  made  the  contract."      [Aldersox,  B.     According  to 
the  judge's  note  he  said:  "I  made  a  contract  between  them.     I  made 
a  note  to  the  seller,  not  to  the  buyer.     I  sent  it  to  l^itts."     Parke,  B. 
Suppose  that  a  note   sent    to    one  party  is  sufficient    to  satisfy  the 
statute,    the   broker    must   sign   it  as   the   agent    authorized   by  the 
defendants.     Now  had  he  authority  from  the  defendants  to  send  this 
note?]     If  the   courts   permit   inquiries  in   every  case   whether   the 
broker  had  power  to  make  the  baigain,  they  will  introduce  the  mis- 
chiefs intended  to  be  guarded  against  by  the  statute :  the  note  is  not 
to  be  varied  by  parol.     [Alderson,  B.     That  presumes  an  authority 
to  make  it.      Parke,  B.     The  broker  has  a  limited  special  authority 
only,  and  he  is  not  the  agent  of  the  defendants  unless  he  complies 
with  the  terms  of  that  limited  special  authority.     It  is  perfectly  well 
settled  that  a  broker  who  has  a  special  authority  must  comply  with 
the  terms  of  it.     If  he  is   employed  to  buy  one  article  at  a  certain 
price,  and  he  buys  another,  or  at   a  different  price,  the  party  is  not 
bound  by  his  act.     This  rule  was  granted  without  the  knowledge  that 
the  broker  had  only  a  special  and  limited  authority  to  reduce  the  con- 
tract into  writincv.     It  is  clear  that  he  had  no  authoritv  to  make  this 
contract,  for  he  proved  that  the  contract  between  the    i)arties  was 
that  the   wool   was  to   be    delivered  in   good   condition.      The   rule 
was  granted  on    the  supposition  that  he  had    authority  to  sign  the 
note  ;  but  the  sold  note  sent  to  the  plaintiff  did  not  bind  the  defend- 
ants.     It  is   not  necessary  to  enter  into  the  question  whether  the 
machine  copy  was  sufficient,  as  the  note  itself  was  not  signed  by  the 
defendants'  agent.     I  am  strongly  inclined  to  think  it  is  not,  but  it  is 
not  necessary  to  decide  it.     Alderson,  B.     The  broker  is  authorized 


448  PITTS    V.    BECKETT.  [CHAP.    I. 

to  sign  the  contract  the  parties  entered  into,  not  another  contract. 
Parke,  B.  If  there  are  any  special  exceptions  not  complied  M'ith, 
the  broker  has  no  authority  to  record  the  contract.  You  fail,  because 
it  is  not  shewn  that  the  broker  was  the  agent  of  the  defendants  to 
sign  that  contract.  I  very  much  doubt  if  his  signature  to  the  note 
was  in  the  character  of  agent  for  the  defendants  at  all.]  It  is  sub- 
mitted that  it  is  within  the  scope  of  the  broker's  authority  to  record 
the  contract,  and  having  recorded  it  that  the  defendants  are  bound 
thereby.  It  is  like  the  case-  of  an  auctioneer,  though  an  auctioneer 
has  not  so  large  an  authority  as  a  broker.  In  Shelton  v.  Livius,^ 
which  was  the  case  of  a  sale  by  an  auctioneer,  Bayley,  B.,  states  the 
principle  to  be  that  a  written  instrument  signed  with  the  purchaser's 
name  is  the  instrument  at  which  you  are  to  look  to  see  what  is  the 
contract  between  the  parties.  Here  the  broker  was  authorized  to 
record  the  contract;  and  having  done  so,  that  only  .can  be  looked  at. 
He  says  he  made  the  bargain  as  agent  for  both  parties.  This  is  a  sold 
note  in  the  ordinary  form,  and  one  sold  note  is  sufficient.  Humphries 
V.  Carvalho.'-  [Aldeeson,  B.  If  the  party  is  authorized,  one  note 
may  be  enough ;  but  the  question  is  as  to  the  authority.  He  is  not  the 
agent  of  both  parties  to  make  this  contract:  that  is  the  difficulty 
which  meets  you  everywhere.  Two  parties  make  a  contract ;  and  a 
third  party,  authorized  by  one  of  them,  reduces  into  writing  a  new 
and  diffijrent  contract.  Rolfe,  B.  Two  parties  meet  and  enter  into 
a  contract,  and  they  authorize  another  to  draw  it  up,  and  he  behind 
the  back  of  one  of  them  draws  up  a  different  contract,  and  never 
communicates  to  him  that  he  has  done  so.     Surely  that  cannot  bind 

him.] 

Alderson,  B.^  This  is  about  the  plainest  case  that  ever  was.  Two 
parties  agree  between  themselves  to  make  a  contract,  and  they  employ 
a  broker,  who  is  to  draw  it  up.  He  puts  something  else  down  than 
that  which  they  have  agreed  upon,  and  does  not  communicate  it  to 
one  of  the  parties  :  does  that  bind  the  party  to  whom  it  was  not 
communicated?     I  clearly  think  not. 

Rolfe,  B.,  concurred.  ^ule  discharged. 

1  2  C.  &  J.  416.  2  16  East,  45. 

3  Parke,  B.,  had  left  the  court. 


/ 


SECT.    VI.]  ARCHER   V.    BATNES.  449 


ARCHER  V.  BAYNES. 

In  the  Exchequer,  July  8,  1850. 

[Reported  in  6  Exchequer  Eeports,  625.] 

Assumpsit  for  goods  sold  and  delivered.     Plea,  non  assumpsit. 

At  the  trial  before  Alderson,  B.,  at  the  last  Liverpool  spring  assizes, 
it  appeared  that  in  September,  1849,  the  defendant,  who  was  a  flour 
dealer  at  Lancaster,  verbally  agreed  to  purchase  by  sample  of  the  i)]ain- 
tiff,  a  corn  merchant  at  Liverpool,  thirty-three  barrels  of  floui-  at  "lis. 
Qd.  per  barrel,  to  be  sent  to  the  defendant  at  Lancaster  by  the  London 
and  North  Western  Railway.  The  flour  was  accordingly  sent,  and  the 
plaintiflT  afterwards  received  the  following  letter  fi-om  the  defendant :  — 

Lancaster,  October  2d,  1849. 

Dear  Sir,  —  This  is  to  say  that  I  have  received  thirty-three  R.  H.  barrels, 
per  London  and  North  Western  Railway,  but  from  whom  I  cannot  tell,  and  have 
enclosed  sample,  say  No.  1  is  of  the  barrels  received,  and  No.  2  is  of  the  sample 
I  bought  the  barrels  by,  by  which  you  Avill  see  the  barrels  is  not  near  as  fine  as 
the  sample  ;  beside  they  are  very  hard  in  the  barrels.  I  hope  you  have  not  sent 
them  for  what  I  bought,  as  they  are  not  the  barrels  I  bought,  nor  shall  I  have 
them.  Will  you  please  write  me  per  first  mail  to-morrow  about  them,  and  say 
if  you  have  sent  them.  Yours  truly, 

E.  Baynes. 

The  barrels  I  saw  was  not  hard,  same  as  what  I  have  received. 

To  that  the  plaintiff  replied,  enclosing  an  invoice,  as  follows  :  — 

Liverpool,  October  3d,  1849. 

Sir,  —  Annexed  you  have  invoice  of  the  flour  sold  you  last  Friday,  and  which 
was  forwarded  per  railway  to  your  address  same  day  agieeably  to  your  instruc- 
tions. In  reply  to  your  letter  of  this  or  rather  last  post  I  am,  I  must  say,  very 
much  astonished  at  your  finding  any  fault  with  the  flour.  It  was  sold  to  you, 
subject  to  your  examining  the  bulk ;  and  it  was  not  until  after  you  had  examined 
it  and  satisfied  yourself  both  of  quality  and  condition  that  you  confirmed  the 
purchase.  The  flour  was  in  Messrs.  Greggs'  warehouse  when  you  saw  it,  and 
under  their  care ;  and  their  warehouseman  says  you  saw  as  many  barrels  as  you 
wished  to  look  at,  and  that  what  was  forwarded  to  you  was  the  same  you  saw. 
Under  these  circumstances  you  cannot  therefore  object  to  fulfil  your  agreement ; 
but  in  order  that  no  unpleasantness  may  arise  out  of  the  transaction  I  am  satis- 
fied to  cancel  the  sale,  provided  you  will  place  the  flour  in  the  same  warehouse 
here  it  was  sent  from,  free  of  any  expense  to  me ;  this  without  prejudice  to  my 
claim  or  any  part  thereof,  and  subject  to  your  reply  in  course. 

I  am.  Sir,  yours  respectfully,  William  Archer. 

VOL.  I.  29 


450  ARCHER   V.    BAYNES.  [CHAP.    I. 

LivEEPOOL,  28th  September,  1849. 
Mr.  Edward  Baynes 

Bought  of  William  Archer,  payment  cash,  less  three  months'  interest, 

Thirty-three  barrels  Ohio  flour,  at  21s.  6d.  per  196  lbs.  £35  9s.  Qd. 

Less  47  lbs.  short  weight 5     2 

£35  4s.  Ad. 

The  defendant  wrote  in  answer  as  follows :  — 

Lancaster,  October  10th,  1849. 

Dear  Sir,  —  This  is  to  say  that  I  duly  received  yours  in  reply ;  beg  to  say 
that  the  barrels  I  have  received  is  not  the  same  as  I  saw.  I  took  a  sample  with 
me  from  the  sample  I  have,  and  the  barrels  I  saw  was  quite  as  fine  as  I  compared 
them,  nor  was  they  lumpy.  Now  the  barrels  I  have  received  is  all  very  lumpy, 
and  none  of  them  so  fine  as  the  sample.  Any  person  you  may  appoint  is  at  lib- 
erty to  come  and  examine  them ;  if  you  will  take  them  back  and  pay  carriage,  I 
will  with  pleasure  send  them.  There  must  be  some  mistake  about  them.  I  can- 
not tell  whatever  to  do  with  them.  Yours  truly, 

E.  Baynes. 

It  was  objected  on  behalf  of  the  defendant  that  there  was  no  suffi- 
cient note  or  memorandum  in  wi'iting  to  satisfy  the  Statute  of  Frauds  ; 
and  the  learned  judge  being  of  that  opinion  dii-ected  a  nonsuit,  reserv- 
ing leave  for  the  plaintiff  to  move  to  enter  a  verdict  for  the  amount 
claimed.     A  rule  7iisi  having  been  obtained  accordingly, 

Willes  and  Sugh  Hill  shewed  cause  (June  21st).  The  letters  and 
invoice  do  not  constitute  a  sufficient  note  or  memorandum  in  writing 
of  the  contract  to  satisfy  the  17th  section  of  the  29  Car.  2,  c.  3.  Eger- 
ton  V.  Mathews^  and  "Wain  v.  Warlters^  establish  the  distinction 
between  the  4th  and  17th  sections  of  that  statute.  By  the  former  the 
whole  contract  must  be  in  writing,  including  the  consideration  ;  but  by 
the  latter  it  is  sufficient  if  all  the  terras  by  which  the  vendee  is  bound 
are  stated  in  wiiting.  Now  here,  though  the  plaintifiT's  letter  of  the 
3d  of  October  coupled  with  the  invoice  does  contain  a  statement  of 
the  terms  of  a  contract,  yet  that  is  not  adoi:)ted  by  the  defendant.  A 
disclaimer  of  a  contract  has  never  been  held  to  be  a  memorandum 
within  that  statute.  Cooper  v.  Smith.^  This  case  is  governed  by  Rich- 
ards V.  Porter,^  where  the  plaintiff  sent  to  the  defendant  an  invoice  of 
hops,  and  dehvered  the  invoice  to  a  earner  to  be  conveyed  to  the 
defendant.  In  the  invoice  the  plaintiff  was  desci'ibed  as  the  seller,  and 
the  defendant  as  the  purchaser  of  the  hops.  The  defendant  afterwards 
wrote  to  the  plaintiff  as  follows  :  "  The  hops  which  I  bought  of  Mr. 
Richards  (the  plaintiff)  on  the  23d  of  last  month  are  not  yet  arrived, 
nor  have  I  heard  of  them.  I  received  the  invoice.  The  last  was  much 
longer  than  they  ought  to  have  been  on  the  road ;  however  if  they  do 
not  arrive  in  a  few  days,  I  must  get  some  elsewhere,  and  consequently 

1  6  East,  307.  2  6  East,  10. 

3  15  East,  103.  4  6  B.  &  C.  437. 


SECT.    VI.]  ARCHER   V.   BAYNES.  451 

cannot  accept  them  ;"  and  it  was  held  that  the  invoice  and  letter  taken 
toaretlier  did  not  constitute  a  suflicicnt  note  in  writins  within  the  stat- 
ute.  Where  indeed  the  vendee  by  his  letter  in  answer  recognizes  and 
adopts  the  terms  of  a  contract  specified  in  the  vendor's  letter,  that  no 
doubt  is  a  sufficient  memorandum  to  satisfy  the  statute  (.Jackson  v. 
Lowe/  Smith  v.  Suiman ')  ;  but  that  is  not  the  case  here. 

Watson  and  T.  -Tones,  in  support  of  the  rule.  It  is  necessary  to  keep 
in  view  the  distinction  between  the  contract  itself  and  the  perfonnance 
of  it.  The  defendant  by  his  letter  of  the  10th  of  October  admits  that 
there  was  a  contract,  but  complains  that  the  flour  sent  was  not  accord- 
ing to  sample.  The  statute  does  not  absolutely  exclude  parol  evi- 
dence ;  and  it  may  be  introduced  to  shew  that  the  contract  between 
the  parties  was  that  contained  in  the  invoice  and  letter  of  the  .3d  of 
October.  Johnson  v.  Dodgson.^  The  true  principle  is  stated  by  Lord 
Denman,  C.  J.,  in  Dobell  v.  Hutchinson,*  viz.,  "  that  where  a  contract 
in  writing  or  note  exists  which  binds  one  party,  any  subsequent  note 
in  writing  signed  by  the  other  is  sufficient  to  bind  him,  provided  it 
either  contains  in  itself  the  terms  of  the  contract  or  refers  to  any  writ- 
ing which  contains  them."  Saunderson  v.  Jackson  ^  shews  that  these 
letters  connected  together  constitute  a  sufficient  note  in  writing. 
Jackson  v.  Lowe "  is  not  distinguishable  from  the  present  case.  The 
parties  do  not  differ  as  to  the  terms  of  the  contract,  but  only  as  to 
whether  the  flour  sent  is  that  which  has  been  sold.  Upon  every  prin- 
ciple of  construction,  that  imjiorts  the  fact  of  a  sale. 

Cur.  adv.  viilt. 

Alderson,  B.,  now  said :  There  was  a  case  of  Archer  v.  Baynes, 
tried  before  me  at  the  last  Liverpool  assizes,  in  which  a  motion  Avas 
made  to  enter  a  verdict  for  the  plaintifJ'  for  £35  45.  4f7.,  the  admitted 
amount  of  the  damages.  At  the  trial  the  plaintiff  was  nonsuited  on 
the  ground  that  there  was  no  sufficient  note  or  memorandum  in  writing 
of  any  contract  to  take  the  case  out  of  the  Statute  of  Frauds ;  and 
that  question  having  been  reserved  was  argued  before  the  three  judges 
who  are  now  jjresent  in  court;'  and  we  are  of  o})inion  that  the  rule 
must  be  discharged.  No  doubt  if  the  letter  of  the  plaintiff  of  the  3d 
of  October,  and  of  the  defendant  in  answer,  taken  together  contained 
a  sufficient  contract,  namely,  one  that  would  express  all  its  terms,  they 
would  constitute  a  memorandum  in  writing  within. the  statute.  We 
have  no  difficulty  therefore  in  coming  to  the  conclusion  that  these  let- 
ters may  be  looked  at  for  the  purpose  of  seeing  whether  or  not  they 
contain  a  sufiicient  contract  to  take  the  case  out  of  the  statute ;  but 
looking  at  them  we  do  not  think  they  do.     They  do  not  ex])rcss  all 

1  1  Bing.  9.  2  9  B.  &  C.  561.  »  2  M.  &  W.  658. 

4  3  A.  &  E.  371.  5  2  B.  &  P.  238.  6  i  Bing.  9. 

T  Alderson,  B.,  Kolfe,  B.,  and  Piatt,  B. 


452  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.    I. 

the  terms  of  the  contract ;  and  the  case  is  in  truth  governed  by  Rich- 
ards V.  Porter,  which  was  cited  in  the  course  of  the  argument,  and  in 
which  Lord  Tenterden  gave  a  similar  decision  as  to  a  document  of  a 
similar  nature  which  was  then  before  him.  There  is  a  distinct  refusal 
on  the  part  of  the  defendant  to  accept  the  flour  which  he  had  bought 
of  the  plaintiff.  It  is  clear  from  the  letters  that  he  had  bought  the 
flour  from  the  plaintiff  upon  some  contract  or  other ;  but  whether  he 
bought  it  on  a  contract  to  take  the  particular  barrels  of  flour  which  he 
had  seen  at  the  warehouse,  or  whether  he  had  bought  them  on  a  par- 
ticular sample,  which  had  been  delivered  to  him,  on  the  condition  that 
they  should  agree  with  that  sample,  does  not  appear ;  and  that  which 
is  in  truth  the  dis2:)ute  between  the  parties  is  not  settled  by  the  con- 
tract in  writing ;  and  thei'efore  the  rule  must  be  discharged, 

Hule  discharged. 


SIEVEWRIGHT  v.  ARCHIBALD. 

In  the  Queen's  Bench,  June  17,  1851. 

[Reported  in  17  Queen's  Bench  Reports,  103.] 

Assumpsit  for  not  accepting  iron.  Plea  (among  others),  non  assump- 
sit.    Issue  thereon. 

The  cause  was  tried  before  Lord  Campbell,  C.  J.,  at  the  sittings  in 
London  after  Michaelmas  term,  1850.  The  pleadings,  the  manner  in 
which  they  were  amended,  and  the  points  reserved  are  fully  stated  in 
the  judgment  of  Lord  Campbell,  C.  J. 

Watson  in  the  ensuing  term  obtained  a  rule  nisi  to  enter  a  verdict 
for  the  defendant  pursuant  to  the  leave  reserved. 

£omll  in  Easter  term  ^  shewed  cause ;  and  Watson  and  Saickins 
were  heard  in  support  of  the  rule.  The  arguments  used  and  cases 
cited  will  appear  sufiiciently  by  the  judgments.  Cur.  adv.  vult. 

In  this  term  (June  17th),  the  court  being  divided  in  opinion,  the 
learned  judges  deliverq^l  separate  judgments. 

Erle,  J.  In  this  case  it  appeared  by  the  evidence  of  the  broker 
at  the  trial  that  he  agreed  with  the  defendant  to  sell  to  him  500  tons 
of  Dunlop's  iron ;  that  Dunlop's  iron  was  Scotch ;  that  he  delivered 
to  the  defendant  a  bought  note  in  which  the  thing  bought  was  named 
Scotch  iron,  and  to  the  plaintiff  a  sold  note  in  which  the  thing  sold  was 
named  Dunlop's  iron :  and  it  further  appeared  that  the  defendant  had 

1  April  16.    Before  Lord  Campbell,  C.  J.,  Patteson,  Wightman,  and  Erie,  JJ. 


SECT.    VI.]  SIEVEWRIGHT    V.    ARCHIBALD.  453 

repeatedly  adraittecl  the  existence  of  some  contract  by  requesting  the 
plaintiflf  to  release  him  therefrom  upon  terms. 

The  plaintiff  had  declared  for  not  accepting  Dnnlop's  iron  ;  but  on 
the  defendant  jtroducing  the  bought  note  so  that  it  was  in  evidence, 
and  objecting  that  there  was  no  contract  because  the  bought  and  sold 
notes  varied,  the  plaintiff  then  contended  that  the  defendant  had 
ratified  the  contract  expressed  in  the  bought  note  sent  to  the  defend- 
ant. The  declaration  was  then  amended  to  agree  with  the  bought 
note ;  and  the  jury  found  their  verdict  for  the  plaintiff,  and  that  the 
defendant  had  ratified  the  contract  alleged  in  the  amended  declara- 
tion. I  take  this  to  be  the  substance  of  the  evidence,  as  stated  more 
fully  in  the  judgment  of  the  Lord  Chief  Justice.  The  defendant 
obtained  a  rule  to  set  aside  this  verdict  for  the  plaintiff,  and  enter  it 
for  the  defendant,  on  two  grounds  :  First,  he  contended  that,  in  cases 
where  a  contract  has  been  made  by  a  broker  and  bought  and  sold 
notes  have  been  delivered,  they  alone  constitute  the  contract ;  that  all 
other  evidence  of  the  contract  is  excluded ;  and  that  if  they  vary  a 
contract  is  disproved;  and  that  the  notes  now  in  question  did  vary: 
and,  secondly,  he  contended  that,  if  evidence  was  in  such  cases  admissi- 
ble, there  was  no  evidence  here  to  go  to  the  jury  to  ]>rove  the  ratification 
of  the  contract  alleged  in  the  amended  declaration.  But  after  consid- 
ering the  argument,  it  appears  to  me  that  he  has  failed  to  establish 
either  ground. 

With  respect  to  the  first  ground,  I  would  observe  that  the  question 
of  the  effect  either  of  an  entry  in  a  broker's  book  signed  by  him,  or  of 
the  acceptance  of  bought  and  sold  notes  which  agree,  is  not  touched  by 
the  present  case.  I  assume  that  sufficient  parol  evidence  of  a  contract 
in  the  terms  of  the  bought  note  delivered  to  the  defendant  has  been 
tendered,  and  that  the  point  is.  Whether  such  evidence  is  inadmissible 
because  a  sold  note  was  delivered  to  the  plaintiff?  in  other  words, 
Whether  bought  and  sold  notes,  without  other  evidence  of  intention, 
are  by  presum]ition  of  law  a  contract  in  writing?  I  think  they  are 
not.  If  bought  and  sold  notes  which  agree  are  delivered  and  accepted 
without  objection,  such  acceptance  without  objection  is  evidence  for 
the  jury  of  mutual  assent  to  the  terms  of  the  notes ;  but  the  assent  is 
to  be  inferred  by  the  jury  from  their  acceptance  of  the  notes  without 
objection,  not  from  the  signature  to  the  writing,  which  would  be  the 
proof  if  they  constituted  a  contract  in  writing.^  This  seems  to  me  to 
be  the  effect  of  the  evidence  of  mercantile  usage  relating  to  bought 
and  sold  notes  given  in  Hawes  v.  Forster^  raentiont'(l  below;  mid  tliis 
is  the  ground  on  which  the  verdict  in  that  case  is  to  be  sustained, 
according  to  the  opinion  of  Parke,  B.,  expressed  in  Thornton  v. 
Charles.-  The  form  of  the  instruments  is  strong  to  shew  that  they  are 
not  intended  to  constitute  a  contract  in  writing,  but  to  give  informa- 
1  1  Moo.  &  Rob.  368,  372.  2  9  M.  &  W.  802. 


454  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.    I. 

tion  from  the  agent  to  the  principal  of  that  which  has  been  done  on  his 
behalf:  the  buyer  is  informed  of  his  purchase,  the  seller  of  his  sale ; 
and  experience  shews  that  they  are  varied  as  mercantile  convenience 
may  dictate.  Both  may  be  sent,  or  one,  or  neither ;  they  may  both  be 
signed  by  the  broker,  or  one  by  him  and  the  other  by  the  party  ;  the 
names  of  both  contractors  may  be  mentioned,  or  one  may  be  named 
and  the  other  described  ;  they  may  be  sent  at  the  time  of  the  contract 
or  after,  or  one  at  an  interval  after  the  other.  No  person  acquainted 
with  legal  consequences  would  intend  to  make  a  written  contract 
depend  on  separate  instruments,  sent  at  separate  times  in  various  forms, 
neither  party  having  seen  both  instruments :  such  a  process  is  con- 
trary to  the  nature  of  contracting,  of  which  the  essence  is  interchange 
of  consent  at  a  certain  time.  The  governing  principle  in  respect  of 
contracts  is  to  give  effect  to  the  intention  of  the  parties ;  and  where 
the  intention  to  contract  is  clear,  it  seems  contrary  to  that  principle  to 
defeat  it  because  bought  and  sold  notes  have  been  delivered  which  dis- 
agree. They  are  then  held  to  constitute  the  contract  only  for  the  pur- 
pose of  annulling  it. 

It  seems  to  me  therefore  that,  upon  principle,  the  mere  delivery  of 
bought  and  sold  notes  does  not  prove  an  intention  to  contract  in 
writing,  and  does  not  exclude  other  evidence  of  the  contract,  in  case 
they  disagree.  Before  examining  the  authorities  on  which  this  propo- 
sition is  supposed  to  be  founded,  I  would  draw  attention  to  the  dis- 
tinction between  evidence  of  a  contract  and  evidence  of  a  compliance 
with  the  Statute  of  Frauds.  The  question  of  compliance  with  the 
statute  does  not  arise  until  the  contract  is  in  proof  In  case  of  a  writ- 
ten contract  the  statute  has  no  application.  In  case  of  other  con- 
tracts the  compliance  may  be  proved  by  part  payment,  or  part  delivery, 
or  memorandum  in  writino:  of  the  bargain.  Where  a  memorandum  in 
writing  is  to  be  proved  as  a  compliance  with  the  statute,  it  differs  from 
a  contract  in  writing  in  that  it  may  be  made  at  any  time  after  the 
contract,  if  before  the  action  commenced ;  and  any  number  of  memo- 
randa 7nay  be  made,  all  being  equally  originals ;  and  it  is  sufficient  if 
signed  by  one  of  the  parties  only  or  his  agent,  and  if  the  terms  of  the 
bargain  can  be  collected  from  it,  although  it  be  not  expressed  in  the 
usual  form  of  an  agreement.     Egerton  v.  Mathews.^ 

I  now  advert  to  the  authorities  usually  cited  on  this  point.  In 
Thornton  v.  Kempster  ^  the  bought  and  sold  notes  could  not  be  recon- 
ciled, and  no  other  evidence  appears  to  have  been  offered  of  the  con- 
tract, and  the  plaintiff  did  not  adopt  the  note  delivered  to  the  defendant; 
and  he  was  nonsuited.  As  the  case  stands  in  the  reports,  there  was  no 
evidence  of  mutual  assent  to  the  contract  alleged  by  the  plaintiff.  The 
point  was  not  raised  whether  other  evidence  of  the  contract  was  admis- 
sible. In  Gumming  v.  Koebuck  ^  the  statement  is  that  the  bought  and 
1  6  East,  307.  2  5  Taunt.  786.  3  Holt,  N.  P.  C.  172. 


SECT.    VI.]  SIEVEWRIGHT   V.    ARCHIBALD.  455 

sold  notes  varied ;  and  Gibbs,  C.  J.,  is  reported  to  have  ruled  that,  if 
the  broker  delivers  a  different  note  of  the  contract  to  each  party  con- 
tracting, there  is  no  valid  contract ;  and  he  nonsuited  the  plaintiff  In 
this  case  also  it  does  not  appear  that  any  otlier  evidence  of  the  con- 
tract besides  the  notes  was  offered ;  and  if  not,  this  ruling  is  in  the 
same  way  irrelevant  to  the  present  question.  The  learned  judge  is 
reported  to  have  added  that  a  case  which  states  the  entry  in  the 
broker's  book  to  be  the  original  contract  has  been  since  contradicted. 
The  facts  in  relation  to  which  this  opinion  was  expressed  are  not  given: 
if  it  was  intended  to  be  unqualified,  there  is  authority  and  principle 
against  it.  In  Heyman  v.  Neale  ^  an  entry  was  made  in  the  broker's 
book,  and  bought  and  sold  notes  were  delivered ;  and  the  defendant 
returned  the  bought  note,  and  contended  that  there  was  no  contract 
till  the  note  delivered  was  assented  to.  Lord  Ellenborough  held  that 
neither  party  could  recede  fi-om  a  contract  after  it  was  entered  in  the 
book,  that  the  bought  and  sold  note  is  not  sent  on  approbation,  nor 
does  it  constitute  the  contract :  it  is  only  a  copy  of  the  entry,  which 
would  be  valid  although  no  bought  or  sold  note  was  sent.  In  Grant  v. 
Fletcher  ^  the  plaintift'  j^roved  a  verbal  contract  of  purchase  by  the 
broker,  and  to  comply  with  the  Statute  gave  in  evidence  an  unsigned 
entry  in  the  broker's  book  and  imperfect  bought  and  sold  notes;  and 
a  nonsuit  was  supported,  because  these  imperfect  instruments  did  not 
constitute  a  sufficient  memorandum  in  writing  of  the  bargain.  In  the 
judgment  it  is  stated  that  the  entry  in  the  broker's  book  is  the  original, 
and  the  bought  and  sold  notes  ought  to  be  copies  of  it,  and  that  a  valid 
contract  may  probably  be  made  by  perfect  notes  signed  by  the  broker 
and  delivered  to  the  parties,  although  the  book  be  not  signed :  the 
court  therefore  was  far  fi'om  holding  the  notes,  if  delivered,  to  be  the 
sole  evidence  of  the  contract.  In  Goom  v.  Aflalo  ^  the  broker  had  made 
an  unsigned  entry  in  his  book,  and  had  delivered  to  the  parties  signed 
bought  and  sold  notes:  it  was  objected  that  the  entry  in  the  book  was 
the  original,  and  tliat  therefore  the  notes  were  inadmissible ;  and  this 
objection  was  only  overruled  after  argument  on  a  special  case.  The 
court  therefore  was  still  far  fi'om  recognizing  the  doctrine  that  bought 
and  sold  notes  are  the  contract  itself  In  Thornton  v.  Meux,'*  Abbott, 
C.  J.,  states  that  he  used  to  think  the  broker's  book  the  projier  evidence 
of  the  contract ;  but  he  afterwards  changed  his  opinion,  and  held,  con- 
formably with  the  rest  of  the  court,  that  the  copies  delivered  to  the 
parties  were  the  evidence  of  the  contract  they  had  entered  into.  It  is 
obvious  that  this  ruling  does  not  follow  from  the  judgments  that  had 
lately  jn-eceded  it :  it  avows  a  late  change  of  opinion  ;  it  was  not  acted 
on  in  tlie  case  so  as  to  nonsuit  the  plaintiffs  thereon,  but  the  trial  pro- 
ceeded, and  the  plaintiffs  were  nonsuited  on  anotlier  ground ;  and  there- 

1  2  Campb.  337.  2  5  B.  &  C.  436. 

3  0  B.  &  C.  117.  *  M.  &  M.  43. 


456  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.   I. 

fore  there  was  no  opportunity  to  review  the  ruling  in  banc;  and  both 
the  last  cases  are  expressed  as  if  a  contract  in  writing  was  necessary 
for  a  contract  of  sale  of  chattels.  In  Hawes  v.  Forster  ^  the  contract  as 
stated  in  the  bought  and  sold  notes  varied  from  the  contract  as  stated 
in  the  broker's  book.  On  the  first  trial  the  plaintifls'  note  only  was  in 
evidence,  and  the  broker's  book  was  excluded.  On  the  second  trial  the 
plaintiffs  relied  on  both  the  notes,  with  the  evidence  of  some  merchants 
stating  that  they  always  looked  to  the  bought  and  sold  notes  as  the 
contract,  and  that  if  the  note  was  not  consonant  to  their  direction  to 
the  broker  they  returned  it ;  the  defendants  relied  on  the  entry  in  the 
broker's  book :  the  jury  were  directed  to  find  for  the  plaintiffs  if  the 
bought  and  sold  notes  in  their  opinion  constituted  the  contract ;  and 
they  found  for  the  plaintiffs.  This  case  ought  not  to  be  taken  to  estab- 
lish the  general  proposition  of  law,  that  the  notes  in  all  cases  constitute 
the  contract.  The  vei'dict  may  well  be  supported  u]ion  the  facts  of  the 
case,  as  the  acceptance  of  the  notes  without  objection  was  evidence  for 
the  jury  of  mutual  assent  to  a  contract  upon  the  terms  expressed  in 
those  writings,  which  agreed.  This  view  is  explained  by  Parke,  B.,  in 
Thornton  v.  Charles,^  where  he  says,  speaking  of  Hawes  v.  Forster: 
"  The  jury  found  that  the  bought  and  sold  notes  were  evidence  of  the 
contract,  but  on  the  ground  that  those  documents,  having  been  delivered 
to  each  of  the  parties  after  signing  the  entry  in  the  book,  constituted 
evidence  of  a  new  contract  made  between  the  parties  on  the  footing  of 
those  notes.  That  case  may  be  perfectly  correct;  but  it  does  not 
decide  that,  if  the  bought  and  sold  notes  disagree,  or  there  be  a  mem- 
orandum in  the  book  made  according  to  the  intention  of  the  parties, 
that  memorandum  signed  by  the  broker  would  not  be  good  evidence  to 
satisfy  the  Statute  of  Frauds."  The  same  learned  judge  expresses  him- 
self to  the  same  effect  in  Pitts  v.  Beckett.^  It  is  clear  also  that,  if 
according  to  the  opinion  of  the  witnesses  there  is  a  right  to  return  the 
note  if  contrary  to  instructions,  the  keeping  of  the  note  makes  it  bind- 
ing, and  not  the  signature. 

These  are  the  principal  authorities  cited  by  Mr.  Smith  on  Mercantile 
Law  *  in  support  of  the  principle  now  discussed ;  and  from  this  review 
I  gather  that  in  the  greater  number  of  the  cases  the  doctrine  that 
bought  and  sold  notes  are  the  sole  evidence  of  the  contract  is  not 
recognized,  nor  was  the  point  decided  that  other  evidence  of  the  con- 
tract and  of  a  compliance  with  the  statute  is  inadmissible  if  bought  and 
sold  notes  have  been  delivered  which  disagree.  And  if  the  principle  is 
not  established  by  direct  authority,  the  manifest  evil  resulting  from  it 
is  a  strong  ground  for  believing  that  it  is  not  founded  on  law. 

Then,  if  other  evidence  of  the  contract  and  of  a  compliance  with  the 
statute  was  admissible,  the  second  question  raised  by  the  defendant 

1  1  M.  &  Rob.  368.  2  9  M.  &  W.  804,  807. 

8  13  M.  &  W.  743.  4  Smith,  Merc.  L.  452,  4th  ed. 


SECT.    VI.]  SIEVEWRIGHT   V.    ARCHIBALD.  457 

remains  to  be  considered,  namely,  whether  there  was  sufficient  evidence 
to  sustain  the  verdict  for  the  plaintiff.     Upon  this  point  I  think  the 
jury  were  waiTanted  in  inferring  that  the  substance  of  the  contract  was 
as  alleged  in  the  amended  declaration  and  as  stated  in  the  defendant's 
note.     The  broker  who  made  the  contract  apjjears  to  have  so  under- 
stood it,  as  he  so  expressed  it  at  the  time  :  the  defendant  with  whom 
he  made  it  probably  so  understood  it,  as  he  kept  the  note  in  that  form 
without  objection,  and  treated  for  a  compromise  on  the  assumption  that 
he  was  bound  thereby,  and  produced  it  at  the  trial  as  the  contract.   The 
plaintiff  might  well  so  understand  it;  for  as  Dunlop's  iron  was  a  Scotch 
iron,  the  article  which  he  intended  to  deliver  Avas  the  article  which  the 
defendant  intended  to  buy.     There  is  no  evidence  that  Scotch  iron 
made  by  Dunlop  was  better  than  any  other  Scotch  iron  ;  on  the  con- 
trary it  is  probable  fi'om  the  conduct  of  the  parties  that  the  mention 
of  Dunlop's  name  was  an  immaterial  accident,  not  affecting  the  sid> 
stance  of  the  bargain.     As  in  the  case  of  the  purchase  of  wheat  or 
other  article  of  usual  supply  by  its  known  denomination,  if  the  dock 
where  it  was  stored  or  the  ship  in  which  it  was  brought  was  mentioned 
in  one  note  and  omitted  in  another,  the  omission  of  the  place  would,  I 
presume,  be  held  immaterial ;  so  the  omission  of  the  manufacturer  of 
Scotch  iron  in  the  defendant's  note  ought  to  be  held  immaterial  if  the 
subject  of  his  purchase  was  intended  to  be  Scotch  iron ;  and  his  con- 
duct is  good  evidence  of  such  intention.     If  the  evidence  was  that  the 
defendant  had  proposed  to  buy  Scotch  iron,  and  that  the  plaintiff  had 
proposed  to  sell  him  the  article  he  wanted,  namely,  Dunlop's,  and  the 
defendant  had  described  his  contract  to  be  a  purchase  of  Scotch  iron  in 
a  memorandum  made  at  the  time,  the  jury  would  infer  that  Scotch  iron 
was  of  the  substance  of  the  contract.     The  evidence  now  in  the  case 
appears  to  me  to  warrant  the  same  conclusion.    If  the  substance  of  the 
contract  was  as  alleoed  in  the  defendant's  note,  that  note  alone  would 
be  a  sufficient  memorandum  of  the  bargain  signed  by  an  agent  within 
the  statute.     The  note  delivei-ed  to  the  defendant  was  held  sufficient  by 
Lord  Kenyon  in  Rucker  v.  Cammeyer;^  one  note  only  was  offered  in 
evidence  by  the  plaintiffs  in  Powell  v.  Divett,^  and  no  objection  was 
made  on  that  account;  one  note  alone  was  held  by  Lord  Den  man  to 
be  sufficient  in  Hawes  v.  Forster ;  ^  one  note  signed  by  the  defendant  was 
held  sufficient  in  Rowe  v.  Osborne,*  though  it  varied  from  the  note 
signed  by  the  plaintiff's  broker  which  had  been  sent  to  the  defendant. 
But  it  is  not  necessary  to  discuss  whether  one  note  alone  would  be  a 
sufficient  memorandum ;  for,  if  the  substance  of  the  contract  was  as  is 
alleged,  the  notes  did  not  substantially  vary.     As  it  was  held  in  Bold 
V.  Rayner  ^that  several  apparent  differences  in  the  terms  of  bought  and 
sold  notes  might  be  reconciled  bv  evidence  of  mercantile  usage  in 

1  1  Esp.  N.  P   C.  105.  2  15  East,  29.  a  1  M.  &  Rob.  368. 

*  1  Stark,  N.  P.  C.  140.  5  i  M.  &  W.  343;  s.  c.  Tyr.  &  G.  820. 


458  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.   I. 

respect  to  those  terms,  so  where  two  descriptions  are  used  in  those 
instruments,  of  that  which  in  the  intention  of  the  parties  may  be  the 
same  article,  I  think  the  apparent  discrepancy  may  be  removed  by  evi- 
dence of  such  intention ;  and  that  if  both  notes  were  essential  to  the 
plaintiff's  case,  both  may  be  reconciled  upon  this  evidence  and  held 
valid,  they  not  being  inconsistent  as  was  the  case  in  Thornton  v. 
Kempster.^ 

If  it  is  further  objected  for  the  defendant  that  the  question  of  ratifi- 
cation was  left  to  the  jury  instead  of  asking  them  what  was  the  sub- 
stance of  the  contract,  it  appears  to  me  that  the  jury  intended  to  find 
that  the  contract  was  as  alleged  in  the  declaration  and  expressed  in 
the  bought  note ;  but  if  not,  this  objection  would  not  warrant  the 
entry  of  a  verdict  for  the  defendant,  which  is  the  present  rule :  if  the 
point  can  be  resorted  to  at  all,  it  goes  to  a  new  trial  only.  For  these 
reasons  my  opinion  is  against  the  defendant  on  this  second  ground 
also  ;  and  I  think  his  rule  ought  to  be  discharged. 

PATTESOJf,  J.,  after  stating  that  it  was  unnecessary  to  recapitulate 
the  facts,  as  he  adopted  the  full  statement  in  the  judgment  of  Lord 
Campbell,  C.  J.,  proceeded  as  follows :  — 

The  Statute  of  Frauds  requires  that  some  note  or  memorandum  in 
writing  of  the  bargain  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  lawfully  authorized.  The 
question  is.  Whether  in  this  case  there  was  any  such  note  or  memoran- 
dum in  writing  signed  by  the  defendant  or  his  agent  ?  If  there  was,  I 
take  it  to  be  clearly  immaterial  whether  there  was  any  such  note  or 
memorandum  signed  by  the  plaintiff  (see  Egerton  v.  Mathews,^  where 
the  memorandum  was  signed  by  the  defendants  themselves,  not  by  a 
broker  or  agent,  and  none  was  signed  by  the  plaintiff,  yet  it  was  held 
that  the  statute  was  satisfied)  ;  for  I  consider  that  the  memorandum 
need  not  be  the  conti-act  itself,  but  that  a  contract  may  be  made  with- 
out writing;  and  if  a  memorandum  in  writing  be  afterwards  made, 
embodying  that  contract,  and  be  signed  by  one  of  the  parties  or  his 
agent,  he  being  the  party  to  be  charged  thereby,  the  statute  is  satisfied. 
Still  it  is  plain  that,  if  the  original  contract  was  itself  in  writing  signed 
by  both  parties,  that  would  be  the  binding  instrument,  and  no  subse- 
quent memorandum  signed  by  one  party  could  have  any  effect.  In 
this  case  the  contract  was  made  by  a  broker  acting  for  both  parties ; 
but  such  contract  was  not  in  wi'iting  signed  by  him  or  them.  If  there 
be  any  writing  to  satisfy  the  statute  it  must  be  some  subsequent  mem- 
orandum in  writing  signed  by  the  defendant  or  his  agent.  There  are 
subsequent  memoranda  in  writing  signed  by  the  broker,  namely,  the 
bought  and  sold  notes.     Which  of  these,  if  either,  is  the  memorandum 

• 

in  writing  signed  by  the  defendant  or  his  agent  ?     The  bought  note  is 

delivered  to  the  buyer,  the  defendant ;  the  sold  note  to  the  seller,  the 

1  5  Taunt.  786.  2  6  East,  307. 


SECT.    VI.]  SIEVEWKIGIIT    V.    ARCHIBALD.  459 

pliiintiff;  each  of  them  in  the  language  used  puqiorts  to  be  a  repre- 
sentation by  the  broker  to  the  person  to  wliom  it  is  delivered  of  what 
he  the  broker  has  done  as  agent  for  that  person.  Surely  the  bought 
note  delivered  to  the  buyer  cannot  be  said  to  be  the  mcTnorandum  of 
the  contract  signed  by  the  buyer's  agent  in  order  that  he  may  be  bound 
thereby ;  for  then  it  would  have  been  delivered  to  the  seller,  and  not 
to  the  buyer ;  and  vice  versa  as  to  the  sold  note.  Can  then  the  sold 
note  delivered  to  the  seller  be  treated  as  the  memorandum  signed  by 
the  agent  of  the  buyer,  and  binding  him  the  buyer  thereby  ?  The  very 
language  of  it  shews  that  it  caimot.  In  the  city  of  London,  where  this 
contract  was  made,  the  broker  is  bound  to  enter  in  his  book  and  sign 
all  contracts  made  by  him ;  and  if  the  broker  had  made  such  signed 
entry  I  cannot  doubt,  notwithstanding  the  cases  and  clicfa  apparently 
to  the  contrary,  that  such  memorandum  would  be  the  binding  contract 
on  both  parties.  In  the  case  of  Hawes  v.  Forster  ^  there  was  such  a 
memorandum  signed  in  the  broker's  book :  there  were  also  bought  and 
sold  notes  tallying  with  each  other,  but  varying  from  the  book.  On  the 
first  trial  of  that  case  Lord  Denman  held  that  the  bought  note  pro- 
duced by  the  buyer  (the  plaintiif )  was  sufficient,  and  was  the  proper 
evidence  of  the  contract  and  not  the  book,  and  that  no  notice  to  pro- 
duce the  sold  note  need  be  given  to  the  defendant.  The  court  on 
motion  granted  a  new  trial,  holding  that  this  evidence  was  not  the 
proper  evidence  of  the  contract,  unless  there  was  a  custom  of  trade  in 
London  that  the  bought  and  sold  notes,  and  not  the  signed  broker's 
book,  were  the  contract,  and  considering  that  such  custom  had  not  been 
sufficiently  inquired  into.  The  case  is  so  explained  by  Parke,  B.,  in 
Thornton  v.  Cliarles,-  and  again  in  Pitts  v.  Beckett ;  ^  and  my  own  note 
of  the  case  (I  having  been  a  member  of  the  court  which  granted  the 
new  trial*)  is  in  entire  conformity  with  that  explanation.  On  the  new 
trial  the  jury  found  the  custom  that  the  bought  and  sold  notes  consti- 
tuted the  contract,  and  not  the  broker's  book :  a  bill  of  exceptions  was 
tendered;  but  the  defendant  did  not  persist,  and  submitted  to  the  ver- 
dict. Possibly,  if  he  had,  it  might  have  been  held  that  the  bought  and 
sold  notes  acquiesced  in  constituted  a  new  contract ;  but  that  they  could 
ever  be  treated  under  such  circumstances  as  the  original  contract  seems 
to  me  impossible. 

However,  in  the  present  case  there  was  no  signed  memorandum  in 
the  broker's  book :  therefore  the  bought  and  sold  notes  together,  or 
one  of  them  separately,  must  be  the  memorandum  in  writing  signed 

1  1  M.  &  Rob.  368.  2  9  M.  &  W.  802.  3  13  M.  &  W.  743,  746. 

*  The  case  was  argued  before  Denman,  C.  J.,  Littledale,  Parke,  and  Tatteson,  JJ., 
on  May  80  and  June  3,  1833,  by  Sir  James  Scarlett,  D.  Pollock,  and  K.  Gurney, 
for  the  plaintiffs,  and  Sir  John  Campbell,  Solicitor-General,  and  Blackburne,  for  the 
defendants.  Denman,  C.  J.,  delivered  judgment  on  June  12.  No  decision  having 
been  pronounced  on  the  question  of  law,  the  case  was  not  reported. 


460  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.    T. 

by  the  defendant's  agent,  or  there  is  none  at  all,  and  the  statute  will 
not  be  satisfied. 

If  the  bought  and  sold  notes  together  be  the  memorandum,  and  they 
differ  materially,  it  is  plain  that  there  is  no  memorandum  :  the  court 
cannot  possibly  say,  nor  can  a  jury  say,  which  of  them  is  to  prevail 
over  the  other  ;  read  together  they  are  inconsistent,  assuming  the  vari- 
ance between  them  to  be  material ;  and  if  one  prevails  over  the  other, 
that  one  will  be  the  memorandum,  and  not  the  two  together. 

If  on  the  other  hand  one  only  of  these  notes  is  to  be  considered  as 
the  memorandum  in  writing  signed  by  the  defendant's  agent  and  bind- 
ing the  defendant,  which  of  them  is  to  be  so  considered,  the  bought 
note  delivered  to  the  defendant  himself  or  the  sold  note  delivered  to 
the  plaintiff?  I  have  already  stated  that  I  cannot  think  that  either  of 
them  by  itself  can  be  so  treated.  In  no  one  of  the  cases  has  the  court 
or  a  judge  at  nisi  priiis  held  that  it  coixld :  all  that  Lord  Denman  held 
in  Hawes  v.  Forster,^  on  the  first  trial,  was  that  proof  of  one  was  sufii- 
cient  without  notice  to  produce  the  other,  thereby  holding  only  that 
the  other  must  be  taken  to  correspond  with  that  produced  until  the 
opposite  party  produced  the  other  and  sh'ewed  the  variance.  But  on 
the  second  trial  notice  to  produce  the  other  was  given,  and  it  was  pro- 
duced, and  the  two  corresponded.  In  Goom  v.  Aflalo  ^  there  was  no 
variance  at  all ;  and  the  only  question  was,  whether,  as  there  was  an 
unsigned  memorandum  in  the  broker's  book,  the  bought  and  sold  notes 
could  be  treated  as  a  memorandum ;  and  the  court  held  that  they  could. 
All  three  corresponded  in  that  case. 

If  this  were  res  integra  I  am  strongly  disposed  to  say  that  I  should 
hold  the  bought  and  sold  notes  together  not  to  be  a  memorandum  to 
satisfy  the  Statute  of  Frauds  ;  but  I  consider  that  point  to  be  too  well 
settled  to  admit  of  discussion ;  yet  there  is  no  case  in  which  they  have 
varied  in  which  the  court  has  uj^held  the  contract ;  plainly  shewing 
that  the  two  together  have  been  considered  to  be  the  memorandum 
binding  both  parties  :  the  reason  of  which  is  to  my  mind,  I  confess, 
quite  unsatisfactory ;  but  I  yield  to  authority. 

I  do  not  go  through  and  examine  all  the  cases  on  this  subject :  they 
are  collected  in  the  last  edition  of  Smith's  Mercantile  Law  by  Mr. 
Dowdeswell ;  and  they  shew  that  it  has  invariably  been  held  that, 
where  the  bought  and  sold  notes  are  resorted  to  as  the  contract  or  as 
the  memorandum  of  the  contract,  and  they  vary  in  any  material  point, 
there  is  no  writing  to  satisfy  the  statute. 

It  seems  to  me  therefore  that  the  only  question  to  be  determined  in 
this  case  is.  Do  the  bought  and  sold  notes  differ  in  any  material  point  ? 
Now  the  one  is  "Dunlop's  Scotch  iron,"  the  other  "Scotch  iron"  gen- 
erally :  the  one  would  be  complied  with  by  delivery  of  Scotch  iron  of 
any  person's  manufacture,  jDossibly  greatly  inferior  to  that  of  Messrs. 
1  1  M.  &  Bob.  368.  '-i  6  B.  &  C.  117. 


SECT.    VI.]  SIEVEWRIGHT   V.    ARCHIBALD.  461 

Dunlop  :  the  other  ties  the  parties  down  to  Dunlop's ;  possibly  again 
that  may  be  inferior  to  some  other  Scotch  iron.  How  is  it  possible  to 
read  the  two  notes  together  and  say  that  they  mean  the  same  thing,  or 
to  say  that  if  yon  incorj)orate  the  one  note  with  the  other  tliat  which 
specifies  Dunlop's  iron  will  not  immediately  prevail  over  that  which 
does  not '?  I  cannot  but  think  that  they  are  as  much  at  variance  as  the 
bought  and  sold  notes  in  Thornton  v.  Kempster,^  where  the  one  was 
"  Riga "  and  the  other  "  Petersburg "  hemp,  and  where  the  Court  of 
Common  Pleas  held  there  was  no  contract  independent  even  of  the 
Statute  of  Frauds.  The  broker  indeed  stated  in  his  evidence  that  he 
made  the  original  contract  verbally  for  Dunlop's  Scotch  iron ;  but  how 
can  that  evidence  make  the  bought  note,  delivered  to  the  defendant 
for  Scotch  iron  generally,  to  be  a  memorandum  signed  by  the  defend- 
ant's agent  binding  the  defendant  ?  The  question  is,  not  whether  either 
of  the  notes  corresponds  with  the  contract  originally  made  by  word  of 
mouth,  but  whether  either  of  the  notes  separately,  ^:>e?'  se,  be  a  signed 
memorandum  binding  upon  either  party.  Upon  the  whole  therefore, 
however  much  I  may  regret  that  such  an  objection  should  prevail,  I 
feel  bound  to  say  that  in  my  opinion  there  was  no  evidence  in  this  case 
of  any  contract  binding  on  the  defendant. 

Lord  Campbell,  C.  J.  I  regret  to  say  that  the  view  which  I  take 
of  the  law  in  this  case  compels  me  to  come  to  the  conclusion  that  the 
defendant  is  entitled  to  our  judgment,  although  the  merits  are  entirely 
against  him ;  although,  believing  that  he  had  broken  his  contract,  he 
could  only  have  defended  the  action  in  the  hope  of  mitigating  the 
damages ;  and  although  he  was  not  aware  of  the  objection  on  which 
he  now  relies  till  within  a  few  days  before  the  trial.  But  it  apjDcars  to 
me  that  we  cannot  refuse  giving  effect  to  this  objection  without  disre- 
garding the  Statute  of  Frauds,  without  overturning  decided  cases,  and 
without  danger  of  introducing  uncertainty  and  confusion  into  the  rules 
for  enforcing  mercantile  contracts  of  buying  and  selling. 

The  plaintiff  in  his  declaration  set  out  the  following  written  docu- 
ment, stated  to  be  a  "sold  note""  of  certain  goods  agreed  to  be  pur- 
chased from  him  by  the  defendant :  — 

26  Lombard  Street,  London,  February  26,  1849. 

Sold  Charles  Dickson  Archibald,  Esq.,  48  Upper  Harley  Street,  for  Messrs. 
Sievewright,  Watson,  &  Co.,  Glasgow,  500  tons  Messi-s.  Dunlop,  Wilson,  & 
Co.'s  pig-iron,  three-fifths  No.  1  and  two-filths  No.  3,  at  525.  per  ton,  free  on 
board  at  Troon.  Payment,  cash  within  one  month  from  this  date  against  orders 
of  delivery. 

This  professed  to  be  signed  by  "  Wm.  Richardson,  broker." 
The  declaration  in  the  usual  form  averred  that  the  iron  was  duly 
tendered  to  the  defendant,  but  that  he  refused  to  accept  or  to  pay  for 
it.     The  only  material  plea  was  >iO)i  assum2)sit.     William  ^Miller  being 

1  5  Taunt.  786. 


462  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.    I. 

called  as  a  witness  swore  as  follows :  "  I  am  a  metal  broker  in  the  city : 
plaintiff  carries  on  business  at  Glasgow  under  the  firm  of  Sievewright, 
Watson,  &  Co.  I  received  instructions  from  him  to  sell  500  tons  of 
Dunlop,  Wilson,  &  Co.'s  pig-iron.  I  sold  it  to  the  defendant.  I  saw 
the  defendant  in  London :  he  gave  me  a  verbal  authority  to  make  the 
purchase  for  him.  I  agreed  with  him  that  he  was  to  be  the  purchaser 
of  500  tons  of  Dunlop,  Wilson,  &  Co.'s  iron.  The  name  of  Sieve- 
wright, Watson,  &  Co.  was  mentioned  as  the  sellers.  On  the  26th  of 
February  I  wrote  a  contract,  and  sent  it  to  the  defendant  in  a  letter." 
(The  bought  note  being  called  for,  it  was  produced  by  the  defendant ; 
and  it  corresponded  with  the  sold  note  set  out  in  the  declaration, 
except  that,  instead  of  "  500  tons  Messrs.  Dunlop,  Wilson,  &  Co.'s  pig- 
iron,"  it  stated  "  500  tons  of  Scotch  pig-iron."  The  bought  note  being 
read,  the  witness  continued.)  "  This  was  enclosed  in  a  letter  of  26th 
February,  and  sent  to  the  defendant  in  Upper  Harley  Street.  I  sent 
to  the  plaintiff  the  same  day  a  sold  note  "  (a  copy  of  it  was  admitted 
and  read  as  set  out  in  the  declaration).  "  Dunlop,  Wilson,  &  Co.  are 
manufacturers  of  iron  in  Scotland ;  and  their  iron  is  Scotch  iron." 

The  defendant's  counsel  insisted  that  there  was  no  binding  contract 
between  the  parties,  there  being  a  material  variance  between  the  bought 
and  sold  notes ;  for  according  to  the  bought  note  the  seller  would  per- 
form his  obligation  by  tendering  500  tons  of  pig-iron  made  by  any 
manufacturer  in  any  part  of  Scotland,  whereas  by  the  sold  note  the 
buyer  might  demand  500  tons  of  pig-iron  made  by  Dunlop,  Wilson,  & 
Co.,  which  might  be  of  a  peculiarly  good  quality  and  of  superior  reputa- 
tion in  the  market.  I  intimated  an  opinion  that  the  variance  was 
material,  and  that  as  there  was  no  entry  in  the  broker's  book  signed  by 
him,  and  the  plaintiff  had  proposed  to  prove  the  contract  by  the  bought 
and  sold  notes,  the  variance  was  fatal.  The  plaintiff's  counsel  then 
said  that  he  had  clear  evidence  to  prove  that  the  defendant  had  subse- 
quently ratified  the  contract ;  and  objection  being  made  that  he  could 
not  have  ratified  the  contract  as  set  out  in  the  declaration,  I  permitted 
the  declaration  to  be  amended  according  to  the  terms  of  the  bought 

note. 

Miller  the  broker  being  recalled,  after  stating  that  he  had  the  deliv- 
ery orders  for  the  500  tons  of  iron  ready  to  be  handed  over  to  the 
defendant  on  the  26th  of  March,  said  :  "  I  saw  the  defendant  about  the 
end  of  March.  On  the  4th  of  April  he  agreed  that  I  should  propose  to 
the  plaintiff  to  take  a  bill  at  four  months,  and  the  delivery  orders  to  be 
lodged  as  a  security  at  the  Union  Bank.  The  price  of  iron  had  then 
fallen  5s.  a  ton.  Before  the  29th  of  March  the  defendant  had  given 
me  unlimited  authority  to  get  the  transaction  settled  as  I  thought  fit." 

There  were  read  a  letter  from  the  defendant  to  Richardson  of  5th 
April,  saying,  "  You  must  manage  the  iron  speculation  as  you  think 
fit ; "  a  letter  written  by  Richardson  to  the  plaintiff,  saying  that  "  Mr. 


SECT.    VI.]  SIEVEWRIGHT   V.    ARCHIBALD.  463 

Archibald  agreed  to  give  a  bill  at  four  months;"  the  plaintiff's  answer, 
refusinir  to  take  a  bill  at  four  months,  but  offering  to  take  one  at  three 
months ;  another  letter  written  about  the  same  time  by  the  defendant 
to  Richardson,  saying,  "I  hope  you  will  conduct  it  to  a  successful 
issue;"  and  further  letters  between  the  parties,  continuing  the  negotia- 
tion till  27th  October,  1849,  when  the  defendant  denied  his  liability. 
I  left  the  question  to  the  jury.  Whether  the  defendant  had  ratificl  the 
contract  sent  to  him,  contained  in  the  bought  note  ?  The  jury  found 
that  he  had;  whereupon  a  verdict  was  entered  for  the  plaintiff  for  £125 
damages,  with  liberty  for  the  defendant  to  move  to  enter  the  verdict 
for  him  if  the  court  should  be  of  ojnnion  that  there  was  not  evidence 
to  prove  the  declaration  as  amended. 

Having  heard  the  rule  obtained  for  this  pui-j)Ose  learnedly  argued,  I 
do  not  think  that  there  was  any  sufficient  evidence  of  ratification. 
Nothing  having  such  a  tendency  was  done  by  the  defendant  before  the 
26th  of  March,  the  day  on  which  he  ought  to  have  pei-foi-med  the  con- 
tract and  on  which  he  broke  it.  What  constituted  the  ratification  ? 
And  what  date  is  to  be  given  to  it?  There  never  was  any  reference 
by  the  defendant  to  the  terms  of  the  bought  note  more  than  of  the 
sold  note.  The  variance  between  them  was  not  known  to  him  till  after 
the  action  was  brought.  Nor  was  there  ever  any  assent  by  the  ])lain- 
tiff  to  accede  to  the  tenns  of  the  bought  note,  wherebv  he  would  have' 
become  bound  to  deliver  Dunlop,  Wilson,  &  Co.'s  pig-iron.  The  sold 
note  containing  different  terras,  instead  of  being  discarded  by  the 
plaintiff,  was  actually  declared  on  by  him,  and  was  set  up  by  him  as 
the  true  contract  till  the  declaration  was  amended.  The  plaintifi'  like- 
wise sought  to  recover  under  a  count  for  goods  bargained  and  sold : 
but  this  could  not  avail  him ;  for  the  defendant  never  accepted  tlie 
goods ;  and  the  contract  was  not  for  the  sale  of  any  specific  goods,  the 
property  in  which  could  be  considered  as  transferred  to  him.  Recur- 
ring to  the  special  count,  the  plaintiff  attempted  to  support  it  by  the 
parol  agreement  alleged  to  have  been  entered  into  between  the  broker 
and  the  defendant,  using  the  bought  note  as  a  memorandum  of  the 
agreement  to  satisfy  the  Statute  of  Frauds. 

In  the  first  place  there  seems  a  difticulty  in  setting  up  any  parol 
agreement  where  the  parties  intended  that  there  should  be  and  under- 
stood that  there  was  a  written  agreement :  Mdiat  passed  between  the 
defendant  and  the  broker  previous  to  the  26th  of  February  seems  to 
me  only  to  amount  to  an  authority  from  the  defendant  to  the  broker  to 
enter  into  the  contract ;  and  Miller  himself  says :  "  On  the  26th  ol 
February  I  wrote  a  contract  and  sent  it  to  the  defendant.  I  sent  a 
sold  note  the  same  day  to  the  jjlaintiff."  Again,  the  memorandum 
under  the  17th  section  of  the  Statute  of  Frauds  must  be  signed  by  the 
party  to  be  charged  or  his  agent.  But  assuming  that  the  parol  agree- 
ment was  the  contract,  and  that  when  Miller  Avrote  the  bought  note 


464  SIEVEWRIGHT    V.    ARCHIBALD.  [CHAP.    I. 

it  was  only  to  tell  his  principal  what  he  had  done,  there  is  a  difficulty 
in  saying  that,  being  functus  officio  as  far  as  making  the  bargain  was 
concerned,  he  had  any  authority  to  sign  the  memorandum  as  the  defend- 
ant's agent,  and  thereby  to  charge  him.     But  if  he  had,  can  this  be  said 
to  be  a  true  memorandum  of  the  agreement  ?     We  are  here  again  met 
by  the  objection  of  the  variance,  which  is  as  strong  between  the  parol 
ao-reement  and  the  bought  note  as  between  the  bought  note  and  the 
sold  note.     If  the  bought  note  can  be  considered  a  memorandum  of 
the  parol  agreement,  so  may  the  sold  note ;  and  which  of  them  is  to 
prevail  ?     It  seems  to  me  therefore  that  we  get  back  to  the  same  point 
at  which  we  were  when  the  variance  was  first  objected  and  the  declara- 
tion was  amended.     I  by  no  means  say  that  where  there  are  bought 
and  sold  notes  they  must  necessarily  be  the  only  evidence  of  the  con- 
tract :  circumstances  may  be  imagined  in  which  they  might  be  used  as 
a  memorandum  of  a  parol  agreement.     Where  there  has  been  an  entry 
of  the  contract  by  the  broker  in  his  book  signed  by  him,  I  should  hold 
without  hesitation,  notwithstanding  some  dicta  and  a  supposed  ruling 
of  Lord  Tenterden  in  Thornton  v.  Meux  ^  to  the  contrary,  that  this 
entry  is  the  binding  contract  between  the  parties,  and  that  a  mistake 
made  by  him,  when  sending  them  a  copy  of  it  in  the  shape  of  a  bought 
or  sold  note,  would  not  affect  its  validity.     Being  authorized  by  the 
•one  to  sell  and  the  other  to  buy  in  the  terms  of  the  contract,  when  he 
has  reduced  it  into  writing  and  signed  it  as  their  common  agent,  it 
binds  them  both  according  to  the  Statute  of  Frauds,  as  if  both  had 
signed  it  with  their  own  hands  :   the  duty  of  the  broker  requires  him 
to  do  so  ;    and  till  recent  times  this  duty  was  scrupulously  performed 
by  every  broker.     What  are  called  the  bought  and  sold  notes  were 
sent  by  him  to  his  principals  by  way  of  information  that  he  had  acted 
upon  their  instructions,  but  not  as  the  actual  contract  which  was  to  be 
binding  upon  them.     This  clearly  appears  from  the  practice  still  fol- 
lowed of  sending  the  bought  note  to  the  buyer  and  the  sold  note  to 
the  seller ;    whereas,  if  these  notes  had  been  meant  to  constitute  the 
contract,  the  bought  note  would  be  put  into  the  hands  of  the  seller, 
and  the  sold  note  into  the  hands  of  the  buyer,  that  each  might  have  the 
eno-agement  of  the  other  party  and  not  his  own.     But  the  broker  to 
save  himself  trouble  now  omits  to  enter  and  sign  any  contract  in  his 
book,  and  still  sends  the  bought  and  sold  notes  as  before.     If  these 
ao-ree,  they  are  held  to  constitute  a  binding  contract ;  if  there  be  any 
material  variance  between  them,  they  are  both  nullities,  and  there  is 
no  binding  contract.     This  last  proposition,  though  combated  by  the 
plaintiff's  counsel,  has  been  laid  down  and  acted  upon  in  such  a  long 
series  of  cases  that  I  could  not  venture  to  contravene  it,  if  I  did  not 
assent  to  it ;  but  where  there  is  no  evidence  of  the  contract  unless  by 
the  bought  and  sold  notes  sent  by  the  broker  to  the  parties,  I  do  not 

1  M.  &  M.  43. 


SECT.    VI.]  MOORE  V.    CAMPBELL.  465 

see  liow  there  can  be  a  binding  contract  unless  they  substantially  agree; 
for  contracting  parties  must  consent  to  the  same  terms;  ami  where  the 
terms  in  the  two  notes  differ  there  can  be  no  reason  why  faith  should 
be  given  to  the  one  more  than  the  other.  This  is  certainly  a  most 
inconvenient  mode  of  carrying  on  commercial  transactions  :  from  the 
carelessness  of  brokers  and  their  clerks  mistakes  not  untieqiicntly  arise, 
of  which  unconscientious  men  take  advantage ;  and  no  buyer  or  seller 
can  be  safe  unless  he  sees  the  sold  or  bought  note  as  well  as  his  own ; 
a  precaution  Avhich  the  course  of  business  does  not  permit  to  be  taken. 
But  these  inconveniences  can  only  be  remedied  by  the  Legislature 
enforcing  upon  the  broker  the  faithful  ))erformance  of  his  duty  in  enter- 
ing and  signing  the  contract  in  his  book. 

In  the  present  case,  there  being  a  material  variance  between  the 
bought  and  sold  note,  they  do  not  constitute  a  binding  contract :  there 
is  no  entry  in  the  broker's  book  signed  by  him ;  and  if  there  Avere  a 
parol  agreement,  there  being  no  sufficient  memorandum  of  it  in 
writing,  nor  any  part  acceptance  or  part  payment,  the  Statute  of 
Frauds  has  not  been  complied  with;  and  I  agree  with  my  brother 
Patteson  in  thinking  that  the  defendant  is  entitled  to  the  verdict. 

My  brother  Wiglitman,  who  heard  the  argument  but  is  now- 
engaged  elsewhere  in  the  discharge  of  a  public  duty,  has  authorized 
me  to  say  that  he  has  read  this  judgment  and  that  he  entirely  concurs 
in  it.  But  the  court  being  divided,  instead  of  making  the  rule  abso- 
lute to  enter  the  verdict  for  the  defendant,  we  think  that  a  nonsuit 
should  be  entered,  so  that  the  plaintiff  may  have  the  opportunity  to 
bring  a  fresh  action,  and  by  a  special  verdict  or  a  bill  of  exceptions 
to  take  the  opinion  of  a  court  of  eiTor  on  his  rights. 

Hide  absolute  to  enter  a  nonsuit. 


MOORE  V.   CAMPBELL. 
In  the  Exchequer,  July  7,  1854. 

[Reported  in  10  Exchequer,  323.] 

The  declaration  stated  that  in  September,  1853,  the  defendant 
agreed  with  the  plaintiff  to  sell  to  him  100  tons  of  Petersburg  clean 
hemp,  expected  to  arrive  at  Liverpool  by  certain  ships,  namely,  fifty 
tons  by  the  ship  George  Green  and  fifty  tons  by  the  ship  Trina,  at 
the  price  of  £34  per  ton  from  the  quay,  and  on  the  terms  that,  if  the 
ship  or  ships  should  be  lost  or  the  hemp  damaged  on  the  voyage,  the 
VOL.  I.  30 


466  MOORE   V.    CAMPBELL.  [CHAP.    I. 

said  contract  should  be  considered  void  for  such  quantity  as  might  be 
lost  or  damaged,  the  quality  to  be  of  fair  average  of  the  season ;  and 
if  any  dispute  should  arise,  the  same  should  be  settled  by  arbitration. 
Payment  to  be  made  by  the  j^laintiff  by  six  months'  acceptance,  or  cash 
in  fourteen  days  less  two  and  a  half  per  cent,  discount,  at  the  buyer's 
option,  and  on  the  terms  of  customary  allowances.  Averments :  that 
after  the  making  of  the  contract  the  ship  George  Green  arrived  at 
Liverpool  with  fifty  tons  of  such  hemp  on  board,  and  not  damaged, 
and  the  quantity  of  fifty  tons  of  hemp  thereupon  became  deliverable 
to  the  plaintiff  according  to  the  terms  of  the  said  contract,  and  the 
plaintiff  was  at  all  times  ready  to  accept  the  said  quantity  of  fifty 
tons  of  hemp  according  to  the  said  contract,  and  to  exercise  his 
option,  and  to  pay  for  the  same  by  a  six  months'  acceptance ;  and  the 
plaintiff  did  all  things  necessary  to  be  done  by  him  in  order  to  entitle 
him  to  have  the  said  fifty  tons  of  hemp  delivered  to  him ;  and  a 
reasonable  time  for  the  delivery  expired  before  this  action;  of  all 
■which  the  defendant  had  notice.  Yet  the  defendant  broke  his  con- 
tract, and  did  not  deliver  to  the  plaintiff  from  the  quay  or  else- 
where fifty  tons  of  the  hemp  arrived  as  aforesaid  by  the  ship  George 
Green,  and  no  part  of  the  said  hemp  was  ever  delivered  to  the  plain- 
tiff, &c. 

Pleas  (inter  alia)  :  first,  that  it  was  not  agreed  as  alleged ;  thirdly, 
that  within  a  reasonable  time  for  the  delivery  and  acceptance  of  the 
said  quantity  of  fifty  tons  of  hemp  the  defendant  was  ready  and 
willing  and  offered  to  deliver  to  the  plaintiff  the  said  hem]),  but  he 
refused  to  accept  the  same  from  the  defendant ;  fourthly,  that,  after 
the  making  of  the  agreement  and  before  any  breach  thereof,  the  agree- 
ment was  mutually  rescinded  by  the  plaintiff  and  the  defendant. 
Issues  thereon. 

At  the  trial  before  Piatt,  B.,  at  the  last  Liverpool  spring  assizes,  the 

following  facts    appeared :    In    September,    1853,   the   plaintiff,   who 

resided  at  Douglas  in  the  Isle  of  Man,  employed  one  Wilks,  a  flax 

and  hemp   broker   at  Liverpool,   to   purchase   for  him   some   hemp. 

Wilks,  having  negotiated  with  the  defendant,  sent  him  the  following 

note:  — 

LiVEKPOOL,  8th  of  September,  1853. 

Sold,  per  Mr.  James  Campbell,  to  Mr.  W.  F.  Moore,  Douglas,  Isle  of  Man, 
100  tons  of  Petersburg  clean  hemp,  to  arrive  ^;er  Trina  and  George  Green,  at 
£34  per  ton  ;  payment  at  the  option  of  the  buyer  by  acceptance  on  London  at 
six  months  from  delivery  or  cash  in  fourteen  days  less  two  and  a  half  per  cent. ; 
to  be  taken  from  the  quay  at  the  landing  weights,  and  to  be  of  fair  average 
quality  for  the  season. 

John  Wilks,  Broker. 

Wilks  afterwards  received  from  the  defendant  the  following 
note :  — 


SECT.    VI.]  *  MOORE   V.   CAMPBELL.  467 

15  RuMFORD  Street,  Liverpool, 

8th  of  September,  1853. 
Mk.  John  Wilks, 

I  have  this  day  sold  through  you  the  following  goods  to  Mr.  W.  F.  Moore :  — 
50  tons  Petersburg  clean  hemp  expected  to  arrive  per  George  Green. 
60  tons  per  Trina. 
100  tons  at  £34  per  ton  from  the  quay. 

If  the  ship  or  ships  are  lost,  or  the  hemp  damaged  on  the  voyage,  this  contract 
to  be  considered  void  lor  such  quantity  as  may  be  lost  or  damaged.  The 
quality  to  be  of  fair  average  of  the  season ;  and  if  any  dispute  arises,  the  same  to 
be  settled  by  arbitration. 

Payment,  six  months'  acceptance  or  cash  in  fourteen  days  less  two  and  a  half 
per  cent,  discount,  at  the  buyer's  option. 

Yours  respectfully,  James  Campbell. 

Customary  allowances. 

Campbell,  who  was  a  broker,  had  sold  the  hemj^  on  behalf  of  Smith, 
a  merchant,  who  had  contracted  ^vith  Messrs.  Bohtlingk  &  Co.  and 
Messrs.  Telo  and  Prange,  Russia  merchants  in  Liverpool,  to  purchase 
the  hemp  of  them.  On  the  18th  of  September  tlie  George  Green 
arrived  at  Liverpool  with  the  fifty  tons  of  hemp.  On  the  28th  of  Sep- 
tember the  defendant  called  on  Wilks,  and  shewed  him  the  folloAving 
letter  from  Messrs.  Bohtlingk  &  Co.  to  Smith :  — 

9  RuMFORD  Place,  28th  of  September,  1853. 

Sir, — There  are  now  about  thirty-five  tons  clean  hemp  ex  George  Green  on 
the  quay  of  your  lot,  which,  if  not  taken  away  this  afternoon,  we  shall  store  at 
your  risk  and  expense. 

We  further  beg  to  remark  to  you  that,  in  delivering  to  you  the  hemp  after- 
wards ex  warehouse,  we  shall  not  weigh  it,  but  you  must  take  it  at  the  landing 

weight.  ■        We  are  your  obedient  servants, 

Bohtlingk  &  Co. 

W.  W.  Smith,  Esq. 

After  reading  this  letter  Wilks  requested  that  the  hemp  might  be 
warehoused  on  the  plaintift"'s  account;  and  the  defendant  having  com- 
municated with  Messrs.  Bohtlingk,  they  warehoused  the  fifty  tons, 
which  was  fully  landed  on  the  30th  of  September, —  thirty  tons  in  a 
warehouse  of  their  own,  and  twenty  tons  in  a  warehouse  of  Messrs. 
Dean  &  Co.  On  the  same  day  the  defendant  made  out  in  his  own 
name  and  sent  to  Wilks  a  bill  of  parcels. 

On  the  3d  of  October  Wilks  wrote  to  the  defendant  as  follows :  — 

Dear  Sir,  —  I  have  a  letter  this  morning  from  Mr.  W.  F.  Moore.     You  are 

to  draw  upon  him  for  the  amount  of  the  hemp,  as  soon  as  you  are  in  a  position 

to  transfer  it.     Please  to  let  me  know  also  where  it  is  stored,  and  the  rest,  and 

oblige  Yours  truly, 

John  Wilks. 

On  the  15th  of  October  Smith  paid  Messrs.  Bohtlingk  &,  Co.,  and 
obtained  delivery  orders  for  the  fifty  tons  of  hemp.     On  the  17th  the 


468  MOOEE   V.    CAMPBELL.  [CHAP.    I. 

defendant  called  on  Wilks  with  the  delivery  orders,  which  were  as  fol- 
lows :  — 

October  15th,  1853. 

Mr.  John  Wilks. 

Sill,  —  We  hold  to  your  order  about  twenty-two  tons  of  hemp  ex  George 
Green,  lying  in  William's,  1  Brook  Street,  at  6d.  per  ton  per  week,  from  Octo- 
ber 9,  1853,  twenty-eight  days  certain. 

•'     "  William  Dean  &  Co. 

Liverpool,  15th  of  October,  1853. 
W.  H.  Smith,  Esq. 

Sir,  —  We  hold  to  your  disposal  about  thirty  tons  St.  Petersburg  clean  hemp 
ex  George  Green,  lying  9  Rumford  Place. 

BOHTLINGK   &   Co. 

Messrs.  Bohtlingk  &  Co., 

Please  to  transfer  the  following  goods  to  the  order  of  Mr.  John  Wilks,  the 
whole  of  the  hemp  specified  in  the  annexed  transfer  note,  and  oblige 

W.  H.  Smith. 
3  High  Street,  Liverpool,  15th  of  October,  1853. 

Wilks  refused  to  give  the  defendant  the  plaintiff's  acceptance,  and 
to  receive  the  above  orders,  on  the  ground  that  the  quantity  was 
therein  described  as  "  about "  fifty-two  tons  ;  and  the  defendant  in  con- 
sequence re-sold  the  hemp.  Evidence  was  tendered  on  behalf  of  the 
defendant  to  prove  that,  according  to  the  course  of  business  in  Liver- 
pool, w4ien  goods  were  warehoused  in  bulk,  it  w^as  usual  for  the  ware- 
houseman in  describing  the  quantity  to  insert  in  the  delivery  order 
the  word  "  about,"  in  order  to  protect  himself  against  deficient  weight. 
This   evidence  was   objected   to,  and   the   learned  judge   refused   to 

receive  it. 

It  was  submitted  on  behalf  of  the  defendant,  first,  that  there  was 
no  binding  contract,  since  the  bought  and  sold  notes  differed  in  some 
material  particulars,  and  Sievewright  v.  Archibald  ^  was  relied  on ;  sec- 
ondly, that  the  original  contract  (if  any)  was  to  deliver  the  hemp  on 
the  quay  by  landing  weight,  and  that  such  contract  was  rescinded 
before  \  breach,  and  another  contract  substituted,  viz.,  to  deliver  from 
the  warehouse.  The  learned  judge  directed  a  verdict  for  the  plaintiff, 
reservino-  leave  to  tlie  defendant  to  move  to  enter  a  verdict  for  him  on 
the  above  points. 

Bkcgh  Hill  in  the  following  tenn  obtained  a  rule  nisi  accord- 
ingly, or  for  a  new  trial  on  the  ground  of  the  rejection  of  evidence ; 
against  which 

Knoides  and  Aspland  now  shewed  cause.  First,  the  contract 
alleged  in  the  declaration  was  proved.  The  17th  section  of  the  Stat- 
ute of  Frauds,  29  Car.  2,  c.  3,  does  not  require  the  contract  to  be 
signed  by  both  parties,  but  only  by  the  party  to  be  charged  by  it,  and 
that  has  been  done  here.     This  is  not  the  ordinary  case  of  bought  and 

1  17  Q.  B.  103. 


SECT.    VI.]  MOORE   V.    CAMPBELL.  469 

sold  notes  made  out  by  a  broker  acting  for  both  parties,  but  it  is  a  con- 
tract made  on  the  one  side  by  the  principal  and  on  the  other  by  a 
broker.  A  memorandum  of  the  contract  is  sent  by  the  broker  to  the 
defendant ;  and  he,  finding  that  it  is  not  the  contract  which  he  agreed 
to,  alters  the  memorandum,  and  then  signs  it.  In  Kowe  v.  Osborne,^ 
Lord  Ellenborough  ruled  that  a  vendee  of  goods  is  bound  by  the  con- 
tract as  stated  in  the  note  signed  by  him  and  delivered  by  the  broker 
who  effected  the  sale  to  the  vendor,  although  this  note  varies  from  tlie 
note  delivered  by  the  broker  to  the  vendee.  That  authority  was 
recognized  and  adopted  in  Cowie  v.  Remfry.-  [Pakke,  B.  The 
question  is,  Avhether  the  defendant  meant  to  bind  himself  unless  there 
was  some  correlative  note  to  bind  the  jjlaintiff.] 

Secondly,  evidence  was  not  admissible  to  prove  that,  according  to 
the  usage  of  trade,  the  delivery  orders  were  in  the  usual  form  where 
goods  were  warehoused  in  bulk.     The  effect  of  such  evidence  would 
be  to  alter  the  terms  of  the  written  agreement  by  parol  testimony. 
The  contract  was  for  the  purchase  of  an  entire  quantity  of  fifty  tons ; 
but  the  evidence,  if  admitted,  would  tend  to  shew  that  the  contract 
was  for  some  uncertain  quantity,  about  that  Aveight.     The  case  is  not 
distinguishable  from  Powell   v.  Edmunds,^  where  the  printed  condi- 
tions of  the  sale  of  growing  timber  omitted  to  state  the  quantity ;  and 
it  was  held  that  parol  evidence  was  not  admissible  to  prove  that  the 
auctioneer  at   the   time    of  sale  warranted   a   certain   quantity.      In 
Blackett  v.  The  Royal  Exchange  Assurance  Company  *  the  action  was 
brought  on  a  policy  of  insurance,  in  the  usual  forai,  on  a  ship,  her  tackle, 
boats,  &c. ;  and  it  was  held  that  evidence  of  usage  that  the  under- 
wi-iters  never  pay  for  the  loss  of  boats  slung  upon  the  outside  of  the 
ship  upon  the  quarter  was  inadmissible.     Lord  Lyudhurst,  C.  B.,  in 
delivering  the  judgment  of  the  court,  says:  "Usage  may  be  admis- 
sible to  explain  what  is  doubtful :  it  is  never  admissible  to  contradict 
what  is  plain." 

Thirdly,  the  original  contract  was  not  rescinded  by  the  substitution 
of  a  new  contract.  The  deUvcry  of  the  goods  from  the  quay  Avas  a 
material  part  of  the  contract,  and  that  could  not  be  varied  by  parol. 
It  is  well  estabhshed  that,  where  a  contract  is  required  to  be  in  Avriting 
by  the  Statute  of  Frauds,  it  cannot  be  altered  by  a  vei-bal  agreement. 
Goss  V.  Lord  ISrugent,^  Stead  v.  Dawber,^  Harvey  v.  Grabham,"  Stowell 
V.  Robinson.^  This  is  not  the  case  of  a  substituted  agreement  and  its 
performance  being  accepted  in  satisfaction  of  a  breach  of  contract. 
Smith  V.  Trowsdale.^ 
Ilit^h  Hill  and  J.  Henderson,  in  support  of  the  rule."     The  plaintiff 

1  1  Stark.  Rep.  140.  2  5  Moo.  P.  C.  232.  3  12  East,  6. 

*  2  C.  &  J.  244.  5  5  B.  &  Ad.  58.  6  lO  A.  &  E.  57. 

7  5A.  &E.  61.  8  3  Bing.  N.  C.  928.  9  3E.  &B.83. 

10  They  were  requested  by  the  court  to  confine  their  arguments  to  the  points  as  to 
the  rescission  of  the  contract  and  the  admissibiUty  of  the  evidence. 


470  MOORE   V.    CAMPBELL.  [CHAP,    I. 

did  not  declare  his  option  to  pay  by  his  acceptance  until  after  the  hemp 
was  Avarehoused.  Therefore  at  the  time  his  option  was  declared  an 
act  had  been  done,  with  the  concurrence  of  both  parties,  which  ren- 
dered the  performance  of  the  original  contract  impossible.  That 
operated  as  a  new  contract,  embodying  all  the  terms  of  the  old  con- 
tract except  the  delivery  on  the  quay  by  the  landing  weight.  A  new 
substituted  agreement  may  exist  although  it  is  incapable  of  being 
enforced  by  action.  In  Stead  v.  Dawber,i  Lord  Denman,  C.  J.,  deliv- 
ering the  judgment  of  the  court,  says :  "  Independently  of  the  stat- 
ute, there  is  nothing  to  prevent  the  total  waiver  or  the  partial  alteration 
of  a  written  contract  not  under  seal  by  parol  agreement ;  and  in  con- 
templation of  law  such  a  contract  so  altered  subsists  between  these 
parties ;  but  the  statute  intervenes,  and  in  the  case  of  such  a  contract 
takes  away  the  remedy  by  action."  A  subsequent  inconsistent  agree- 
ment between  the  same  parties  discharges  a  previous  agreement.  Com. 
Dig.,  Action  on  the  Case  upon  Assumpsit  (G.).  There  being  then  a 
binding  agreement  that  the  hemp  should  be  warehoused  and  delivered 
from  the  warehouse,  it  must  be  assumed  that  the  parties  intended 
to  incoi-porate  with  it  the  usage  of  trade  as  to  delivery.  Such  a 
form  of  order  is  necessary  for  the  protection  of  the  warehouseman, 
since  the  goods  might  decrease  in  bulk  after  they  were  warehoused. 
If  these  orders  are  in  the  usual  and  customary  form,  there  was  that 
species  of  delivery  for  which  the  plaintiiF  impliedly  contracted  when  he 
consented  to  the  goods  being  warehoused.  The  evidence  of  the  usage 
of  trade  was  therefore  necessary,  and  improperly  rejected. 

Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Parke,  B.  In  this  case  my  brother  Piatt  reserved  a  question  on 
the  trial  for  the  consideration  of  the  court,  as  to  the  effect  of  two  notes 
put  in  on  the  part  of  the  plaintiff,  in  order  to  prove  the  contract  alleged 
in  the  declaration.  The  two  notes  differed  in  several  material  points  ; 
and  if  this  were  a  case  in  which  the  plaintiff  sought  to  prove  the  con- 
tract by  means  of  bought  and  sold  notes  made  by  a  broker  for  both 
parties,  he  must  have  failed  in  that  case,  for  the  two  notes  disagreeing 
there  could  be  no  valid  contract.  But  this  is  not  the  case  of  a  contract 
entered  into  by  a  broker  for  buyer  and  seller.  Wilks  was  indeed  a 
broker,  but  he  acted  solely  for  the  plaintiff.  The  plaintiff  then  insisted 
that  the  note  signed  by  the  defendant  is  the  contract,  and  the  declara- 
tion ao-rees  with  it ;  and  if  it  be  true  that  this  was  intended  by  both 
parties  to  be  the  contract  between  them,  the  defendant  would  be  bound 
as  the  party  to  be  charged,  and  the  memorandum  would  be  sufficient 
within  the  Statute  of  Frauds.  But  if  Campbell  the  defendant  never 
intended  to  be  bound  as  seller  unless  Moore  was  also  bound  as  buyer, 

1  10  A.  &E.  57. 


SECT.    VI.]  MOORE    V.    CAMPBELL.  471 

and  meant  that  Moore  should  sign  a  note  on  his  part  so  as  to  bind  him, 
then  there  has  been  no  valid  contract  between  them.  "We  cannot  as- 
certain this  point  ourselves,  and  therefore  there  must  be  a  new  trial. 

Some  other  questions  are  to  be  considered,  which  may  be  material 
on  the  new  trial. 

An  objection  was  taken  to  the  ruling  of  my  brother  Piatt  as  to  the 
rejection  of  evidence  of  the  usage  of  trade  as  to  delivery  orders  where 
goods  are  warehoused.  The  defendant  tendered  in  evidence  delivery 
orders  for  "  about  fifty  tons,"  and  also  ofic-red  to  prove  that  by  the 
usage  of  trade  in  Liverpool  such  delivery  orders  were  in  the  usual  foi-ra 
when  goods  were  warehoused  in  bulk.  My  brother  Piatt  refused  to 
allow  a  question  to  that  effect  to  be  put. 

If  this  question  had  been  asked  with  reference  to  a  purchase  of  fifty 
tons  of  goods  contracted  to  be  sold  and  delivered  simj^ly  and  not  from 
a  warehouse,  doubtless  it  could  not  be  permitted  to  give  evidence  that 
in  usage  of  trade  a  transfer  or  delivery  note  authorizing  the  purchaser 
to  receive  "  about  fifty  tons  "  would  be  sufficient. 

But  if  there  is  a  contract  to  sell  and  deliver  goods  in  a  warehouse, 
as  the  keepers  of  warehouses  in  that  place  have  a  known  usage  not  to 
accej^t  delivery  orders,  or  transfer  notes  as  they  are  called,  except  in  this 
form,  having  an  objection  to  make  themselves  responsible  for  any  par- 
ticular quantity,  the  delivery  of  such  an  order  or  transfer  note  may  be 
sufficient  performance  of  the  contract  to  deliver  in  some  circumstances. 
For  instance,  in  the  simple  case  of  the  contract  being  to  sell  a  quan- 
tity of  goods  now  warehoused  in  a  given  warehouse  as  being  "  about 
fifty  tons,"  or  in  the  more  complicated  case  of  a  sale  of "  fifty  tons 
weighed  by  landing  scales  and  now  warehoused,"  such  a  form  of  order 
would  be  sufficient,  couplfed  with  proof  that  the  goods  warehoused  were 
actually  of  that  weight  at  the  landing  scales,  and  it  being  shewn  that 
the  particular  order  referred  to  the  identical  goods  so  weighed. 

Another  question  raised  by  Mr.  Hill  was  as  to  the  effiict  of  the  al- 
teration by  parol  of  the  written  contract  to  deliver  the  goods  on  the 
quay  to  be  weighed  by  the  landing  scales,  and  substitute  a  delivery 
from  the  warehouse.  He  contended  that  this  operated  as  a  new  con- 
tract embodying  all  the  terms  of  the  old  one  except  the  delivery  on 
the  quay  by  landing  weight,  and  that  such  new  contract  was  necessarily 
a  waiver  or  discharge  of  the  old  one,  and  being  made  before  the  breach 
of  the  old  contract  the  fourth  plea  was  supported.  That  plea  was, 
"that,  after  the  making  of  the  agreement  and  before  breach,  the  agree- 
ment was  mutually  rescinded  by  the  plaintiff  and  defendant."  We  do 
not  think  that  this  plea  was  proved  by  this  evidence.  The  i)artie8 
never  meant  to  rescind  the  old  agreement  absolutely,  which  this  jdea, 
we  think,  imports.  If  a  new  valid  agreement  substituted  for  the  old 
one  before  breach  would  have  supported  the  plea,  we  need  not  inquire, 
for  the  agreement  was  void,  there  being  neither  note  in  writing  nor 


472  SARL   V.   BOURDILLON.  [CHAP.    I. 

part  jjayment,  nor  delivery  nor  acceptance  of  part  or  all.      This  was 
decided  by  the  cases  of  Stead  v.  Dawber  ^  and  Marshall  v.  Lynn.^ 

A  further  question  may  arise  on  the  new  trial,  considering  the  old 
contract  to  be  still  in  force  in  all  its  parts,  which  must  be  done  ;  for  in- 
stance, whether  the  plaintiff  on  his  part  declared  his  option  and  was 
ready  to  give  his  acceptance  in  due  time.  The  delivery  from  the 
warehouse  instead  of  the  quay  not  being  authorized  by  the  old  contract, 
the  only  one  in  force,  the  sufficiency  of  the  delivery  or  transfer  order 
cannot  now  be  a  question.  If  the  jilaintiff  had  already  accepted  and 
received  the  goods  in  the  warehouse,  or  even  the  delivery  or  transfer 
order  in  the  form  offered,  as  a  jierformance  of  the  contract  on  the  de- 
fendant's part,  there  would  have  been  a  good  answer  by  way  of  accord 
and  satisfaction ;  biit  no  such  question  arises  in  this  case. 

Hule  absolute  for  a  new  trial. 


SARL  AND   Others  v.   BOURDILLON. 
In  the  Common  Pleas,  November  17,  1856. 

\B.e'ported  in  26  Law  Journal  Reports,  Common  Pleas,  78.] 

This  was  an  action  for  goods  bargained  and  sold.  Plea,  never  in- 
debted. 

At  the  trial  before  Willes,  J.,  at  the  Middlesex  sittings  after  last 
Easter  term,  it  appeared  that  the  plaintiffs  were  silversmiths,  and  that 
the  defendant  called  at  their  shop  and  chose  certain  articles.  The 
articles  chosen  were  entered  in  the  plaintiffs'  order-book,  with  the 
prices  to  be  paid  for  each,  amounting  together  to  £29  15s.;  and  among 
the  other  entries  there  was  this  one :  "  Two  chamber  candlesticks 
complete  at  225.  each,  — £2  4s."  It  was  agreed  that  each  of  the  candle- 
sticks so  entered  should  be  fitted  up  with  a  gallery  to  carry  a  glass 
shade ;  and  the  defendant,  on  being  asked  how  he  proposed  to  pay  for 
the  goods,  said  he  would  in  a  few  days  give  a  cheque  on  his  brother,  a 
stockbroker  in  Throgmorton  Street.  The  defendant  then  wrote  his 
name  and  address,  "  Capt.  Bourdillon,  29  Inverness  Terrace,  Bays- 
water,"  and  his  brother's  address,  14  Throgmorton  Street,  in  the 
order-book,  before  the  list  of  articles.  This  book  has  the  words 
"  order-book  "  on  the  cover,  and  the  names  of  the  plaintiffs  on  the  fly- 
leaf; all  of  which  the  defendant  had  an  oj^portunity  of  seeing,  if  he 
chose. 

1  10  A.  &  E.  57.  2  6  M.  &  W.  109. 


SECT.    VI.]  SARL   V.   BOURDILLON.  473 

The  counsel  for  the  defendant  did  not  address  the  jury;  but  he 
objected  that  there  was  no  evidence  to  go  to  them,  as  there  was  no 
sufficient  memorandum  of  tlie  contract  in  writing  under  the  17th 
section  of  the  Statute  of  Frauds,  and  the  names  of  the  vendors  did  not 
appear  in  the  memorandum,  nor  the  mode  of  paj-ment  by  cheque 
agreed  on,  nor  the  agreement  as  to  altering  the  gallerios. 

The  learned  judge  overruled  the  objection,  and  the  plaintifts  had  a 
verdict  for  the  amount  of  their  claim,  leave  being  reserved  to  the 
defendant  to  move  to  set  aside  the  verdict  and  enter  a  nonsuit. 

A  rule  nisi  having  been  obtained  accordingly, 

Hatckins  and  Bennet  (June  9)  shewed  cause.  The  entry  by  the 
defendant  of  his  name  in  the  plaintifts'  order-book  was  a  sufficient 
signature  under  the  Statute  of  Frauds  ;  for  it  is  not  necessary  that  the 
signature  should  be  in  any  particular  j)art  of  the  memorandum.  That 
is  the  signature  of  the  party  sought  to  be  charged  ;  and  the  entry  and 
list  of  articles  will  make  a  good  contract,  if  the  name  of  the  seller  in 
writing  can  be  connected  with  it.  It  is  submitted  that  the  names  of 
the  plaintiffs  on  the  title-page  of  the  order-book  are  sufficient  for  that 
purpose.  Allen  v.  Bennet.^  In  the  next  place,  as  to  the  agreement  for 
payment  by  cheque  not  appearing  on  the  face  of  the  writing. 

[Jervis,  C.  J.     We  think  there  is  nothing  in  that  point.] 

As  to  the  ao-reement  for  the  alteration  of  the  candlesticks,. the  first 
answer  is  that  the  contract  is  divisible,  there  being  a  separate  price 
fixed  on  for  each  article.  Therefore  the  plaintifts  may,  if  necessary, 
reject  the  item  of  £2  4s.,  and  keep  their  verdict  for  the  rest  of  the  bill. 

[Cresswell,  J.  Is  there  any  case  like  this,  where  there  has  been  a 
memorandum  signed  as  to  part  of  the  goods  referred  to  in  a  contract? 
In  Baldey  v.  Parker,^  where  the  defendant  went  to  a  linen-draper's 
and  contracted  for  the  purchase  of  various  articles  at  certain  prices, 
the  price  of  each  article  being  less  than  £10,  but  the  aggregate  amount 
above  £10,  and  the  defendant  required  an  account  of  the  whole  to  be 
sent  to  him,  it  was  held  that  there  was  but  one  contract,  and  that  the 
case  was  tlierefore  within  the  17th  section  of  the  Statute  of  Frauds.] 

But  there,  there  was  no  memorandum  at  all  to  satisfy  the  statute. 
The  alteration  in  this  case  was  not  a  thing  which  it  was  material  to 
advert  to  in  the  written  memorandum.  The  candlesticks  were  to  be 
complete  according  to  the  understanding  between  the  parties.  In 
Hoadly  v.  Maclaine,''  where  there  was  a  written  memorandum  of  a 
contract  for  goods  to  be  manufactured,  it  was  held  that  additions  and 
alterations  made  in  the  progress  of  the  work  need  not  be  made  the 
subject  of  a  distinct  contract  in  writing. 

Byles,  Serjt.,  and  Karslake,  in  sujtport  of  the  rule.  Baldey  v. 
Parker  and  Scott  v.  The  Eastern  Counties  Railway  Company  *  shew 

1  3  Taunt.  169.  2  2  B.  &  C  37.  ^  i  Mo.  &  S.  340. 

4  12  Mee.  &  W.  33 ;  s.  c.  13  Law  J.  Rep.  (n.  s.)  Exch.  U. 


474  SARL   V.    BOURDILLON.  [CHAP.    I. 

that  this  was  an  entire  contract,  and  that  it  cannot  be  divided.  The 
agreement  to  alter  the  candlesticks  was  part  of  the  original  agreement, 
and  ought  therefore  to  have  appeared  in  the  memorandum  in  writing ; 
and  proof  of  the  verbal  contract  is  admissible,  in  order  to  shew  that 
the  whole  contract  was  not  put  into  writing.  Kenworthy  v.  Scho- 
field  ^  and  Elmore  v.  Kingscote.^  Hoadly  v.  Maclaine  differs  from  the 
present  case,  because  there  there  was  an  original  order  sufficient  to 
satisfy  the  statute,  and  the  alterations  were  agreed  upon  afterwards. 
It  does  not  appear  that  the  defendant  saw  the  name  of  the  sellers  in 
the  order-book. 

[Cresswell,  J.  He  would  have  had  a  right  to  see  their  names 
before  he  wrote  his  own  in  the  book.] 

Lastly,  the  payment  by  cheque  on  the  defendant's  brother  was  a 
particular  mode  of  payment,  which  ought  to  have  been  mentioned  in 
the  agreement. 

[Cresswell,  J.  Can  it  be  said  that  the  plaintiffs  bind  themselves 
to  give  up  the  goods  on  receiving  a  cheque  on  the  defendant's 
brother  ?] 

[Jervis,  C.  J.  We  shall  consider  the  principal  point.  As  to  the 
last  point,  the  mode  of  payment,  the  evidence  shewed  that  that  was 
proposed  in  answer  to  an  application  of  the  plaintiffs  for  a  reference, 
and  was  not  intended  to  be  part  of  the  contract.  We  think  also  that 
the  Statute  of  Frauds  was  satisfied  as  regards  the  names  of  the 
vendors  and  the  vendees  appearing  in  writing ;  for  the  defendant  was 
entitled  to  look  at  the  book,  and  see  that  the  names  of  "  Sari  &  Sons  " 
were  entered  as  the  vendors.     The  other  point  we  shall  consider.] 

Cur.  adv.  vult. 

Cresswell,  J.,  now  delivered  the  judgment  of  the  court. 

In  this  case,  inasmuch  as  the  defendant  declined  to  go  to  the  jury, 
and  insisted  that  there  was  no  evidence  of  a  memorandum  to  satisfy  the 
Statute  of  Frauds,  it  may  be  assumed  that  the  defendant  wrote  his 
name  in  the  plaintiffs'  book,  intending  it  as  a  signature  to  an  order  to 
the  plaintiffs,  whose  order-book  it  was,  and  whose  name  Avas  written 
in  the  beginning  of  it  in  the  usual  way.  This,  with  the  observations 
made  in  the  course  of  the  argument,  disposes  of  all  the  objections 
raised,  except  that  relating  to  the  description  of  the  candlestick,  which 
was  one  of  the  articles  ordered.  It  was  thus  described,  —  "candle- 
stick complete  ; "  and  it  was  insisted  for  the  defendant  that,  because 
at  the  time  of  giving  the  order  it  was  arranged  that  the  candlestick 
to  be  suppUed  should  be  furnished  with  a  gallery  to  carry  a  glass 
shade,  therefore  the  addition  of  the  shade  formed  a  part  of  the  bar- 
gain, and  ought  to  have  been  stated  in  the  memorandum.  Upon 
consideration  we  do  not  feel  obliged  to  yield  to  this  argument.  The 
1  2  B.  &  C.  945.  2  5  ij^id,  583. 


SECT.    VI.]  •  MEWS   V.   CARR.  475 

memorandum  states  all  that  was  to  be  clone  by  the  person  charged, 
viz.,  the  defendant ;  and  according  to  the  case  of  Egoiton  v.  Mathews  ^ 
that  is  sufficient  to  satisfy  the  17th  section  of  the  Statute  of  Frauds, 
though  not  to  make  a  valid  agreement  in  cases  within  the  4th  section. 
Moreover  the  difficulty  which  may  arise  as  to  the  sufficiency  of  the 
precise  candlestick  supplied  to  fultil  the  contract  is  not  greater  than 
that  of  identity,  which  even  in  an  agreement  under  the  4th  section 
may  be  left  to  parol  evidence.  So  in  Spicer  v.  Cooper  -  it  was  held 
that  "  sold  fourteen  pockets  of  Kent  hops  at  100s."  might  be  explained 
to  mean  100s.  per  cwt. ;  and  it  was  not  even  argued  that  the  a])parent 
ambiguity  as  to  the  price,  caused  by  the  omission  of  any  statement  of 
the  quantity  for  which  the  lOOs.  was  to  be  paid,  rendered  the  note  or 
memorandum  insufficient  to  satisfy  the  17th  section.  The  rule  must 
therefore  be  discharged.  Hide  discharged. 


MEWS  V.   CARR. 

In  the  Exchequer,  November  20,  1856. 

[Reported  in  1  Hiirlstone  Sf  Norman,  484.] 

The  declaration  stated  that  the  plaintiff  put  up  for  sale  by  public 
auction  in  lots  a  large  quantity  of  timber  of  a  certain  descri})tion,  etc., 
under  and  subject  to  the  following  conditions  of  sale.  (The  declara- 
tion set  out  the  conditions,  of  which  the  following  only  are  material)  : 
first,  that  the  highest  bidder  should  be  deemed  the  purchaser,  &c. ; 
fourthly,  that  the  goods  should  be  paid  for  and  cleared  away  within 
twenty-eight  days  from  tlie  day  of  sale  ;  sixthly,  that  in  default  of 
compliance  with  the  above  conditions  the  deposit  money  received  shall 
be  forfeited,  and  the  purchasers  shall  be  liable  for  all  loss,  charges, 
interest  of  money,  or  any  expenses  whatever  attendant  on  a  re-salie 
eitlier  by  private  contractor  public  auction.  Averments:  that  on  the 
said  exposure  to  sale  of  the  said  timber  the  defendant  became  the 
highest  bidder  for  and  the  purchaser  of  (to  wit)  two  lots  of  the  same 
on  the  conditions  aforesaid,  at  and  for  a  certain  sum  (to  wit)  of 
£183  6s.,  and  he  agreed  with  the  plaintiff  to  become  the  purchaser 
thereof  on  the  said  conditions  and  at  and  for  the  said  price,  and  to 
comply  with  the  said  conditions,  and  the  plaintiff  acce})ted  him  as 
such  purchaser;  and  although  the  plaintiff  has  at  all  times  been  ready 
and  willing  to  do  and  perform  and  has  done  and  performed  all  things 

i  6  East,  307.         2  1  Q.  B.  Rep.  424 ;  s.  c.  10  L.  J.  Rep.  (x.  s.)  Q.  B.  241. 


476  MEWS   V.    CARR.  ♦  [CHAP.    I. 

and  all  things  have  happened  to  entitle  him  to  a  performance  by  the 
defendant  of  the  said  conditions  of  sale  and  his  said  agi'eement,  and 
although  the  defendant  according  to  the  said  conditions  of  sale  and  his 
said  agreement  ought  to  have  paid  for  and  cleared  away  the  said  lots 
within  twenty-eight  days  from  the  day  of  sale,  yet  the  defendant  did 
not  nor  would  at  any  time  within  the  said  space  of  twenty-eight  days 
from  the  day  of  sale  pay  for  or  clear  away  the  said  lots  or  any  part 
thereof;  and  thereupon,  in  accordance  with  the  said  conditions  of  sale 
and  after  the  expiration  of  the  said  period  of  twenty-eight  days  from 
the  day  of  sale,  and  in  a  reasonable  time  in  that  behalf,  the  plaintiff 
did  re-sell  the  said  lots  by  public  auction  at  and  for  a  less  sum  than  the 
amount  so  to  have  been  paid  for  the  same  by  the  defendant  as  afore- 
said, to  wit,  at  a  loss  of  £20  ;  and  the  plaintiff  was  put  to  and  incurred 
great  expense,  to  wit,  a  further  sum  of  £20,  for  and  in  respect  of  divers 
charges  and  expenses  attendant  on  such  re-sale,  &c. :  of  all  which 
premises  the  defendant  afterwards  and  before  the  commencement  of 
this  suit  had  notice,  and  was  then  requested  by  the  plaintiff  to  pay  him 
the  said  several  sums ;  but  the  defendant  has  hitherto  wholly  neglected 
and  refused  so  to  do. 

Plea.  That  the  defendant  did  not  become  the  highest  bidder  for 
and  the  jDurchaser  of  the  said  two  lots  on  the  said  conditions,  nor  did 
he  agree  to  become  the  purchaser  thereof  on  the  said  conditions  at  and 
for  the  said  price  and  to  comj^ly  with  the  said  conditions ;  nor  did  the 
plaintiff  accept  him  as  such  purchaser  as  alleged. 
Replication,  taking  issue  on  the  plea. 

At  the  trial  before  Pollock,  C.  B.,  at  the  last  Surrey  assizes,  it  appeared 
that  on  the  26th  of  October,  1856,  one  Churchill  on  behalf  of  the  plain- 
tiff put  up  for  sale  by  auction  several  lots  of  timber  under  the  conditions 
of  sale  mentioned  in  the  declaration.     All  the  lots  were  not  sold  ;  and 
on  the  following  day  the  defendant  called  at  the  office  of  Churchill  and 
inquired  what  lots  remained  unsold.     Churchill  thereupon  shewed  him 
a  catalogue,  and  he  selected  two  lots,  which  he  agreed  to  purchase. 
Churchill  then  wrote  the  defendant's  name  in  the  catalogue  opposite 
these  lots.     Two  or  three  days  after  the  defendant  again  called  and 
requested  to  know  what  further  lots  remained  on  hand.    The  catalogue 
was  shewn  to  him,  and  he  selected  two  other  lots ;  and  on  being  informed 
the  terms  he  said  he  should  consider  whether  he  would  become  the  pur- 
chaser of  them.    About  the  9tli  November  he  again  called,  and  on  this 
occasion  he  agreed  to  purchase  these  two  lots.    Churchill  then  wrote  in 
the  defendant's  presence  his  name  in  the  catalogue  opposite  these  lots, 
and  also  the  agreed  price,  £10  10s.  per  standard.     The  defendant  then 
stated  that  as  the  prompt  day  fixed  by  the  conditions  of  sale  at  twenty- 
eight  days  after  the  day  of  sale,  viz.,  on  the  23d  November,  was  so 
near,  he  could  not  pay  for  the  lots  then ;  and  it  was  agreed  that  the 
twenty-eight  days  should  be  calculated  from  the  9th  November.     Evi- 


SECT.    VI.]  MEWS   V.    CARR.  477 

dence  was  adduced  to  sliew  that  by  the  custom  of  the  trade  persons 
who  purchased  lots  from  those  remaining  unsold  at  an  auction  were 
always  considered  as  bound  by  the  conditions  of  sale,  the  same  as  if 
they  had  purchased  at  the  auction. 

It  was  objected  on  behalf  of  the  defendant,  first,  that  Churchill 
was  not  the  agent  of  the  defendant  so  as  to  bind  him  by  his  signature, 
and  conseciuently  there  was  no  contract  in  writing  as  required  by  the 
17th  section  of  the  Statute  of  Frauds ;  secondly,  that  this,  being  a  sale 
by  private  contract,  was  not  subject  to  the  conditions  mentioned  in  the 
declaration.  The  learned  judge  directed  a  verdict  for  the  plaintiff, 
reserving  leave  to  the  defendant  to  move  to  enter  a  verdict  for  him. 

Hawkins    in   the   present   term  obtained   a  rule  nisi    accordingly, 

against  wdiich  • 

Montagu  Chambers  and  Matheic  now  shewed  cause.  The  auc- 
tioneer was  the  agent  of  the  defendant,  and  the  sale  was  on  the  con- 
ditions stated  in  the  catalogue.  [Polt.ock,  C.  B.  The  cases  have 
established  that  the  auctioneer  is  the  agent  of  both  parties  at  the  time 
of  the  sale ;  but  a  traveller  going  about  to  collect  orders,  who  writes 
the  names  of  those  who  give  orders  in  his  order-book,  does  not  bind 
them  as  buyers.]  Bird  v.  Boulter  ^  decided  that  an  auctioneer's  clerk, 
who  is  present  at  a  sale,  is  the  agent  of  the  persons  to  whom  the  lots 
are  knocked  down,  so  as  to  bind  them  by  his  entry  in  the  sale-book. 
In  (iraham  v.  Musson  -  the  plaintiff's  traveller,  having  received  from 
the  defendant  an  order  for  goods,  made  and  signed  in  his  own  name  an 
entry  of  the  contract  in  a  book  of  the  defendant,  and  that  was  held 
not  a  sufficient  memorandum  within  the  Statute  of  Frauds ;  but  the 
court  there  say  that,  if  the  traveller  had  signed  the  defendant's  name, 
and  he  had  not  dissented  from  it,  the  case  would  have  resembled  Bird 
V.  Boulter.  Here  the  broker  signed  the  name  of  the  defendant  in  his 
presence. 

IlaicJcins  appeared  to  support  the  rule,  but  was  not  called  upon. 

Pollock,  C.  B.  The  rule  must  be  absolute.  The  sale  in  question 
took  place  some  days  after  the  auction  was  over;  and  therefore,  as 
regards  the  Statute  of  Frauds,  the  case  must  be  determined  as  any 
other  ordinary  sale.  The  parties  cannot  set  up  a  custom  of  trade  to 
repeal  the  Statute  of  Frauds.  No  doubt  an  auctioneer  at  the  sale  is 
agent  for  both  seller  and  buyer,  so  as  to  bind  them  by  his  signature ; 
but  the  moment  the  sale  is  over,  the  same  principle  does  not  apj>ly,  and 
the  auctioneer  is  no  longer  the  agent  of  both  parties,  but  of  the  seller 
only ;  and  the  signature  of  the  seller  or  his  agent  cannot  bind  the 
buyer.  The  question  is,  Avhether  there  is  any  evidence  to  take  the 
case  out  of  the  Statute  of  Frauds ;  and  I  think  that  there  is  none. 

Aldersox,  B.     I  am  of  the  same  opinion. 

Bkasiavell,  B.     The  only  reason  why  I  make  any  remark  is,  that 
1  4  B.  &  Adol.  443.  ^  5  Bing.  N.  C.  603. 


478  GOODMAN   V.    GRIFFITHS.  [CHAP.   I. 

the  observations  of  the  court  in  Graham  v.  Musson  ^  may  not  be  mis- 
understood. There  the  court  said  that,  if  tlie  traveller  had  signed  the 
defendant's  name,  and  he  had  not  expressed  any  dissent,  that  would 
have  been  a  recognition  of  agency.  Here  the  auctioneer  signed  the 
defendant's  name,  not  purporting  to  act  for  him,  but  as  the  person  who 
sold  the  goods.  It  is  now  established  that  an  auctioneer  at  the  time 
of  the  sale  is  agent  for  both  buyer  and  seller ;  but  as  soon  as  the  sale 
is  over  the  reason  for  the  rule  fails,  and  he  is  certainly  not  the  agent 
of  the  buyer  unless  he  has  some  authority  to  act  on  his  part. 

WATSojf,  B,,  concurred.  Mule  absolute. 


GOOD^fAN  V.  GRIFFITHS. 
In  the  Exchequer,  January  22,  1857. 

[Reported  in  1  Huiistone  Sj-  Norman,  674.] 

AcTiox  for  not  accepting  goods.  Plea  (inter  alia),  that  the  plaintiff 
did  not  agree  as  alleged.     Whereupon  issue  was  joined. 

At  the  trial  before  Martin,  B.,  at  the  Middlesex  sittings  after  last 
Michaelmas  term,  the  plaintiff,  a  patentee  of  mechanical  binders,  proved 
that  he  called  on  the  defendant  for  an  order,  shewing  him  at  the  same 
time  a  printed  list  of  the  different  sizes  with  the  price  of  each  annexed. 
The  plaintiff  wrote  down  the  following  order,  which  was  then  signed 
by  the  defendant,  and  handed  by  him  to  the  plaintiff:  — 

June  9,  1855. 
Mr.  Goodman, 

Please  put  in  hand  for  my  account  the  following :  — 

4  ]\Iechanical  binders No.  1. 

3  Doz.         ditto               „     2. 

6  Mechanical  binders ».     3. 

2  Doz.        ditto                ,,14. 

1  Doz.  Mechanical  binders ,,5. 

1  Single      ditto                ,,17. 

With  two  extra  cases  to  each  instrument. 

GiiTFF.  Griffiths. 

The  numbers  referred  to  the  printed  list.  The  words  "  the  price  as 
per  note  "  had  originally  been  written  at  the  foot  of  the  order  by  the 
plaintiff,  but  were  struck  out  by  the  defendant,  the  agreement  being  in 
fact  that  the  plaintiff  should  take,  off  25  per  cent,  discount  from  the 
prices  marked  on  the  printed  list.     On  the  16th  of  July  the  defendant 

1  5  Bing.  N.  C.  603. 


SECT.    VI.]  GOODMAN   V.    GRIFFITHS.  479 

wrote  to  the  plaintiff  a  letter  as  fcjllows :  "  Mr.  Griffiths'  compliments  . 
to  Mr.  Goodman,  and  wishes  him  to  forward  the  invoice  of  the  goods, 
and  also  the  size  of  the  package,  &c. ;  if  not  too  large,  Mr.  Griffiths 
will  take  them  in  his  cabin,  and  may  thereby  have  an  opi)ortunity  of 
submitting  them  to  his  fellow-passengers,  and  pc'rha])s  selling  some  of 
them.  The  goods  themselves  do  not  send  until  he  writes  again."  On 
the  same  day  the  plaintiff  sent  the  invoice  with  the  prices  as  on  the 
list,  and  the  discount  taken  off  according  to  the  agi-eement.  On  the 
20th  of  July  the  plaintiff  received  the  following  letter  from  the  defend- 
ant returning  the  invoice :  "  I  am  very  sorry  that  I  must  decline  taking 
the  goods  as  per  invoice  returned,  in  consequence  of  having  received 
very  unfavorable  intelligence  by  the  last  mail,  &c.  Yours,  &c.  G. 
Griffiths." 

The  defendant's  counsel  objected  that  there  was  no  sufficient  memo- 
randum of  the  bargain  to  satisfy  the  17th  section  of  the  Statute  of 
Frauds,  and  the  plaintiff  was  nonsuited. 

Collier  moved  to  set  aside  the  nonsuit  (.January  IG).  The  order  of 
the  9th  of  June  refers  to  the  printed  list  of  prices,  and  may  be  read  in 
connection  with  it.  There  was  an  additional  term,  viz.,  that  25  per 
cent,  discount  should  be  taken  off.  [Bramwell,  B.  That  may  be 
proved;  though  not  in  writing,  for  the  purpose  of  defeating  the  effect  of 
a  memorandum  of  agreement  duly  signed  according  to  the  17th  section, 
and  therefore  cfood  on  the  face  of  it.  Acebal  v.  Levy.H  All  the  docu- 
ments  must  be  read  together,  and  the  imperfections  of  the  original  mem- 
orandum may  be  made  good  by  the  subsequent  letters  referring  to  it. 
Warner  v.  Willington,-  Saunderson  v.  Jackson,^  Allen  v.  Bennet.*  The 
plaintiff  in  the  invoice  states  the  terms  of  the  contract,  and  the  defend- 
ant in  his  answer  sufficiently  recognizes  them,  and  admits  that  the  con- 
tract is  correctly  stated.  The  defendant  does  not  deny  his  Jiability  to 
take  the  goods,  as  was  the  case  in  Archer  v.  Baynes.^ 

Cur.  adv.  vult. 

Maetin,  B.,  now  said :  The  declaration  stated  an  agreement  by  the 
defendant  to  purchase  a  number  of  mechanical  binders.  The  ])laintiff 
took  a  printed  list  of  his  goods  with  the  prices  annexed,  and  put  it 
into  the  hands  of  the  defendant ;  the  defendant  bargained  for  these 
articles  and  agreed  for  a  discount ;  he  then  signed  an  order  which  did 
not  mention  the  terms  as  to  the  discount.  The  plaintiff  having  manu- 
factured the  goods  sent  in  an  invoice  with  the  prices  striking  off  the 
discount ;  the  defendant  wrote  an  answer  declining  to  take  the  goods, 
making  some  excuse  for  not  doing  so.  It  was  objected  that  this  was  a 
contract  for  the  sale  of  goods  above  the  value  of  £10,  and  that  as  there 
was  nothing  to  satisfy  the  17th  section  of  the  Statute  of  Frauds  the 

1  10  Bing.  376.  2  3  Drewry,  623.  »  2  Bos.  &  P.  238. 

*  3  Taunt.  169.  5  5  Exch.  625. 


480  BAILEY   V.    SWEETING.  [CHAP.    I. 

lilaintiif  could  not  succeed.  We  are  of  opinion  that  this  objection 
must  prevail.  The  bargain  was  for  a  price  25  per  cent,  less  than  that  on 
the  list.  The  order  signed  by  the  defendant  did  not  express  the  real 
contract,  and  it  does  not  ^^reclude  the  defendant  from  shewing  what 
the  contract  was.  It  is  not  sufficient  under  the  statute  because  it  does 
not  contain  the  price  agreed  on.  The  next  question  is,  Whether  what 
took  place  with  respect  to  the  invoice  cured  this  defect  ?  The  invoice 
is  the  statement  of  the  plaintiif.  If  the  letter  returning  it  had  con- 
tained an  admission  that  it  stated  the  contract  con-ectly,  it  might  have 
been  sufficient ;  but  in  this  letter  the  defendant  merely  declines  to  take 
the  goods.     We  are  therefore  of  opinion  that  the  nonsuit  was  right. 

Mule  refused. 


BAILEY   AND   Another  v.   SWEETING. 
In  the  Common  Pleas,  January  12  and  17,  1861. 

[Reported  in  30  Law  Journal  Reports,  Common  Pleas,  150.] 

This  was  an  action  brought  to  recover  £76  14s.  ^d.  for  goods  bar- 
gained and  sold.  The  defendant  paid  into  court  £38  3s.  9(7.,  and 
pleaded  never  indebted  to  the  rest  of  the  claim.  The  cause  was  tried 
before  Erie,  C.  J.,  at  the  London  sittings  after  Easter  term,  1860.  The 
defendant,  a  furniture  dealer  at  Cheltenham,  being  at  the  j^laintiiFs' 
manufactory  in  London  in  July,  1859,  bought  of  the  plaintiffs  four  old 
gilt  chimney-glasses  at  £28  10s.,  and  a  walnut  chimney-glass  at  £6  6.s., 
to  be  paid  for  by  a  cheque  on  delivery ;  and  also  on  the  same  occasion 
bought  of  the  plaintiffs  various  other  articles  (some  of  which  were  not 
then  ready,  but  had  to  be  made)  on  certain  credit  terms.  The  chimney- 
glasses  formed  the  first  parcel  of  such  goods  which  were  sent  to  the 
defendant  at  Cheltenham.  The  carrier  however  to  whom  this  parcel 
was  delivered  so  damaged  it  during  its  carriage  that  the  defendant 
refused  to  receive  it  when  it  arrived,  and  the  plaintiffs  were  at  once 
informed  of  such  refusal.  The  other  goods  which  had  been  bought 
were  afterwards  sent  in  different  parcels  to  the  defendant,  and  were 
duly  received  by  him ;  and  it  was  admitted  at  the  trial  that  the  value 
of  these  was  covered  by  the  amount  Avhich  had  been  paid  into  court, 
and  the  only  question  was  as  to  the  defendant's  liability  in  respect  of 
the  first  parcel,  the  price  of  which,  with  the  cases  in  which  it  was 
packed,  amounted  to  £38  10s.  Qd.  With  reference  to  the  Statute  of 
Frauds,  the  plaintiffs  contended  that  the  sale  of  all  the  articles  had 
been   under   one  contract,  and  that  there  had  been  therefore  a  part 


SECT.    VI.]  BAILEY   V.    SWEETING.  481 

acceptance ;  and  they  also  relied  on  the  following  letter  from  tho 
defendant,  written  in  answer  to  one  from  the  plaintifls  applying  for 
payment,  as  a  memorandum  satisfying  the  statute  :  — 

Cheltenham,  December  3,  1859. 
Gentlemen,  — In  reply  to  your  letter  of  the  1st  instant,  I  beg  to  say  that  the 
only  parcel  of  goods  selected  for  ready  money  was  the  chimney-glasses,  amount- 
ing to  £38  \0s.  6d.,  which  goods  I  have  never  received,  and  have  long  since 
declined  to  have  for  reasons  made  known  to  you  at  the  time  ;  with  regard  to  the 
other  items,  viz.,  £11  4s.  dd.,  £14  13s.,  and  £13  13s.,  for  goods  had  subse<juently 
(less  cases  returned),  those  goods  are,  I  believe,  subject  to  the  usual  discount  of 
£.5  per  cent.,  and  I  am  quite  ready  to  remit  you  cash  for  these  parcels  at  once, 
and  on  receipt  of  your  reply  to  this  letter  will  instruct  a  friend  to  call  on  you 
and  settle  accordingly.  I  am  yours,  &c., 

Geo.  Sweeting. 

The  jury,  being  of  opinion  that  the  chimney-glasses  were  sold  under 
a  separate  contract  from  that  under  which  the  other  articles  were  sold, 
found  a  verdict  for  the  defendant ;  leave  being  i-eserved  to  the  plain- 
tiffs to  move  to  set  the  same  aside,  and  to  enter  a  verdict  for  them  for 
£38  10s.  Qd.,  if  the  court  should  be  of  opinion  that  the  defendant's 
letter  of  the  3d  of  December  was  sufficient  to  satisfy  the  Statute  of 
Frauds. 

In  Trinitv  terai  last  Hawkins  obtained  a  rule  nisi  accordinsjlv  to  set 
the  verdict  aside,  and  to  enter  it  for  the  plaintiffs  for  £38  10s.  6f7.  pur- 
suant to  the  leave  reserved,  or  for  a  new  trial  on  the  ground  of  the 
verdict  being  against  evidence. 

Henry  James  and  T.  E,  Chitty  now  shewed  cause.  "With  respect  to 
the  verdict  "being  against  the  evidence,  it  is  submitted  that  it  was  a 
proper  question  for  the  jury  whether  the  whole  formed  one  contract  or 
not,  and  they  rightly  found  that  there  were  two  transactions.  In  Scott 
V.  The  Eastern  Counties  Railway  Company  ^  it  was  not  denied  that  the 
goods  made  and  to  be  made  were  all  vmder  one  entire  agreement. 
[Keating,  J.,  referred  to  Bigg  v.  "Whisking.-] 

It  surely  cannot  be  held  as  a  matter  of  law  that  every  thing  which 
takes  place  on  one  occasion  with  reference  to  the  purcliase  of  different 
articles  must  be  considered  as  forming  one  contract.  In  Roots  v.  Dormer' 
a  distinct  contract  was  held  to  arise  in  respect  of  each  lot  which  is 
knocked  down  at  an  auction.  To  the  same  effect  is  Emmerson  v.  Heelis.* 
The  more  important  question  is,  whether  the  letter  of  the  defendant  is  a 
sufficient  memorandum  of  the  contract  within  the  meaning  of  the  17th 
section  of  the  Statute  of  Frauds.  That  letter  repudiates  the  contract. 
At  the  time  that  letter  was  A\Titten  there  was  no  contract  in  law  existinof 
between  the  parties ;  only  a  contract  in  fact,  and  the  letter  puts  an  end 
to  such  contract.    The  letter  under  those  circumstances  cannot  be  con- 

1  12  Mee.  &  W.  33 ;  s.  c.  13  Law  J.  Kep.  (x.  s.)  Excb.  14. 

2  14  Com.  B.  Rep.  195.  3  4  b.  &  Ad.  77.  *  2  Taunt.  38. 
VOL.   I.                                                              31 


482  BAILEY   V.    SWEETING.  [CHAP.  I. 

sidered  as  containing  an  admission  of  a  valid  or  existing  contract  so  as 
to  satisfy  the  statute.  The  subject  is  thus  discussed  by  Mr.  Justice 
Blackburn  in  his  work  on  Contracts  of  Sale  (p.  66)  :  "  It  sometimes  hap- 
pens that,  after  a  dispute  has  arisen,  a  party  in  a  letter  signed  by  him 
recapitulates  the  whole  terms  of  the  bargain  for  the  purpose  of  saying 
that  the  bai-gain  is  at  an  end,  for  some  reason  which  is  evidently  insuffi- 
cient in  law.  It  has  never  been  decided  whether  such  an  admission  of 
the  terms  of  the  bargain  signed  for  the  express  purpose  of  repudiation 
can  be  considered  a  memorandum  to  make  the  contract  good ;  but  it 
seems  difficult  on  principle  to  see  how  it  can  be  so  considered.  The 
parties  may  either  of  them  put  an  end  to  the  contract  at  any  time 
whilst  it  is  not  good,  with  cause  or  without  cause ;  and  a  memorandum 
of  the  terms  comes  too  late  to  make  a  contract  good  which  is  already 
put  an  end  to.  There  is  evidently  a  great  difference  between  a  writing 
which,  after  the  dispute  has  arisen,  mentions  the  terms  of  the  contract 
for  the  purpose  of  shewing  that  the  bargain  is  at  an  end,  and  one  which 
recognizes  them  as  still  subsisting.  I  know  only  of  three  cases  in 
which  this  point  could  have  been  decided ;  and  though  in  each  of  them 
the  memorandum  was  held  insufficient,  they  seem  to  have  been  decided 
on  special  grounds."  The  three  cases  there  referred  to  are  Cooper  v. 
Smith,^  Kichards  v.  Porter,^  and  Smith  v.  Surman.^ 

[Erle,  C.  J.  That  last  case  rather  makes  against  yon.  The  court 
considered  in  that  case  that  there  was  no  sufficient  note  in  writing 
of  the  contract,  because  the  two  letters  did  not  agree  as  to  the  terms 
of  the  contract;  the  defendant's  letter  adding  as  one  of  the  tenns 
a  condition  as  to  the  quality  of  the  goods.] 

Taylor  v.  Wakefield  *  is  an  instance  in  which,  where  a  parol  contract 
for  the  sale  of  goods  has  been  afterwards  disaffirmed  by  the  seller,  the 
taking  part  of  the  goods  by  the  buyer  has  not  been  a  sufficient  delivery 
and  acceptance  to  satisfy  the  statute. 

[WiLLES,  J.  Tliat  was  a  peculiar  case.  There  had  been  there  no 
acceptance  with  the  assent  of  the  vendor,  and  therefore  the  case  falls 
within  the  list  of  cases  in  which  there  had  been  no  acceptance.] 

Goode  V.  Job  ^  shews  that  an  admission  in  answer  to  a  bill  in  chan- 
cery may  be  a  sufficient  acknowledgment  to  take  the  case  out  of  the 
Statute  of  Limitations.  But  according  to  Rondeau  v.  Wyatt®  an 
admission  of  the  agreement  in  an  answer  to  a  bill  in  chancery,  in 
which  answer  the  defendant  relied  on  the  Statute  of  Frauds,  and 
averred  that  there  was  no  note,  was  held  not  to  prevent  the  defendant 
from  sustaining  an  objection  to  the  contract  being  void  for  want  of  a 
note  to    satisfy  the  statute.     The  case  of  Haughton  v.  Morton''  also 

1  15  East,  103.  2  6  B.  &  C.  437  ;  s.  c.  5  Law  J.  Rep  K.  B.  175. 

3  9  B.  &  C.  561 ;  s.  c.  7  Law  J.  Rep.  K.  B.  296.  *  6  E.  &  B.  765. 

5  28  Law  J.  Rep.  (n.  s.)  Q.  B,  1.  6  2  H.  Black.  63. 

7  5  Irish  Com.  Law  Rep.  (n.  s.)  329. 


SECT.    VI.]  BAILEY   V.    SWEETING.  483 

decides  that  a  letter  admitting  a  sale,  but  stating  it  to  be  subject  to 
certain  conditions,  is  not  a  sufficient  admission  of  the  contract  to  satisfy 
the  statute.  Moreover,  it  is  submitted  that  the  letter  was  too  late. 
It  ought  not  to  have  a  retrospective  effect.  Then  when  did  the  prop- 
erty in  the  goods  vest '?  for  until  there  was  a  contract  to  satisfy  the 
statute  no  ])roperty  could  vest.  In  the  notes  to  Birkmyr  v.  Darnell  ^ 
it  is  said  tliat  the  17th  section  of  the  act  "  avoids  contracts  not  made 
in  the  manner  there  prescribed."  — "  Also  it  is  observable  that  the 
written  memorandum  must  exist  before  action,  and  in  that  respect 
differs  from  mere  evidence."  —  "And  indeed  attending  to  the  distinc- 
tion pointed  out  by  the  Lord  Chancellor  Cottenham,  in  Dale  v.  Hamil- 
ton,- between  agreements  and  declarations  of  trust,  '  that  in  the  one  it  ' 
is  the  acrreement  itself  Avhich  is  the  origin  of  the  interest  that  must  be 
in  Aviiting ;  in  the  case  of  a  declaration  of  trust,  which  is  only  the 
recognition  of  a  pre-existing  interest,  it  is  the  evidence  and  recognition, 
and  not  the  origin  of  the  transaction,  that  must  be  in  writing,'  —  it 
may  be  found  difficult  to  imjiute  any  retroactive  effect  to  the  subse- 
quent written  memorandum  of  an  agreement  within  the  statute  not 
originally  reduced  into  writing."  They  also  cited  the  following  cases 
to  shew  that  the  terms  of  the  contract  could  not  be  sufficiently  col- 
lected from  the  letter:  Johnson  v.  Dodgson,^  Egerton  v.  Mathews,* 
Dobell  V.  Hutchinson,^  Jackson  v.  Lowe,®  Allen  v.  Bennet,''  Saunderson 
V.  Jackson,^  and  Powell  v.  Dillon.^ 

Saiokins  and  Kemplay^  in  support  of  the  rule.  With  reference  to 
the  first  point,  namely,  the  verdict  being  against  the  evidence,  the  cases 
which  have  been  referred  to  are  important,  as  shewing  that  orders  of 
this  kind  are  generally  considered  to  form  one  contract.  The  main 
question  however  is,  Avhether  the  defendant's  letter  is  not  a  sufficient 
memorandum  of  the  contract  within  the  meaning  of  the  Statute  of 
Frauds.  It  is  submitted  that  it  is  :  when  taken  in  connection  with  the 
letter  asking  for  payment,  to  which  it  is  an  answer,  it  must  mean  to 
admit  that  the  defendant  bought  of  the  plaintiffs  chimney-glasses  for 
ready  money  to  the  amount  of  £38  10s.  6f?.  Then  what  is  there  in 
that  which  is  wanting  to  make  it  a  good  memorandum  of  the  contract? 

[  WiLLiAiws,  J.  You  cannot  lay  down  absolutely  that  the  mere  recital 
of  a  contract  is  a  memorandum  to  satisfy  the  statute.] 

Here,  however  the  defendant  in  his  letter  does  not  repudiate  the 
bargain,  and  the  very  object  of  his  letter  is  to  inform  the  plaintiffs  what 
were  the  terms  of  the  contract.  It  comes  witliin  the  case  of  Jackson 
v.  Lowe.  The  only  authority  on  the  other  side  is  the  opinion  of 
Mr.  Justice  Blackburn. 

1  1  Smith's  Lead.  Cas.  (4th  ed.)  232,  233.  2  2  Phil.  266. 

3  2  Mee.  &  W.  653;  s.  c.  6  Law  J.  Rep.  (n.  s.)  Exch.  185.         ■«  6  East,  308. 
5  3  Ad.  &  E.  355;  s.  c.  4  Law  J.  Kep.  (n.  s.)  K.  B.  201.  "  1  Bing.  9. 

7  3  Taunt.  169.  8  2  Bos.  &  P.  238.  »  2  Ball  &  Beat.  416. 


484  BAILEY   V.    SWEETING.  [CHAP.   I. 

[Williams,  J.  When  do  you  say  the  property  passed  to  the  pur- 
chaser in  the  present  case  ?  Because  this  was  a  sale  of  specific  arti- 
cles.] 

It  might  have  passed  before  the  letter  was  written,  because  the 
statute  assumes  that  there  is  already  an  existing  bargain,  and  only 
requires  the  memorandum  as  evidence  of  the  contract. 

[Williams,  J.  But  there  must  be  a  good  contract  in  writing  before 
action  brought.] 

In  Fricker  v.  Tomlinson,^  Maule,  J.,  seems  to  think  that  an  accept- 
ance of  goods  after  action  brought  might  be  admissible  in  evidence  ; 
and  in  Thornton  v.  Kempster  -  the  court  said  the  Statute  of  Frauds 
'threw  a  difficulty  in  the  way  of  the  evidence,  and  that  the  objection 
did  not  interfere  with  the  substance  of  the  contract. 

[WiLLEs,  J.  If  so,  a  party  ought  to  be  able  to  prove  the  contract 
by  a  memorandum  written  and  signed  at  the  time  of  the  trial.] 

However,  the  defendant's  letter  is  in  fact  no  repudiation  of  the 
contract,  but  admitting  the  contract  merely  gives  his  reason  for  not 
accepting  the  goods.  In  Cooper  v.  Smith,  Richards  v.  Porter,  and 
Smith  V.  Surman,  the  parties  differed  as  to  the  terms  of  the  conti'act, 
and  therefore  there  was  no  memorandum  of  the  contract  to  satisfy 
the  statute.  Lastly,  it  is  submitted  that  the  memorandum  under  the 
statute  has  a  retrosj^ective  effect. 

Eele,  C.  J.  This  was  an  action  for  goods  bargained  and  sold, 
and  the  question  was  whether  there  had  been  a  sale.  The  defendant 
relies  on  the  Statute  of  Frauds,  and  says  that  there  was  no  note  or 
memorandum  to  satisfy  the  statute.  There  was  a  letter  however, 
written  by  the  defendant,  which  in  effect  says  this  to  the  plaintiffs : 
"I  made  a  bargain  with  you  for  the  purchase  of  chimney-glasses  at 
the  sum  of  £38  10s.  Qd.,  but  I  declined  to  have  them  because  the  car- 
rier broke  them."  Now  the  first  part  of  that  letter  is  unquestionably 
a  note  or  memorandum  of  the  bargain :  it  contains  the  price  and  all 
the  substance  of  the  contract ;  and  there  could  be  no  dispute  that,  if  it 
had  stopped  there,  it  would  have  been  a  good  memorandum  of  the 
contract  within  the  meaning  of  the  .statute.  I  think  that  what  had 
passed  in  the  first  instance  orally  between  the  parties  on  the  subject  of 
the  purchase  was  in  the  nature  of  an  inchoate  contract,  and  which, 
when  construed  with  the  letter  afterwards  written,  is  a  good  and  bind- 
ing contract.  Then  the  latter  part  of  the  letter  in  effect  says  that 
"  the  goods  to  which  the  contract  I  had  made  relates  were  refused  by 
me  because  the  carrier  broke  them  ; "  and  it  has  been  contended  by  the 
defendant  that  the  letter  is  not  a  memorandum  of  the  contract  within 
the  statute,  because  it  repudiates  the  bargain ;  and  the  defendant  has 
relied  on  the  passage  cited  from  Mr.  Justice  Blackburn's  book  on 
Contracts,  in  sujaport  of  the  proposition  that  the  acknowledgment  ot 
1  1  Man.  &  Gr.  772.  2  5  Taunt.  788. 


SECT.    VI.]  BAILEY   V.    SWEETING.  485 

the  bargain  is  not  Avithin  tlie  statute  if  it  is  accompanied  by  a  repu- 
diation of  it ;  and  reference  has  been  made  to  the  case  of  Rondeau  v. 
Wyatt  where  there  was  a  bill  of  discovery,  and  it  was  held  that  the 
answer  thereto  in  chancery  was  not  a  sufficient  memorandum  within 
the  Statute  of  Frauds.  Although  I  have  thus  adverted  to  these  author- 
ities, there  is  in  flict  no  decided  authority  on  the  ]joint,  and  we  are 
therefore  referred  back  to  the  original  Statute  of  Frauds ;  and  I,  for 
one,  am  of  opinion  that  the  letter  of  the  defendant  is  a  good  memo- 
randum of  the  bargain  within  the  meaning  of  that  statute.  The 
object  of  the  act  was  to  prevent  fraud  and  perjury.  That  is  sufficiently 
obviated  by  the  letter  in  question,  because  the  defendant  says  therein, 
"I  made  the  contract  for  the  goods."  The  goods  and  the  price  are- 
both  referred  to,  and  the  defendant  does  not  in  such  letter  rely  on 
the  Statute  of  Frauds  as  making  the  contract  invalid,  but  he  rests  his 
repudiation  on  the  ground  of  the  goods  having  been  broken.  That 
may,  I  think,  distinguish  the  present  case  from  cas(.'S  where  the  ]iarty 
admitting  the  contract  has  relied  on  the  statute  as  a  defence.  But  it 
there  be  no  such  distinction,  then,  with  every  respect  for  that  clear- 
headed and  learned  judge,  my  bi'other  Blackburn,  I  cannot  assent 
to  the  proposition  contained  in  his  work  on  Contracts  to  the  extent 
contended  foi*. 

Williams,  J.  I  am  of  the  same  opinion.  It  cannot  be  contro- 
verted that  in  point  of  fact  there  was  a  good  and  lawful  contract  for 
the  sale  of  the  goods,  the  price  of  which  is  sought  to  be  recovered. 
It  is  clear,  however,  that  as  the  price  is  greater  than  £10  the  contract, 
though  good,  would  not  be  actionable  unless  the  requisites  of  the 
Statute  of  Frauds  have  been  complied  with.  [His  Lordship  here 
read  the  17th  section  of  that  statute.]  The  effect  of  that  section  is 
that,  though  there  is  a  valid  verbal  contract,  it  is  not  actionable  unless 
something  of  several  things  has  happened,  one  of  which  is  the  exist- 
ence of  a  note  or  memorandum  in  writing  of  the  bargain  signed  by 
the  party  to  be  charged.  As  soon  as  that. occurs,  the  contract,  though 
not  previously  actionable,  becomes  actionable ;  and  the  question  there- 
fore is,  whether  in  the  present  case  there  exists  such  a  memoran<lum 
as  the  statute  refers  to.  It  appears  to  me  that  there  does.  The  letter 
of  the  defendant  refers  to  all  the  essential  terms  of  the  bargain  ;  and 
the  only  question  is,  whether  it  is  less  sufficient  because  it  is  accom- 
panied by  a  statement  that  the  defendant  does  not  consider  himself 
liable  for  the  loss  arising  from  the  defoult  of  the  carrier.-  I  do  not 
consider  that  it  is  so.  It  is  said  that  there  is  a  difficulty  in  main- 
taining such  a  doctrine  from  the  inconvenience  which  may  arise  from 
the  property  not  passing  until  the  contract  becomes  an  actionable  con- 
tract. That  may  be  so ;  but  the  same  objection  would  apply  to  the 
case  of  part  payment  or  part  acceptance,  and  no  one  doubts  that  the 
verbal  contract  might  be  set  up  where  these  have  afterwards  occurred. 


486  BAILEY   V.    SWEETING.  [CHAP.   I. 

I  agree  with  ray  Lord  in  thinking  that  the  reasons  given  in  my  brother 
Blackburn's  book  are  not  sufficient.  I  do  not  think  tliat  the  question 
whether  the  party  writing  the  letter  had  a  right  to  put  an  end  to  the 
contract  could  affect  the  question  whether  there  was  or  was  not  a  good 
contract.  The  intention  of  such  party  to  abandon  or  not  the  con- 
tract can  have  nothing  to  do  with  the  question  whether  there  is  a 
sufficient  memorandum  or  not  of  the  contract. 

WiLLES,  J.  I  am  of  the  same  opinion.  Assuming  there  to  be  a 
valid  contract,  the  defendant  would  be  bound  to  pay  for  these  goods ; 
and  not  having  done  so,  there  would  be  good  cause  of  action.  Now  at 
common  law  it  is  clear  there  Avould  exist  in  this  case  a  good  cause  of 
action ;  but  it  is  said  that  the  defendant  is  not  liable  by  reason  of  the 
Statute  of  Frauds.  I  think  however  that  the  defendant  is  liable,  and 
I  found  my  opinion  on  the  17th  section  of  that  statute.  It  appears 
that  there  is  no  authority  on  the  subject  in  fovor  of  either  party,  with 
the  exception  of  the  dictum  of  my  brother  Blackburn,  and  that  must 
be  taken  in  connection  with  the  statute  itself.  Now  it  is  necessary  to 
look  at  the  words  of  the  statute  :  they  are,  that  the  contract  shall  not 
be  good  unless,  amongst  other  things,  "  some  note  or  memorandum  in 
writing  of  the  said  bargain  be  made  and  signed  by  the  parties  to  be 
charged  by  such  contract."  It  follows  therefore  fi-om  these  words  that, 
if  there  be  any  note  or  memorandum  in  writing  of  the  bargain  signed 
by  the  party  to  be  charged,  the  contract  is  to  be  allowed  as  at  common 
law.  Then  is  there  in  the  present  case  a  memorandum  in  wi'iting  con- 
taining the  terms  of  the  bargain  ?  I  think  that  on  the  true  construc- 
tion of  the  defendant's  letter  of  the  3d  of  December  there  is  such  a 
memorandum  within  the  meaning  of  the  statute.  It  has  been  argued 
that  there  is  not,  because  the  statement  in  the  letter  is  accompanied 
by  a  repudiation  of  the  bargain ;  but  I  think  that  to  hold  that  such 
letter  is  not  on  that  account  a  note  or  memorandum  of  the  bargain 
would  be  to  disregard  the  word  "  some  "  in  the  statute.  There  is  here 
a  note  in  writing  of  the  bargain ;  and  the  statute  does  not  say  that 
where  there  is  such,  the  statute  is  not  to  be  satisfied  if  there  exist  also 
other  circumstances. 

Keatixg,  J.  There  is  no  doubt  a  valid  contract  for  the  goods  in 
question  if  it  be  sufficiently  evidenced  by  some  writing  in  order  to  sat- 
isfy the  statute.  There  is  such  evidence  here  of  the  contract  in  the 
defendant's  letter  up  to  a  particular  portion  of  it.  Then  does  it  cease 
to  be  evidence  because  the  defendant  goes  on  afterwards  in  the  letter 
to  say  that  he  ought  not  to  be  bound  by  it  ?  I  think  it  does  not,  and 
I  should  have  had  no  doubt  about  it  but  for  the  opinion  of  my  brother 
Blackburn  in  his  work  on  Contracts. 

Mule  absolute  to  enter  verdict  for  the  plaintiffs  for  £38  10s.  6c?. 


SECT.   YI.]  M'LEAN   V.    NICOLL.  487 

M'LEAN  V.  NICOLL. 
In  the  Exchequer,  June  11,  1861. 

[Reported  in  7  Jurist,  New  Series,  999.] 

This  was  an  action  for  goods  sold  and  delivered,  and  for  goods  bar- 
gained and  sold,  and  for  the  hire  of  goods  by  the  plaintiff  let  to  hire 
to  the  defendant,  and  on  an"  account  stated.  Plea,  never  indebted. 
The  cause  was  tried  at  Gnildliall  at  the  sittings  during  Hilary  term, 
1861,  before  Braniwell,  B.  It  appeared  that  the  i)laintiff  was  a  look- 
in  ir-dass  manufacturer,  and  that  on  the  18th  December,  1860,  the 
defendant  called  at  his  shop  and  ordered  the  goods  mentioned  in  the 
invoice  below.  He  desired  that  tlie  goods  might  V)e  sent  to  Jersey  to 
be  delivered  there,  and  it  was  agreed  that  the  glass  should  be  ]ilate- 
glass  of  the  best  quality,  and  that  the  plaintiff  should  insure  it  irum 
breakage.     The  plaintiff  on  shipping  the  goods  sent  the  defendant  tlie 

following  invoice :  — 

January  8,  1861. 
Mr.  Nicoll 

Bought  of  Charles  M'Lean,  78  Fleet  Street,  and  144  Oxford  Street. 
1861,  Jan.  7.     Two  compo  chimney-glasses,  gilt, 

70  X  oO  and  GO  X  50,  stock £22  Os.  Od. 

„     Insurance  of  glass  from  breakage 1  15  0 

„     Six  8-inch  silvered  plates  at  2s.          0  12  0 

,,     Loan  of  ca^es  for  ditto,  to  be  returned 1  10  0 

,,     One  6-feot  table  and  slab,  stock 8  5  0 

„     Carved  chimney-glass  C.  C.  T.  stock,  plate  58  X  48     ...     9  0  0 

„     Insurance  of  breakage  of  glass  to  Jersey        10  0 

„     Loan  of  cases  to  be  returned 1  0  0 


Net  cash  £45     2s.  Od. 

To  which  the  defendant  replied  in  the  following  letter :  — 

MiDVALE  House,  Jeksey,  January  18,  1861. 
Sir,  —  You  advise  having  forwarded  a  printed  list,  patterns,  and  prices :  it 
has  not  reached.     In  your   account  I  apprehend   there  must  be  some  mistake  : 
your  charge  for  loan  of  cases  and  packing  is  equivalent  to  their  value.     Please 
rectify  this.  Yours  truly, 

Edward  Nicoll 
Mr.  M'Lean,  I.ondon. 

The  ship  by  which  the  goods  were  sent  was  lost,  and  the  goods  were 
rendered  useless.  On  this  evidence  Braunvell,  B.,  ordered  the  plaintiff 
to  be  nonsuited,  for  want  of  a  memorandum  as  required  by  the  17th 
section  of  the  Statute  of  Frauds,  with  leave  to  move  tor  a  rule  to  set 
aside  the  nonsuit  and  enter  a  verdict  for  £48  lO^-.  Od.,  if  the  court 


488  m'lean  v.  nicoll.  [chap.  i. 

should  be  of  opinion  that  the  documents  in  evidence  constituted  a 
sufficient  memorandum. 

G'Malley  having  obtained  a  rule  accordingly, 

Hayes,  Serjt.,  and  Thrupp  shewed  cause,  contending  that  the  docu- 
ments put  in  at  the  trial  did  not  set  out  the  actual  contract.  [They 
cited  Cooper  v.  Smith,  15  East,  103 ;  Bailey  v.  Sweeting,  9  Weekly 
Rep.  273 ;  Archer  ^?.  Baynes,  5  Exch.  625 ;  and  Goodman  v.  Griffiths, 
1  H.  &  Norm.  574.] 

G'Malley  and  D.  D.  Keane,  contra,  contended  that  the  defendant 
by  his  answer  to  the  invoice  acquiesced  in  its  accuracy  as  a  statement 
of  the  real  contract. 

[Channell,  B.  It  was  part  of  the  original  contract  that  the  look- 
ing-glass frames  should  be  filled  with  the  best  plate-glass,  and  there  is 
no  mention  of  that  in  writing.] 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  rule  must  be  dis- 
charged. We  all  think  the  memorandum  must  contain  all  the  terms 
of  the  contract.  Now  the  invoice  taken  with  the  answer  does  not  con- 
tain all  the  terms  of  the  contract.  No  doubt  cases  have  decided  that 
an  invoice  responded  to  by  a  signed  letter  may  form  a  memorandum 
to  satisfy  the  Statute  of  Frauds.  But  in  those  cases  it  was  held  that 
the  memorandum  must  contain  all  the  terms  of  the  contract ;  and  the 
invoice  taken  with  the  answer  does  not  contain  all  the  terms  of 
the  contract  according  to  the  evidence  of  the  jjlaintiff :  one  term  of  the 
contract,  relating  to  the  quality  of  the  glass,  is  not  mentioned  in  the 
invoice  at  all ;  and  as  the  memorandum  should  contain  all  the  terms  of 
the  contract,  we  cannot  hold  that  the  Statute  of  Frauds  has  been  cora*- 
plied  with.  We  are  first  to  inquire  what  was  the  real  contract,  and 
then  Avhether  the  invoice  and  answer  together  furnish  a  memorandum 
of  what  was  the  real  contract.  It  is  to  be  regretted  that  we  should  be 
under  the  necessity  of  entering  upon  such  frequent  instances  of  non- 
compliance with  the  statute.  The  cases  have  gone  very  far  in  putting 
the  correspondence  of  parties  together  and  constituting  a  memorandum 
to  satisfy  the  statute.  But  I  think  we  should  not  be  always  searching 
for  something  equivalent  to  a  memorandimi ;  and  in  this  case  certainly 
we  could  not  on  any  principle  hold  that  any  had  been  shewn. 

Martin,  B.  I  am  of  the  same  opinion,  and  I  wish  to  express  my 
concurrence  with  the  case  in  the  Common  Pleas,  as  I  think  it  has  been 
misunderstood.^  The  effect  of  that  case,  with  which  I  concur,  is 
this :  that  if  after  a  contract  has  been  made  there  is  a  writing  stating 
what  it  was,  and  conformable  to  the  real  contract,  the  statute  is  satis- 
fied thereby.  There  is  no  new  law  in  that :  it  is  mentioned  in  Sugden's 
Vendors  and  Purchasers ;  it  has  existed  for  years,  and  has  never  been 
questioned.  If  the  contract  be  in  writing,  it  is  evidence  of  itself:  if  it 
be  a  verbal  contract,  the  written  evidence  of  it  must  be  subsequent  to 
1  See  Simmons  v.  South  Eastern  Railway  Company,  7  Jur.  (n.  s.)  851. 


SECT.    VI.]  WATTS    V.    AINSWORTH.  489 

the  contract;  and  the  document,  if  corresponding  to  the  verbal  con- 
tract and  signed,  is  sufficient.  But  as  my  brother  Channell  lias  pointed 
out,  the  writing  in  this  case  does  not  correspond  in  ivery  respect  to 
the  real  contract. 

Channk].l,  B.  I  also  am  of  opinion  that  tlic  rule  should  be  dis- 
charged. I  feel  no  doubt  as  to  the  case  of  Bailey  v.  Sweeting,  nor 
that  an  invoice  and  letter  taken  together  may  constitute  a  memoran- 
dum to  satisfy  the  statute.  It  has  often  been  said  that  the  statute  w^as 
intended  to  prevent  fraud  and  perjury  by  putting  an  end  to  contracts 
unevidenced  by  writing.  The  more  correct  view  is  that  the  contract 
still  exists,  but  that  it  cannot  be  ])ut  in  force.  I  think  that  when  we 
inquire  whether  a  verbal  contract  corresptmd  to  the  writing  we  may 
be  letting  in  the  very  evils  which  the  statute  was  meant  to  avoid. 
But  it  is  too  late  to  dispute  the  cases  on  this  subject.  I  quite  agree 
that  it  is  not  necessary  to  shew  every  individual  incident  in  the  con- 
tract, but  that  a  substantial  contract  must  be  shewn.  Is  the  sub- 
stantial contract  here  set  out  in  writing  ?  I  think  not.  The  frames 
were  to  be  fitted  with  the  best  glass,  Avhich  was  a  material  element  in 
the  bargain.  Suppose  there  were  no  question  of  the  Statute  of  Frauds, 
the  defendant  might  have  refused  to  receive  any  thing  but  the  very 
best  glass.  The  invoice  says  nothing  of  this,  and  therefore  the  proof 
fails,  and  the  rule  must  be  discharged.  Jiule  discharged. 


WATTS    V.   AINSWORTH    and   Others. 
In  the  Exchequer,  April  25, 1862. 

[Reported  in  SI  Law  Journal  Reports,  Exchequer,  448.] 

Declaration,  for  that  the  plaintiff"  agreed  Avith  the  defendants  to 
sell  and  sold  to  the  defendants,  and  the  defendants  then  agreed  with 
the  plaintiff'  to  buy  and  bought  of  the  plaintiff',  the  i)roduce  of  three 
acres  of  white  globe  turnip-seed,  of  the  growth  of  the  year  1861,  at 
the  price  of  18s.  per  bushel  to  be  paid  by  the  defendants  to  the  plain- 
tiff", and  upon  the  terms  that  the  plaintiff"  should  deliver  the  said  white 
globe  turniji-seed  as  soon  as  harvested  in  the  year  18G1,  free  of  car- 
riage, to  the  Bricklayers'  Arms  Station,  London,  of  the  South  Eastern 
Railway,  for  the  defendants,  and  that  the  same  seed  should  be 
accepted  by  the  defendants  at  that  station.  Averment  of  jierform- 
ance  of  conditions  precedent.  Breach,  that  th6  defendants  did  not 
nor  would  accept  the  turnip-seed  or  pay  the  price;  with  counts  for 
goods  bargained  and  sold,  and  goods  sold  and  delivered. 


490  WATTS   V.    AINSWORTH.  [CHAP.    I. 

Pleas :  to  the  first  count,  non  assum2ysU,  and  that  the  agreement 
was  rescinded  before  breach ;  and  to  the  residue  of  the  declaration, 
never  indebted. 

At  the  trial  before  Wightman,  J.,  at  the  Maidstone  spring  assizes, 
the  following  facts  appeared  :  The  plaintiff  is  a  corn  and  seed  mer- 
chant and  farmer  at  Hythe,  and  the  defendants  are  seedsmen  in  High 
Holborn,  trading  under  the  name  of  Carter  &  Co. 

On  the  7th  of  March,  1861,  the  plaintiff  Avrote  the  following  letter 
to  the  defendants,  and  the  subsequent  correspondence  ensued :  — 

March  7,  1861. 
Messrs.  James  Carter  &  Co., 
237  High  Holborn. 
Gentlemen,  —  Mr.  Bayden  of  this  place  has  handed  me  your  card,  stating 
that  you  were  buyers   of  turnip-seed  now  growing.     I  do  a  large  business  with 
several  of  the  most  respectable  houses  in  London  and  elsewhere,  and  possibly  I 
may  be  in  a  position  to  offer  you  some  sorts  that  you  may  be  buyers  of.      If 
you  will  have  the  goodness  to  name  the    sorts    and  quantities,  I  will  at  once 
say  how  far  I  can    meet    your    wishes.       My  usual  practice  is  to  contract  by 
the  acre,  the  seedsman  taking  whatever  the  produce  may  be,  at  a  stated  price 
per  bushel.  I  am,  gentlemen,  yours  obediently, 

James  Watts. 

P.  S.  —  I  am  well  known  to  Mr.  Robert  Pain  who,  I  believe,  is  connected 
with  your  house. 


237  and  238  High  Holborn,  London, 
March   11,  1861. 
James  Watts,  Esq. 

Dear  Sir,  —  In  reply  to  yours  we  beg  to  say  we  shall  be  glad  to  know  what 
turnips,  &c.,  you  have  in  growth  for  1861  harvest,  with  quantities  and  price, 
delivered  carriage  free  to  London  station.  We  should  also  be  glad  to  know  at 
what  price  you  could  do  us  four  or  six  acres  scimitar  peas,  if  you  have  them  in 
growth.  We  remain,  dear  sir,  yours  faithfully, 

James  Carter  &  Co. 


March  14,  1861. 

Messrs.  Carter  &  Co. 

Gentlemen,  —  Since  writing  to  you  on  the  7th  instant,  I  have  gone  over  my 

growing  crops,  and  I  find  I  do  not  stand  very  well  for  surplus,  and  all  I  can 

offer  you  at  present  is  the  produce  of  five  acres  white  globe,  fa)  18/G ;    five 

acres  Skirving's   swedes,  fa)  28/.     Some   of  the    latter  was  sold  fa)  30/  a  few 

days   since.      You  may  entirely  rely  on  the   stocks   of  the   above,    and  I   will 

undertake  to  deliver  them  to  the  Bricklayers'  Arms  Station.     I  cannot  offer  you 

any  scimitar  peas :   I  have  only  six  bushels  left,  barely  sufficient  to  get  up  my 

stock.  I  am,  &c., 

James  Watts. 


SECT.    VI.]  WATTS   V.    AINSWORTH.  491 

High  Holbokx,  London,  March  18,  1861. 
James  Watts,  Esq. 

Dkau  Siu, —  In  reply  to  your  favor  we  beg  to  say  we  have  bought  Skirving's 
swede  turnips  at  a  considerable  less  price  than  what  you  (juote  it  at,  and  we 
think  your  price  too  high  for  white  globe.     We  could  take  two  or  three  acres  of 
the  latter  at  16/6  per  bushel,  just  to  make  a  beginning  with  you. 
Waiting  your  reply,  we  remain,  &c., 

James  Cahteu  &  Co. 

N.  B.  —  The  scimitar  peas  we  require  are  for  1861  harvest.  Please  to  quote 
price  and  quantity  of  acres. 

March  19,  1861. 
Messrs.  James  Carter  &  Co. 

Gentlemkx, — I  am  much  obliged  for  your  offer  for  two  or  three  acres  of  white 
globe,  but  I  cannot  accept  it.  My  contract  price  was  18/  with  the  London 
houses,  and  I  see  no  reason  to  go  below  that  now.  I  was  asked  35/  for  growing 
swedes  to-day  at  Ashford  market.     I  cannot  offer  you  any  peas. 

I  am,  «fec.,  James  Watts. 

High  Holbokn,  March  21,  1861. 
James  Watts,  Esq. 

Dear  Sir, — In  reply  to  your  favor  of  this  morning  we  beg  to  say,  as  our 
neighbors  are  giving  you  18/  per  bushel  for  white  globe  turnip,  we,  as  a 
beginning  with  you,  will  take  the  produce  of  three  acres  at  that  price,  to  be 
delivered  as  soon  as  harvested,  18G1,  free  of  carriage  to  London  station.  Let 
us  know  what  other  sorts  you  may  have  to  offer,  as  also  worzel  seeds  of  sorts  for 
1861  harvest.  Waiting  your  reply,  we  remain,  &c., 

James  Carter  &  Co. 

August  13,  1861. 
Messrs.  James  Carter  &  Co. 

Gentlemen,— I  have  this  day  sent  away  the  produce  of  the  three  acres  of  white 
globe  turnip,  consigned  to  you  at  the  Bricklayers'  Arms  Station,  to  which  please 
give  attention.  If  you  are  buyers  of  any  other  sorts  I  shall  be  happy  to  submit 
to  you  prices.     I  have  small  quantities  of  most  sorts  open.     I  am,  &c., 

James  Watts. 

High  Holbokn,  August  IC,  1861. 
Mr.  James  Watts. 

Dear  Sir,  — You  have  made  some  mistake  respecting  the  white  globe  turnip; 
as  when  we  offered  you  a  price  (18/)  for  it,  you  called  and  said  you  could  not 
accept  it,  and  we  in  consequence  of  your  refusal  have  purchased  elsewhere. 
The  seed  lies  at  the  railway  station  at  your  risk. 

Your  obedient  servants, 

James  Carter  &  Co. 

August  17,  1861. 
Messrs.  James  Carter  &  Co. 

Gkntlemen,  —  I  am  very  much  surprised  at  the  contents  of  your  letter  of 
yesterday's  date.     I  think  I  can  prove  to  you  that  you  are  in  error  as  to  the 


492  WATTS   V.    AINSWORTH.  [CHAP.    I. 

white  globe,  and  not  myself.  On  the  14th  of  March  last  I  offered  you  by  letter 
the  produce  of  five  acres  white  globe  fa>  18/6,  and  five  acres  Skirving's  swedes  fa) 
28/.  On  the  18th,  by  letter,  you  state  that  you  have  bought  Skirving's  swedes 
at  less  than  my  quotations  ;  and  you  consider  my  price  too  high  for  white  globe, 
and  offer  16/6  for  two  acres  or  three  acres.  On  the  19th  I  decline  this,  and  state 
that  I  have  18/  from  your  neighbors,  and  I  am  not  inclined  to  go  below  it.  I  send 
you  a  precise  copy  of  your  answer.  (Copy  of  Messrs.  Carter's  letter  of  the  21st 
of  March,  1861,  sent.)  Some  time  after  this  I  called  at  your  house  and  offered 
you  other  seeds.  The  white  globe  contract  was  mentioned,  but  not  the  terms. 
It  was  never  repudiated  in  any  way  then  or  since,  and  I  must  hold  you  to  it.  I 
am  very  sorry  there  should  be  any  mistake  between  us  in  our  first  transaction, 
but  I  feel  that  there  is  no  fault  attached  to  me.  I  am,  &c., 

James  Watts. 

High  Holborn,  August  19, 1861. 
Mr.  James  Watts, 

We  are  fully  aware  that  we  offered  you  18/  per  bushel  for  the  white  globe 
turnip  in  our  letter  of  the  21st  March  last,  but  we  have  never  received  your  reply 
accepting  this  offer ;  and  when  the  subject  was  mentioned  on  your  calling  at  Hol- 
born, you  stated  that  you  could  not  do  the  white  globe  turnip.  The  seed  still 
lies  at  the  railway  station  at  your  risk. 

Your  obedient  servants, 

James  Carter  &  Co. 

August  20,  1861. 
Messrs.  James  Carter  &  Co. 

Gentlemen,  —  I  have  received  yours  of  yesterday ;  and  as  you  have  deter- 
mined to  repudiate  your  agreement,  I  give  you  notice  that  I  shall  not  take  the 
seed  back,  and  that  I  shall  at  once  proceed  against  you  for  the  amount.  If  you 
really  mean  to  resist  my  claim,  send  me  the  name  of  your  solicitor  by  return. 

I  am,  &c., 

James  Watts. 

The  present  action  was  thereupon  brought. 

The  plaintift'  in  his  evidence  stated  that  he  did  not  reply  by  letter  to 
the  defendants'  letter  of  the  21st  of  March,  but  that  being  in  London 
on  the  25th  of  March  he  called  at  the  defendants'  shop,  and  had  some 
conversation  with  Ains worth,  one  of  the  defendants,  on  the  subject  of 
other  seeds,  in  the  course  of  which  the  defendant  said,  "  I  think  we 
have  some  transaction  with  you ; "  and  the  plaintiff  replied,  "  Yes,  a 
contract  for  three  acres  of  white  globe."  The  defendant  Ains^vorth, 
on  the  other  hand,  stated  that  he  said  to  the  plaintiff  when  he  called, 
"I  believe  Ave  have  been  writing  to  you  about  some  turnip-seed?"  and 
the  plaintiff  said,  "Yes,  but  I  cannot  accept  your  offer;"  and  that  acting 
upon  that  the  defendants  bought  turnip-seed  elsewhere  at  a  higher 

price. 

.    It  appeared  that  the  market  price  had  fallen  considerably  between 

March  and  August. 


SECT.   VI.]  WATTS   V.    AINSWORTH.  493 

The  learned  judge  left  it  to  the  jury  to  say  whether  the  plaintift'at 
the  interview  rejected  or  accepted  the  terras  of  the  letter  of  the  21st 
of  March  ;  reseiwing  leave  to  the  defendants  to  move  on  the  question 
of  whether  there  was  any  contract  in  writing  to  satisfy  the  17th  sec- 
tion of  the  Statute  of  P'rauds. 

The  jury  found  that  the  contract  was  accepted,  and  the  verdict  was 
entered  for  the  plaintiif. 

Prentice  now  moved,  pursuant  to  the  leave  reserved,  to  enter  the 
verdict  for  the  defendants.  There  was  no  contract  to  satisfy  the 
Statute  of  Frauds.  Tlie  letters  were  more  proposals,  and  there  was  no 
complete  bargain  in  writing,  the  plaintift'  never  having  acceiJted  the 
defendants'  ofler  contained  in  the  letter  of  the  21st  of  March.  One 
mode  of  testing  whether  the  letter  was  a  complete  contract  is,  whether 
a  stamp  was  necessary  (assuming  that  it  was  not  a  case  exempted  from 
duty  as  relating  to  the  sale  of  goods,  wares,  or  merchandise).  Clearly 
no  stamp  would  be  necessary,  the  letters  being  mere  offers,  which  were 
not  accepted.  [Beamwell,  B.  It  comes  to  this:  Was  the  plaintiff 
bound  to  supi^ly,  even  if  he  had  insisted  there  was  no  contract  ?] 

Yes,  that  is  the  question.  How  could  the  plaintiff  be  bound,  wlien 
he  had  never  agreed  to  sell  three  acres  ?  He  had  offered  to  sell  five 
acres,  and  was  not  bound  to  sell  a  less  quantity.  The  offer  of  the  de- 
fendants to  take  three  acres  was  therefore  subject  to  his  approval,  and 
there  was  no  bargain  in  writing  between  the  parties;  and  the  parol 
assent  as  found  by  the  jury  is  insufficient  to  satisfy  the  statute. 

Martin,  B.^  I  am  of  opinion  that  no  rule  should  be  granted  in  this 
case.  I  think  the  last  letter  of  the  defendants,  of  the  21st  of  March, 
was  an  absolute  contract  to  take  the  produce  of  three  acres  at  the  price 
asked  by  the  plaintiff.  Apart  from  that,  I  think  it  was  a  question  tor 
the  jury  whether  there  was  an  adoption  by  the  plaintiff  of  the  letter  ; 
and  that  the  jury  having  found  that  the  contract  was  accepted,  that 
was  such  a  ratification  of  the  letter  signed  by  the  defendants  as  makes 
the  latter  a  compliance  with  that  part  of  the  17th  section  of  the  Statute 
of  Frauds  which  requires  a  memorandum  or  note  in  wiiting  of  the  bar- 
gain to  be  made  and  signed  by  the  parties  to  be  charged.  In  either 
way  therefore  the  statute  is  satisfied. 

Bramwell,  B.  I  agree  there  should  be  no  rule.  I  think  that  in 
this  case  there  is  a  memorandum  in  writing  within  the  Statute  of 
Frauds.  I  think  there  is  no  principle  and  no  authority  for  saying  that 
if  the  letter  were  a  mere  offer,  the  agreement  by  parol  on  the  part 
of  the  plaintiff  would  be  sufficient.  Still,  I  think  I  can  see  from  the 
letters  themselves  a  memorandum  in  writing  of  the  bargain.  The 
plaintiff  writes  offering  to  sell  turnip-seeds.  The  defendants  reply,  ask- 
ing as  to  quantities  and  price.  The  plaintiff  writes,  saying  all  he  can 
offer  is  the  produce  of  five  acres  at  a  given  price  ;  that  is,  the  limit 

1  Pollock,  C.  B.,  had  left  the  court. 


494  DURRELL   V.    EVANS.  [CHAP.   I. 

of  the  quantity  he  can  supply  is  five  acres.  The  defendants  in  answer 
say  in  efiect,  "  We  do  not  want  all  you  ofier,  only  two  or  three  acres  at 
another  price  ; "  and  they  offer  to  buy  three  acres  at  a  price  named. 
The  plaintiff  writes,  saying  he  is  much  obliged  for  the  offer  but  he 
declines,  not  on  account  of  the  quantity  but  on  account  of  the  price  ; 
that  is  to  say,  he  is  willing  to  sell  three  acres  at  18s,  The  defendants 
thereupon  say  they  will  take  three  acres  at  18s.  The  words  "waiting 
your  reply  "  create  the  doubt ;  for  if  a  man  says,  "  Let  me  know  if  I 
am  right  in  ray  notion  of  the  bargain,"  I  think  there  is  no  bargain  until 
the  other  says,  "  Yes,  those  are  the  terms."  I  confess  there  is  a  diffi- 
culty in  the  case  ;  but  still  I  think  that  is  not  the  effect  of  the  words 
"  waiting  your  reply ; "  for  if  that  were  so,  the  reply  would  only  be, 
"  Yes,  all  ridit."  While  therefore  I  entertain  a  doubt,  it  is  not  so 
strong  as  to  say  that  I  think  a  rule  should  be  granted. 

Wilde,  B.  I  am  of  the  same  opinion.  I  quite  agree  in  the  exposi- 
tion of  the  letters  given  by  my  brother  Bramwell.  The  single  question 
is,  whether  the  letter  of  the  21st  of  March  is  a  sufficient  memorandum 
within  the  Statute  of  Frauds.  If  it  is  a  contract  to  buy  three  acres  of 
turnip-seed  at  18s.  a  bushel,  then  the  point  is  not  arguable.  I  think 
it  is  a  contract.  I  will  only  say,  in  reference  to  the  words  "  waiting 
your  reply,"  that  if  they  are  to  be  regarded  as  making  only  a  proposal, 
then  there  is  not  a  contract ;  but  I  do  not  give  that  effect  to  the  words. 
The  letter  makes  inquiries  as  to  other  sorts  of  turnip-seeds,  and  also  as 
to  worzel  seed  ;  and  the  defendants  wait  for  a  reply  as  to  that  part  of 
the  letter.  I  may  add  that  I  believe  the  Lord  Chief  Baron  is  of  the 
same  opinion.  Iiule  refused. 


DURRELL  V.  EVANS   and   Others. 
In  the  Exchequer  Chamber,  May  19,  1862. 

\Re.f(yrted  in  31  Law  Journal  Reports,  Exchequer,  837.] 

Appeal  from  the  Court  of  Exchequer. 

First  count,  for  not  accepting  pursuant  to  agreement  thirty-three 
pockets  of  hops,  at  the  price  of  £16  16s.  per  cwt.,  to  be  paid  on  the 
3d  of  November,  1860 ;  second  count,  for  goods  bargained  and  sold, 

and  interest. 

Plea :  to  the  first  count,  a  traverse  of  the  agreement ;  and  never 
indebted,  to  the  residue  of  the  declaration.^ 

1  See  Keuss  v.  Picksley,  Law  Rep.  1  Exch.  342.  —  Ed. 

2  There  were  other  pleas,  which  it  is  unnecessary  to  set  out. 


SECT.    VI.]  DURRELL   V.   EVANS.  495 

At  tlie  trial  before  Pollock,  C.  B.,  at  the  sittings  in  London  after 
Michaelmas  term,  1860,  a  verdict  Avas  found  for  tlio  i)laintilf  on  all 
the  issues,  with  £20  damages,  leave  being  reserved  to  move  to  enter  a 
verdict  for  the  defendants  or  a  nonsuit. 

A  rule  ?iisi  was  obtained  accordingly,  on  the  ground  that  tliere  was 
no  contract  in  writing  nor  part  delivery  of  goods  sufficient  to  satisfy 
the  Statute  of  Frauds. 

The  Court  of  Exchequer  (April  30,  1861)  made  the  rule  absolute  to 
enter  a  nonsuit.^ 

I  See  30  L.  J.  Exch.  254,  where  the  argument  and  opinions  are  reported  as  fol- 
lows :  — 

Lush  having  obtained  a  rule  nisi  to  enter  a  nonsuit, 

T.  Jones  and  Waddy  shewed  cause.  The  factor  Noakes  was  as  much  the  nyent  of 
the  defendants  as  the  phiintiff,  just  as  a  stock  or  sliare  broker  or  an  auctioneer  would 
be  between  a  vendor  and  purchaser.  He  made  out  the  usual  l)ouglit  and  sold  notes, 
and  iianded  the  bought  note  to  tlie  defendants.  The  defendants  expressly  directed 
him  to  alter  the  date. 

[Wii-UK,  B.  Suppose  I  went  into  a  shop  and  told  a  man  to  make  me  out  an  in- 
voice, and  he  put  the  wrong  price,  and  I  handed  it  back  to  him  to  alter  the  price, 
which  lie  did :  how  would  this  be  an  adoption  of  the  invoice  as  a  memorandum  of  tlie 
bargain  ?] 

Tliere  was  evidence  for  the  jury  that  Noakes  was  acting  as  the  defendants'  agent. 

The  following  cases  were  referred  to :  Johnson  v.  Dodgson,  2  Mee.  &  W.  653  ; 
Schneider  v.  Norris,  2  M.  &  S.  286;  Bird  v.  Boulter,  4  B.  &  Ad.  443  ;  Farebrother  v. 
Simmons,  5  B.  &  Aid.  333  ;  Graham  v.  Musson,  7  Sco.  769  ;  Wright  r.  Dannali,  2  Campb. 
203;  Graham  v.  Fretwell,  3  Man.  &  G.  368;  Maclean  r.  Dunn,  4  Bing.  722;  Cham- 
pion V.  riummer,  1  N.  Kep.  252;  Humfrey  v.  Dale,  27  L.  J.  Kep  (n.  s.)  Q.  B.  390; 
Dixon  c.  Broomfield,  2  Chit.  Rep.  205;  Kucker  v.  Cammeyer,  1  Esp.  105;  Bartlett 
t;.  Purnell,  4  Ad.  &  E.  792 ;  Mews  v.  Carr,  1  Hurl.  &  N.  488. 

Haic/.ins,  in  support  of  the  rule,  was  stopped  by  the  court. 

Bra.mwell,  B.  I  am  of  opinion  that  this  rule  ought  to  be  made  absolute.  There 
is  not  much  doubt  about  the  law  in  reference  to  the  true  construction  of  the  17th 
section  of  tiie  Statute  of  Frauds,  which  enacts  [stating  it].  The  difficulty  arises  out 
of  the  actual  facts  of  the  transaction,  and  the  application  of  the  act  of  Parliament  to 
them.  Here  every  one  seems  to  have  done  all  he  could  do  to  avoid  making  a  com- 
plete and  perfect  contract,  binding  according  to  the  act  of  Parliament.  A  number  of 
cases  have  been  cited  during  the  argument  upon  the  subject,  but  there  is  no  case 
which  has  yet  gone  so  far  as  to  decide  any  thing  like  this  to  be  sutficient.  Now  the 
facts  of  this  case  are  these :  The  plaintiff  had  some  hops  in  the  country  for  sale,  and 
he  sends  up  to  his  factor  in  London  a  sample  ot  tliom,  to  enable  the  factor  to  sell  them 
for  him,  and  the  defendants  inspect  the  sample  and  inquire  the  price.  They  after- 
wards meet  the  seller,  they  converse  about  the  hops  and  the  price,  and  afterwards 
they  go  to  the  factor's  where  the  sample  is  ;  there  a  sum  is  agreed  upon  between  them 
for  the  sale,  and  the  factor  makes  out  a  bill  of  it.  The  factor  might  no  doubt  have 
asked  the  defendants  to  sign  the  note,  which  would  have  ratified  the  contract,  and 
bound  the  bargain  ;  but  he  did  not.  The  defendants  signed  nothing.  This  ajipears 
to  be  tiieir  mode  of  doing  business.  In  the  corn-market  I  understand  a  similar  course 
of  proceeding  is  followed,  which  is  no  doubt  a  source  of  much  litigation.  If  the 
defendants  had  not  signed  the  note  themselves,  they  might  have  said  to  the  factor, 
"Sign  this  for  us  or  on  our  behalf;"  but  this  they  did  not  do,  and  there  is  nothing 
whatever  here  by  them  in  writing  to  shew  any  intention  on  tlieir  part  to  lie  bound,  or 
that  they  authorized  any  one  to  sign  on  their  l>ehaU'.     I  quite  agree  with  the  obser- 


496  DURRELL   V.    EVANS.  [CHAP.    I. 

The  followig  is  the  statement  of  the  case  on  appeal:  — 
The  pLiintifF  is  a  hop  grower  in  Kent ;  the  defendants  Messrs.  Evans 
are  hop  merchants,  carrying  on  business  in  Southwark.  Previous  to 
the  19th  of  October,  1860,  the  plaintiff  had  sent  samples  of  the  hops 
forming  the  subject  of  this  action  to  Messrs.  J.  T.  &  W.  Noakes,  who 
carry  on  business  as  hop  factors  in  Southwark,  with  instructions  to  sell 
the  same  for  the  plaintiff,  but  not  under  £18  per  cwt.  On  Friday,  Oc- 
tober 19,  the  defendant  J.  C.  Evans  called  on  Messrs.  Noakes  and 
asked  to  see  samj^les  of  the  plaintiff's  hops,  which  wei-e  shewn  to  him. 
Upon  asking  the  price,  Mr.  J.  T.  Xoakes  replied  that  he  was  instructed 
by  the  ])laintiff  not  to  sell  under  £18  per  cwt.  The  defendant  J.  C. 
Evans  said  that  was  too  high  a  price  for  them,  and  he  should  not  give 
so  high  a  price  for  them.  He  then  left  Messrs.  Noakes's  premises.  On 
the  afternoon  of  the  same  day,  Friday,  October  19,  the  plaintiff  hap- 
pened to  be  in  the  borough,  and  met  the  defendant  J.  C.  Evans  :  a  con- 
versation took  place  between  them  with  reference  to  the  plaintiff's 
hops.  Mr.  J.  C.  Evans  offered  tlie  plaintiff  £16  I65.  per  cwt.,  which 
the  plaintiff  refused,  but  ultimately  both  parties  went  to  Messrs. 
Noakes's  counting-house,  and  saw  Mr.  J.  T.  Noakes  upon  the  subject. 
Some  further  conversation  took  place  as  to  the  j^urcliase  of  the  hops, 
which  ended  in  Mr.  J.  C.  Evans  refusing  to  give  more  than  £16  16s. 
per  cwt.      The  plaintiff  in  the  j)resence  and  hearing  of  Mr.  Evans 

vation  that  was  made  by  one  of  my  learned  brothers  during  the  argument,  that  it  is 
no  more  than  if  a  person  went  into  a  tradesman's  sliop,  and  having  bouglit  a  quantity 
of  goods  said,  "  Make  out  a  certain  invoice,  or  an  invoice  in  a  particular  form,  for  the 
goods,  or  put  me  down  so  and  so."  The  factor  in  the  present  case  no  doubt  had  no 
notion  whatever  that  he  was  doing  what  he  did  on  behalf  of  the  buyer,  but  wholly 
and  solely  as  the  agent  of  the  seller.  The  case  seems  to  me  to  be  perfectly  plain. 
There  was, no  sufficient  note  in  writing  to  bind  the  defendant  to  the  bargain  within 
the  17th  section  of  the  Statute  of  Frauds.  I  think  this  rule  ought  to  be  made  abso- 
lute. 

Wilde,  B.  I  am  of  the  same  opinion  as  my  brother  Bramwell,  and  concur  with 
him  that  this  rule  should  be  made  absolute.  I  think  there  must  be  a  memorandum 
signed  bj'  the  party  to  be  charged  himself,  or  by  some  one  properly  authorized  on  his 
behalf  for  him,  to  make  him  liable  under  the  17th  section  of  the  Statute  of  Frauds. 
It  seems  to  me  that  here  there  is  neither.  The  defendants  have  not  signed  any  thing 
themselves  in  the  transaction,  nor  has  any  one  else  done  so  for  them  on  their  behalf. 
It  is  just  the  same  as  if  an  invoice  had  been  asked  for  of  goods,  and  such  an  invoice 
given,  and  that  appears  to  me  to  be  the  whole  effect  of  this  note  produced  in  evidence 
at  the  trial. 

Pollock,  C.  B.  I  entirely  agree  with  the  rest  of  the  court  in  tliinking  that  this 
rule  should  be  made  absolute.  At  the  trial  I  thought  it  right  to  reserve  to  the  defend- 
ants leave  to  move  upon  it,  and  let  the  matter  be  discussed.  The  defendants  did  not 
sign  the  note,  nor  was  it  signed  by  any  one  for  them  or  on  their  behalf;  and  the 
defendants'  subsequent  conduct  amounts  to  nothing,  because  a  party  does  not  adopt 
and  ratify  that  which  was  not  originally  done  on  his  behalf.  If  the  required  act  was 
not  originally  done  on  his  behalf,  he  cannot  be  afterwards  legally  bound  by  it  where 
he  has  not  adopted  it.  The  factor  here  was  the  agent  of  the  seller  only,  and  not  of 
the  buyer.  Rule  absolute  to  enter  a  7ionsuit, 


SECT.    VI.]  DURRELL  V.    EVANS.  497 

asked  Mr.  J.  T.  Noakes  Avhether  he  would  recommend  him  (the  plain- 
tiiF)  to  accept  Mr.  Evans's  offer.  Mr.  Xoakes  advised  him  to  <lo  so, 
and  the  plaintiff  agreed  to  sell  the  hops  at  that  price.  Mr.  Noakes 
then  drew  out  a  sale  note  in  duplicate. 

By  the  custom  of  the  hop  trade  the  purchase-money  for  hops  is 
payable  on  the  Saturday  week  following  the  day  of  the  sale.  This 
transaction  took  place  on  Friday  the  lOtli  of  October;  and  the  money 
would  consequently  have  become  payable  in  due  course  on  Saturday, 
October  the  '27th.  Mr.  Noakes  therefore  drew  out  the  following 
memorandum,  and  dated  it  the  19th  of  October,  whereupon  Mr.  Evans 
requested  him  to  alter  the  date  to  the  20th,  in  order  that  he  might 
have  another  week's  time  for  payment.  The  plaintiff  and  Mr,  Noakes 
consented  to  this,  and  the  alteration  was  accordingly  made  by  Mr. 
Noakes,  who  then  gave  the  memorandum  so  altered  to  Mr.  J.  C.  Evans, 
who  took  the  same  away  with  him,  and  he  has  never  yet  returned  it. 
The  memorandum  was  torn  from  a  book  which  contained  a  counterfoil, 
and  which  was  filled  up  and  retained  by  Messrs.  Noakes. 

The  following  is  a  copy  of  the  memorandum  first  referred  to  :  — 


Messrs.  Evans 

Bought  of  J.  T.  &  W.  Noakes 

Bags.     Pockets. 

T.  Durrell,           )  £    •«. 

33 

Rvarsh  and  Addington  \  16  16 

2dth, 

Oct.  19th,  1860. 

The  following  is  a  copy  of  the  counterfoil  above  referred  to :  — 

Sold  to  Messrs.  Evans 
Bags.    Pockets.  T.  Durrell,  )   £     s. 

33  Ryarsh  and  Addington  ^  16  16 

20th, 
Oct.  19th,  1860. 

[In  both  documents  19th  was  struck  through  with  the  pen,  and  20th 
inserted  above.] 

No  memorandum  (except  as  aforesaid)  was  signed  or  given  by  the 
defendants  or  any  person  on  their  behalf,  nor  was  there  any  writing 
relating  to  the  contract  except  as  above  set  out  and  the  invoice  afler 
mentioned.  A  sample  of  each  of  the  pockets  of  hops  was  sent  by 
Messrs.  Noakes  to  the  defendants  the  same  evening;  and  the  defend- 
ants have  ever  since  retained  them,  and  still  keep  them. 

In  the  usual  course  of  business,  after  the  purchase  is  completed  by 
the  factor  an  appointment  is  made  between  the  vendor  and  the  pur- 
chaser for  the  hops  to  be  weighed ;  for  which  purpose  they  are  sent 
by  the  vendor  to  his  factor's  warehouse.  In  this  instance  the  a])point- 
ment  was  made  for  the  following  Tuesday,  October  23 ;  and  on  that 
morning  the  hops  were  sent  to  Messrs.  Noakes's  warehouse.  The 
VOL.  I.  32 


498  DURRELL   V.    EVANS.  [CHAP.    I. 

warehouseman  of  the  factor  generally  weighs  in  behalf  of  the  vendor, 
and  the  purchaser  either  comes  himself  or  sends  some  one  to  see  the 
hops  weighed  on  his  behalf  In  this  case  the  plaintiif  came  up  to  see 
his  hops  weighed,  and  the  defendants  sent  one  of  their  men  (James 
Wenn)  to  see  them  weighed  for  them.  Each  weigher  has  a  book  in 
which  he  records  the  weight  of  each  pocket,  and  also  the  excise  weight, 
with  the  number  or  figure  with  which  each  jDocket  is  marked  or  dis- 
tinguished. On  this  occasion  the  weighing  proceeded  in  the  usual 
course  until  five  pockets  had  been  weighed,  when  a  dispute  took  place 
between  the  weighers,  and  ultimately  the  defendants'  weigher  refused  to 
weigh  any  more.  The  defendant  R.  P.  Evans  came  into  the  ware- 
house at  this  time,  and  went  to  the  scale  and  saw  weighed  the  pocket 
that  was  therein.  Having  done  so,  he  cut  it  open  and  took  out  a  por- 
tion of  the  hops  and  said  they  were  damp.  The  plaintiff  denied  that 
they  were  damp ;  but  the  defendant  persisted  in  his  statement,  and 
finally  said  he  should  not  take  the  hops  at  all,  and  left  the  warehouse 
with  his  man. 

After  the  defendant  and  his  weigher  left  the  warehouse  and  after 
such  refusal,  the  plaintiff's  weigher  completed  the  weighing,  and  the 
weight  amounted  in  the  whole  to  50  cwt.  13  lb. 

On  the  9th  of  November,  1860,  Messrs.  Noakes  sent  to  the  defend- 
ants an  invoice,  of  which  the  following  is  a  copy :  — 

Borough. 
Messrs.  Evans  &  Co. 

To  J.  T.  &  W.  Noakes. 
1860. 

cwt.  lb.  £    s.        £        s. 

Oct.  20,  Durrellbt.  33  po.  50  13  fa)  16  16,  841  19. 

It  was  stated  by  Mr.  Noakes  at  the  trial  that,  a  day  or  two  after  the 
difference  relative  to  the  weighing,  he  had  an  interview  with  the 
defendant  R.  M.  Evans,  at  which  he  reqviested  R.  M.  Evans  to  send 
and  have  the  weighing  completed,  when  R.  M.  Evans  promised  Noakes 
that  he  would  do  so  and  accept  the  hops  and  complete  the  purchase ; 
but  the  defendants  subsequently  refused  to  do  so,  and  thereupon  the 
plaintiff  instructed  his  attorneys  to  write  and  send  a  letter  to  the 
defendants,  which  was  done. 

Copy  letter  from  plaintiff's  attorneys :  — 

37  King  William  Street,  London  Bridqe, 

Nov.  9,  1860. 

Sirs, — We  have  been  consulted  by  Mr.  Durrell  of  Banstead  with  refer- 
ence to  your  refusal  to  complete  your  contract  for  the  purchase  of  33  pockets 
of  hops,  sold  to  you  by  Messrs.  Noakes  on  behalf  of  our  client  on  the  20th  of 
October  last. 

We  beg  to  enclose  you  the  delivery  order,  and  are  instructed  to  inform  you 
that  the  goods  remain  in  Messrs.  Noakes's  warehouse,  awaiting  your  order  or 
disposal,  and  at  your  risk  and  costs ;  and  further  that  unless  the  sum  of  £841 


SECT.    VI.]  DURRELL    V.   EVANS.  499 

19s.,  being  the  amount  of  the  invoice  already  sent  you  for  these  hops,  be  paid 
to  us  by  11  o'clock  on  Monday  morning,  we  shall  take  immediate  proceedings 
against  yon  for  its  recovery. 

In  the  event  of  your  deciding  to  resist  this  claim,  we  have  to  request  a 
reference  to  your  solicitors.  We  are,  &c.. 

Ingle  &  Gooddy. 
Messrs.  K.  M.  Evans  &  Co.,  George  Yard.  Borough. 

The  invoice  above  referred  to  has  ever  since  been  retained  by  the 
defendants. 

On  tlie  9th  of  November  the  plaintiff's  attorneys  sent  to  the  defend- 
ants in  the  first-mentioned  letter  a  delivery  order,  of  which  the  follow- 
ing is  a  copy :  — 

Messrs.  Noakes's  Hop  "Warehouse, 

Sparrick  Row,  Weston  Street. 

Groombridge,  — Weigh  and  deliver  to  Messrs.  R.  M.  Evans  &  Co.  33  po. 

hops — T.  I.  Durrell — Ryarsh  and  Addington. 

For  J.  T.  &  W.  Noakes,  P.  N.  Norris. 

This  delivery  order  the  defendants  refused  to  receive ;  and  it  was 

taken  back  by  the  clerk  who  brought  it,  and  on  the  same  day  returned 

with  a  letter  as  follows :  — 

37  King  William  Street,  London  Bridge, 

Nov.  9,  1860. 

Gentlemen,  —  Our  clerk  has  taken  back  the  enclosed  in  error:  we  therefore 

return  it  to  you. 

Ingle  &  Gooddy. 

Messrs.  Evans  &  Co. 

The  defendants  returned  it  with  the  following  letter :  — 

Messrs.  Evans  &  Co.  present  their  compliments  to  Messrs.  Ingle  &  Gooddy, 
and  beg  to  say  the  enclosed  was  taken  back  by  their  clerk  at  Messrs.  Evans  & 
Co.'s  request. 

Southwark,  London,  Nov.  9, 1860. 

The  action  was  then  commenced  on  the  15th  of  November,  1860. 

No  part  of  the  said  hops  (except  the  samples)  has  ever  been  delivered 
to  the  defendants. 

T.  Jones,  for  the  plaintiff.  The  question  is  whether  there  was  evi- 
dence sufficient  to  satisfy  the  court  or  a  jury  that  the  defendants' 
name  was  put  to  the  document  by  the  agent  of  the  defendants.  The 
first  objection  that  may  be  started  on  the  part  of  the  defendants  is 
that,  Messrs.  Noakes  being  the  fictors  of  the  plaintiff,  Xoakes  could  not 
bind  the  defendants  by  what  he  did ;  but  it  is  a  fallacy  to  say  that 
because  Noakes  was  the  factor  of  the  plaintiff,  he  cannot  possibly  act 
as  the  agent  of  the  defendants.  Kinnitz  v.  Surry  ^  was  a  very  similar 
case  to  the  present.     That  was  an  action  for  not  receiving  corn  sold. 

1  A  MS.  case  given  in  Paley  on  Agency,  p.  171  (3d  ed.),  note  (p). 


500  DURRELL   V.   EVANS.  TCHAP.   I. 

By  the  course  of  the  corn  market  the  seller's  broker  delivers  a  sample 
and  order  for  the  delivery  of  the  corn  to  the  buyer,  who  has  till  next 
market  day  to  refuse  it  if  he  finds  the  bulk  vary  from  the  sample. 
The  buyer  having  had  the  coi'n  examined  refused  the  contract.  One 
objection  in  point  of  law  was  that  there  was  no  memorandum  of  the 
contract  signed  by  the  buyer  or  his  agent.  Lord  Ellenborough,  C.  J., 
declared  himself  clearly  of  opinion  that  the  broker's  note  was  not 
sufficient  of  itself,  he  being  prima  facie  only  the  agent  of  the  seller, 
and  not  of  the  buyer ;  but  if  the  buyer  acted  \apon  the  order,  as  in  the 
case  he  appeared  to  have  done  by  sending  his  servant  to  examine  the 
bulk  upon  the  authority  of  the  broker's  order,  that  was  such  an  adop- 
tion of  the  broker's  agency  as  made  him  agent  for  both  parties,  and 
his  note  sufficient  within  the  Statute  of  Frauds.  That  case  therefore 
is  an  authority  that  the  subsequent  conduct  of  the  defendants  is  suffi- 
cient to  bind  them,  but  in  truth  no  ratification  is  necessary  here. 

[Blackburn,  J.  That  case  is  differently  put  in  the  report  in  Espi- 
nasse.^  Willes,  J.  There  are  two  points :  first.  Can  the  agent  of  the 
plaintiff  act  for  the  defendant  too  ?  I  do  not  see  why  he  cannot. 
Secondly,  if  he  can,  was  what  Noakes  did  a  signature  by  an  agent 
authorized  within  the  Statute  of  Frauds  ?  Blackburn,  J.  Is  the 
writing  "  Messrs.  Evans "  putting  the  name  of  the  defendants  as  a 
signature  ?] 

In  Schneider  v.  Norris^  the  name  of  the  defendant,  the  seller,  was 
printed  at  the  head  of  a  bill  of  parcels,  to  which  the  defendant  added 
the  plaintiffs'  name  as  buyers,  and  then  handed  it  to  the  plaintiffs,  and 
it  was  held  that  the  printed  name  bound  the  defendant. 

[Blackburn,  J.  There  what  Avas  done  was  done  by  the  defendant 
himself  Here  is  the  converse ;  and  the  question  is,  Did  the  defendants 
appropriate  the  writing  of  the  name  by  the  plaintiff's  agent  as  an  authen- 
tication of  the  contract  on  their  behalf?] 

The  fact  of  the  defendant  asking  for  an  alteration  shews  that  he 
intended  to  be  bound  by  the  document  in  which  the  alteration  was 
made.  In  Schneider  v.  Norris,  Lord  Ellenborough,  C.  J.,  says:  "The 
defendant  has  by  his  writing  in  effect  said,  I  acknowledge  what  I 
have  written  to  be  for  the  purpose  of  exhibiting  my  recognition  of  the 
within  contract."  The  defendant  in  that  case  clearly  did  not  intend 
that  the  printed  name  should  be  taken  as  his  signature,  though  no 
doubt  he  might  have  meant  the  bill  of  parcels  to  be  a  memorandum  of 
the  bargain :  so  here  it  may  well  be  inferred  from  the  defendant's  con- 
duct that  he  treated  the  sale  note  as  a  memorandum  of  the  contract 
to  be  binding  on  him;  and  that,  according  to  Lord  Ellenborough's 
judo-ment,  is  sufficient.  It  has  never  been  held  necessary  that  in 
order  to  bind  a  party  there  must  be  an  express  recognition  of  his 

1  See  the  case,  5  Espinasse,  ii67,  nom.  Klinitz  v.  Surry. 

2  2  M.  &  S.  286. 


SECT.    VI.]  DURRELL   V.    EVANS.  501 

name  having  been  put  as  a  signature.  In  Maclean  v.  Bunn^  a  subse- 
quent recognition  of  a  contract  was  held  to  make  the  i)revious  signature 
by  the  agent  sufficient. 

[Crompton,  J.  Neither  of  these  documents  was  signed  by  the 
broker  Noakes  :  it  certainly  looks  like  the  case  of  a  double  invoice, 
and  no  more.] 

In  Saunderson  v.  Jackson  ^  the  facts  were  less  strong  against  the 
defendants  than  those  in  Schneider  u.  Norris  ;  and  the  bill  of  par- 
cels or  invoice  in  each  case  was  Jield  to  be  a  binding  memorandum. 

[Blackburn,  J.  Those  cases  would  be  in  point,  if  the  plaintiffs  or 
Noakes  were  disputing  their  liability ;  but  in  the  present  case  the  pur- 
chaser is  sought  to  be  made  liable  by  his  name  being  put  as  buyer  to 
this  document,  —  I  will  not  call  it  an  invoice,  —  written  by  the  seller's 
agent.] 

In  Johnson  v.  Dodgson  ^  the  defendant  simply  wrote  his  own  name 
as  buyer  at  the  head  of  a  document  which  he  got  the  plaintiffs'  agent 
to  sign,  in  order  to  bind  them ;  and  yet  this  was  held  sufficient  signa- 
ture to  bind  the  defendant,  because  the  defendant  intended  it  to  be  a 
memorandum  of  the  contract. 

[Crompton,  J.  Graham  v.  Musson"*  looks  very  like  an  autliority 
against  the  plaintiff.  The  buyer  requested  the  agent  of  the  seller  to 
write  a  note  of  the  contract  in  the  buyer's  book,  which  the  agent  did 
and  signed  his  own  name  to  it,  and  it  was  held  no  memorandum  to 
bind  the  buyer.] 

Graham  v.  Fretwell  ^  is  to  tbe  same  effect ;  but  in  those  cases  the 
defendant's  name  did  not  appear  at  all,  and  there  was  no  evidence,  as 
in  Johnson  v.  Dodgson,  that  the  defendant  meant  to  be  bound  by  the 
document,  for  it  is  clear  that  the  agent's  name  was  put  as  representing 
the  plaintiffs  only. 

[Crompton,  J.  In  Johnson  v.  Dodgson  the  defendant  wrote  the 
memorandum  with  his  own  name  himself.  What  is  the  evidence  here 
that  Noakes  when  he  wrote  was  acting  for  the  defendants  ?] 

The  plaintiff  and  the  defendant  were  both  present,  and  took  part  in 
the  discussion  as  to  the  terms  of  the  contract.  Noakes  wrote  out  the 
memorandum  at  the  dictation,  as  it  were,  of  both  ;  and  the  case  is 
very  near  Bird  v.  Boulter,*^  where  the  entry  in  the  sale-book  by  the 
auctioneer's  clerk  of  the  defendant's  name  as  purchaser  was  held  to 
bind  him  as  a  memorandum  within  the  statute,  although  all  the 
defendant  had  done  was  to  nod  as  assenting,  when  his  name  was 
called  out  as  the  person  to  whom  the  lot  was  knocked  down  as  the 
highest  bidder. 

1  4  Bing.  722.  2  2  Bos.  &  P.  238. 

3  2  M.  &  W.  653 ;  s.  c.  6  Law  J.  Rep.  (n.  s.)  Exch.  185. 

*  5  Bing.  N.  C.  603;  s.  c.  8  Law  J.  Rep.  (n.  s.)  C.  P.  324. 

5  3  Man.  &  G.  368;  s.  c.  11  Law  J.  Rep.  (n.  s.)  C  P.  41. 

6  4  B.  &  Ad.  443. 


502  DURRELL   V.    EVANS.  [CHAP.    I. 

Lush,  for  the  defendants.  This  is  not  the  case  of  a  sale  through  a 
broker  who  acts  as  the  agent  of  both  parties.  Messrs.  Noakes  were 
the  factors  or  agents  of  the  seller  alone.  And  call  this  document  what 
you  will,  it  is  merely  an  invoice. 

[Melloe,  J.  There  were  two  invoices,  then  ;  for  the  Messrs.  Noakes 
sent  an  invoice  on  the  9th  of  November.] 

The  defendant  is  there  himself,  and  nothing  would  have  been  easier 
than  for  him  to  have  signed.  The  question  is,  not  whether  the  defend- 
ant accepted  the  document  as  a  true  record  of  the  contract,  but  whether 
he  accepted  the  writing  of  his  name  as  a  signature. 

[Blackbue]s^,  J.  Both  parties  meant  the  terms  of  their  contract  to 
be  reduced  to  writing  by  Noakes.] 

That  was  the  case  in  Graham  v.  Musson.  It  is  true  that  the 
defendant's  name  did  not  appear  on  the  document  there,  but  the 
names  of  the  plaintiffs  and  of  the  agent  did ;  and  the  signature  by 
the  agent  of  his  own  name  is  just  as  binding  as  the  signature  by  him 
of  the  principal's  name.  That  case  therefore  is  not  distinguishable  on 
that  ground  from  the  present.  All  that  Tindal,  C.  J.,  says  in  that 
case  is  applicable  to  the  present,  —  viz.,  that  there  was  no  evidence 
to  shew  that  the  plain tifl^'s  agent,  in  reducing  the  terms  of  the  contract 
to  writing,  was  acting  as  the  defendant's  agent. 

[Byles,  J.  Here  there  are  two  documents;  and  the  defendant 
takes  one,  knowing  it  binds  the  plaintiff",  and  knowing  the  law,  as  he 
must  be  taken  to  do,  that  the  signature  of  himself  or  agent  is  required 
to  bind  him.     In  Graham  v.  Musson  there  was  no  cross  document.] 

Neither  is  there  here :  the  counterfoil  which  the  broker  keeps  is  simply 
a  memorandum  for  himself.  What  the  defendant  took  in  that  case  was 
not  simply  an  invoice,  in  the  strict  sense  of  that  word :  it  was  a  note,  as 
it  is  called  in  the  case.  That  no  doubt  was  the  memorandum  of  the  con- 
tract ;  and  yet  the  court  held  that  the  defendant  was  not  bound  by  it, 
because  the  plaintiff''s  agent  was  not  the  agent  of  the  defendant  to  sign 
within  the  Statute  of  Frauds.  When  did  Noakes  become  the  defend- 
ants' agent?  If  this  transaction  is  sufficient  to  bind  the  defendants,  so 
would  the  case  jDut  by  Wilde,  B.,  in  the  coui-t  below. 

[BLACKBtrE:?^,  J.  In  Graham  v.  Musson,  Coltman,  J.'s,  judgment  pro- 
ceeds on  the  ground  that  Musson's  name  does  not  occur.] 

Here  Evans's  name  is  neither  written  by  himself  nor  put  by  an- 
other as  his  signature,  but  simply  entered  as  the  party  who  has  bought, 
as  would  be  done  in  an  invoice.  Both  Coltman,  J.,  and  Erskine,  J., 
as  well  as  the  Chief  Justice,  shew  what  the  grounds  of  their  judg- 
ment are ;  namely,  that  the  name  of  the  agent  was  not  put  by  him  as 
the  agent  of  the  defendant.  Graham  v.  Fretwell,  if  any  thing,  is  a 
still  stronger  case  in  the  defendants'  favor.  Saunderson  v.  Jackson 
and  Schneider  v.  Norris  are  very  different  cases  from  the  present.  In 
both  cases  the  defendants,   the   sellers,  had  themselves   filled   up   a 


SECT.    VI.]  DURRELL   V.    EVANS. 


503 


printed  form,  with  their  names  printed  on  it  as  the  persons  of  whom 
the  purchase  was  made.  And  it  was  held  in  both  cases  that  the 
defendants  by  such  filling  u])  had  recognized  their  printed  names 
and  had  made  the  printing  equivalent  to  a  written  signature.  Lord 
Eldon,  C.  J.,  in  the  one  case,  says :  "  The  single  question  is  whether,  if  a 
man  be  in  the  habit  of  printing  instead  of  writirtg  his  name,  he  may  not 
be  said  to  sign  by  his  printed  name  as  well  as  his  written  name."  And 
Lord  Ellenborough,  C.  J.,  in. the  other,  says :  "  Here  there  is  a  signing 
by  the  party  to  be  charged  by  words  recognizing  the  printed  name  as 
much  as  if  he  had  put  his  mark  to  it,  Avhich  is  strictly  the  meaning  of 
signing,  and  by  that  the  ])arty  has  incorporated  and  avowed  the  thing 
printed  to  be  his."  In  Johnson  v.  Dodgson  it  is  clear  that  the  defend- 
ant meant  the  note  to  be  a  complete  contract  as  against  both  parties, 
and  it  was  written  by  himself  In  Bird  v.  Boulter  the  position  of  the 
clerk  who  signed  made  him  the  recognized  agent  of  the  purchaser  ; 
and  Farebrothcr  v.  Simmons,^  an  authority  somewhat  inconsistent,  is 
only  distinguishable  on  that  ground. 

[CEOMrxox,  J.  The  auctioneer  and  broker  are  held  to  bind  both  par- 
ties, because  they  are  known  and  recognized  as  the  agents  of  both.] 

Yes ;  because  in  transactions  in  which  auctioneers  and  brokers  act, 
the  principals  never  come  together.  Here  the  defendant  is  ]irescnt  and 
making  a  contract  on  his  own  behalf,  Noakes  acting  for  the  plaintiff. 
If  tliis  note  had  been  intended  to  be  binding  on  the  defendant,  Avould 
Noakes  have  handed  it  to  him?  The  asking  for  the  alteration  in  the 
date  is  simply  asking  for  more  credit ;  and  the  asking  that  the  altera- 
tion may  be  made  in  the  note  is  asking  for  such  credit  under  the  hand 
of  the  plaintiff  in  a  document  no  doubt  intended  to  contain  the  terms 
of  the  contract,  but  not  intended  to  be  drawn  up  on  behalf  of  the 
defendant.  It  is  precisely  the  case  of  going  into  a  shop  and  making  a 
purchase,  and  on  a  bill  being  handed  to  the  purchaser  with  terras  cash 
he  says,  Alter  this  into  a  month's  credit.  How  can  the  purchaser  by 
that  be  said  to  be  making  the  shopman  his  agent  to  contract  on  his 
behalf? 

Jones,  in  reply.  If  there  is  nothing  in  the  character  which  Noakes 
filled  to  prevent  him  from  being  the  agent  of  the  defendants,  the  facts 
conclusively  shew  that  he  was  employed  to  make  a  note  binding  on 
the  defendants  as  well  as  the  plaintiff. 

Crozmpton,  J.  In  this  case  a  verdict  for  the  plaintiff  Avas  consented 
to,  leave  being  reserved  to  enter  a  nonsuit ;  and  if  there  was  any  evi- 
dence to  go  to  the  jury  on  which  they  might  have  found  for  the  jilain- 
tiff,  the  verdict  must  stand,  and  the  rule  for  entering  a  nonsuit  be 
discharged.  I  certainly  was  at  first  struck  at  the  way  in  which  the 
case  Avas  put  by  my  brother  Wilde  in  the  court  below,  and  which  was 
adopted  by  the  rest  of  that  court  —  that  what  the  detendant  did  was 

1  5  B.  &  Aid.  333. 


504  DUREELL   V.    EVANS.  [CHAP.    I. 

simply  taking  an  invoice  and  asking  to  have  it  altered ;  and  if  the  jury 
had  found  that,  a  nonsuit  would  have  been  right.     But  I  cannot  agree 
with  my  brother  Wilde  and  Mr.  Lush  that  the  document  in  question 
was  merely  an  invoice  :  on  the  contrary  I  think  there  was  plenty  of 
evidence  to  go  to  the  jury  on  the  question  whether  Noakes  the  agent 
was  to  make  a  record  of  a  binding  contract  between  the  parties,  and 
that  there  was  at  least  some  evidence  from  which  the  jury  might  have 
found  in  the  affirmative.     One  of  the  defendants  having  seen  Noakes 
on  the  subject  of  the  purchase  of  the  hops,  afterwards  the  plaintiff  and 
the  defendant  meet  at  Noakes's,  and  Noakes  in  their  presence  writes  a 
memorandum  in  duplicate,  except  that  the  one  copy  has  "bought"  and 
the  other  "  sold,"  and  hands  that  which  has  "  Messrs.  Evans  bought " 
on  it  to  the  defendant ;  he  reads  it,  and  takes  it,  and  adopts  it  with 
the  alteration  of  the  date  which  he  had  wished  to  be  made,  and  which 
had  been  made  in  his  presence.     This  was  evidence  that  the  parties 
did  intend  a  binding  record  of  the  contract  should  be  made  and  that 
Noakes  was  the  agent  of  both  parties  to  make  such  a  binding  contract. 
That  being  so,  did  Noakes  do  this  ?     If  this  were  the  first  case  on  the 
Statute  of  Frauds  I  should  have  doubted  whether,  if  the  vendee  put 
his  name  at  the  top  of  the  document,  this  would  have  been  a  signing 
within  the  statute.     But  it  has  been  decided  that  it  does  not  signify 
where  the  name  is  put,  if  it  be  put  somewhere  on  the  document  by  the 
parties  themselves  who  are  to  be  bound  by  the  signature,  or  by  the  per- 
son havins:  authoritv  from  them  to  make  a  contract  on  their  behalf. 
Thus  in  Schneider  v.  Norris  the  defendant's  name  was  printed  at  the 
commencement  of  an  invoice  to  which  he  had  added  the  plaintiff's 
name,  and  which  he  handed  to  the  plaintiff,  and  it  was  held  sufficient ; 
and  it  seems  to  me  that,  when  it  is  once  established  that,  if  the  putting 
of  the  name  be  the  act  of  the  party,  that  is  sufficient  in  whatever  part 
of  the  document  the  name  may  be,  a  similar  act  of  an  agent  must  have 
the  same  effect.     This  case  comes  nearer  to  Johnson  v.  Dodgson  than 
Graham  v.  Musson.     In  the  former  case  the  defendant  wrote,  "  Sold  J. 
Dodgson"  (his  own  name)  so  and  so,  and  requested  the  plaintiff's 
agent  to  sign;  and  the  court  held  the  defendant  bound  by  a  signature  of 
this  nature ;  and  Parke,  B.,  says :  "  I  think  this  was  a  sufficient  memo- 
randum in  writinsf.    The  defendant's  name  was  contained  in  it  in  his  own 
handwriting,  and  it  was  signed  by  the  plaintiffs.     The  point  is  in  effect 
decided  by  the  cases  of  Saunderson  v.  Jackson  and  Schneider  v.  Norris. 
There  the  bills  of  parcels  were  held  to  be  a  sufficient  memorandum  in 
writing,  it  being  proved  that  they  were  i-ecognized  by  being  handed  over 
to  the  other  party.   Here  the  entry  was  written  by  the  defendant  himself, 
and  required  by  him  to  be  signed  by  the  plaintiff's  agent.   That  is  amj^ly 
sufficient  to  shew  that  he  meant  it  to  be  a  memorandum  of  contract 
between  the  parties."     In  the  present  case  the  writing  was  by  another 
in  the  presence  of  the  defendant,  but  in  every  other  point  it  is  the  same 


SECT.    VI.]  DURRELL   V.    EVANS.  505 

as  Johnson  v.  Dodgson.  In  that  case  the  defendant  never  meant  when 
he  put  his  name  that  the  signature  should  be  a  signature  within  the 
Statute  of  Frauds,  but  he  did  intend  to  make  a  memorandum  of  the 
contract.  So  here  it  Avas  clearly  meant  that  there  should  be  a  memo- 
randum of  the  contract  between  the  parties.  Lord  Abinger,  C.  B.,  in 
the  same  case,  Johnson  v.  Dodgson,  says  :  "  The  Statute  of  Frauds 
requires  that  there  should  be  a  note  or  memorandum  of  the  contract  in 
writing  signed  by  the  party  to  be  charged.  And  the  cases  have 
decided  that,  although  the  signature  be  in  the  beginning  or  middle  of 
the  instrument,  it  is  as  binding  as  if  at  the  foot  of  it ;  the  question 
being  always  open  to  the  jury,  Avhether  the  party  not  having  signed  it 
regularly  at  the  foot  meant  to  be  bound  by  it  as  it  stood,  or  whether 
it  was  left  so  unsigned  because  he  refused  to  complete  it.  But,  when  it 
is  ascertained  that  he  meant  to  be  bound  by  it  as  a  complete  contract, 
the  statute  is  satisfied,  there  being  a  note  in  Avriting  shcAving  the  terms 
of  the  contract,  and  recognized  by  him.  I  think  in  this  case  the 
requisitions  of  the  statute  arc  fully  complied  Avith."  That  seems  to  me 
directly  to  apply  to  the  present  case.  It  is  true  the  Avords  "  Messrs. 
Evans  "  were  not  Avritten  by  the  defendant  himself,  but  he  takes  the 
document  and  sees  the  name  Avritten  on  it,  and  then  returns  it  to 
Noakes  to  make  a  slight  but  important  alteration,  and  so  recognizes  it 
as  the  record  of  the  contract.  The  case  therefore  is  not  really  different 
in  principle  from  Johnson  v.  Dodgson  ;  for  sujjposing  the  person  sign- 
ing the  name  was  the  person  intended  by  him  Avhose  name  is  signed  to 
make  a  binding  contract  on  his  behalf,  it  follows  that  the  person  sign- 
ing Avould  have  sufficient  authority  to  put  the  signature ;  and  there  is 
nothinsf  in  anA'  of  the  cases  to  shew  that  it  must  be  proved  that  the 
person  signing  it  Avas  expressly  authorized  to  put  the  name,  or  that 
it  was  intended  to  put  the  name  as  a  binding  signature  Avithin  the 
Statute  of  Frauds  :  the  mere  writing  of  the  name  is  sufficient.  If 
Noakes  had  fonnally  signed  the  names  of  Evans  and  Durrell,  he  would 
clearly  have  had  authority  to  do  it ;  and  if  the  person  signing  is  the 
party  authorized  to  make  a  binding  contract,  that  is  sufficient,  although 
there  Avas  no  express  idea  at  the  time  that  he  should  sign.  Graham  v. 
Musson  had  some  weight  with  me  at  first;  but  on  examination  it  is  not 
so  near  the  present  case  as  Johnson  v.  Dodgson.  Graham  v.  jNIusson 
turned  on  the  nature  of  the  signature  by  the  clerk  Avhen  he  signed  his 
OAvn  nnnie :  he  did  not  sign  the  name  of  the  defendant  jMusson,  and  in 
signing  his  own  name  he  meant  to  sign  as  his  employer's,  the  })laintiff's 
agent,  and  not  as  the  defendant's.  If  he  had  signed  Musson's  name, 
the  case  Avould  have  been  within  the  authority  of  Bird  v.  Boulter,  and 
it  may  be  that,  even  as  it  was,  there  Avas  evidence  to  go  to  the  jury. 
Bird  V.  Boulter  is  strongly  in  the  plaintiff's  favor.  In  that  case  the 
auctioneer's  clerk  Avas  held  to  be  the  party  intended  and  impliedly 
authorized  to  act  as  agent  of  both  parties  merely  from  the  surrounding 


506  DURRELL   V,    EVANS.  [CHAP.   I. 

circumstances  of  the  case ;  and  the  writmg  by  him  of  the  name  of  the 
purchaser  was  held  sufficient,  although  it  was  never  intended  by  the 
purchaser  to  give  him  distinct  authority  to  make  a  signature  binding 
under  the  Statute  of  Frauds.  The  cases  of  a  broker  and  auctioneer, 
when  properly  considered,  shew  the  nature  of  the  thing ;  when  it  is 
shewn  from  the  course  of  trade  or  the  surrounding  circumstances  that 
the  persons  signing  are  the  persons  authorized  to  contract,  then  they 
are  the  persons  to  make  a  signature  binding  within  the  statute ;  and 
this  may  also  be  shewn  by  evidence  that  the  person  sought  to  be 
charged  afterwards  assumed  the  memorandum  to  be  a  binding  contract. 

It  may  be  that  if  the  jury  had  foimd  that  this  document  was  merely 
an  invoice,  and  was  treated  by  the  defendants  as  such,  the  defendants 
would  have  been  entitled  to  a  nonsuit;  but  if  there  was  any  evidence  to 
go  to  the  jury  of  the  contrary,  then  the  plaintiff  is  entitled  to  keep  his 
verdict.  We  think  that  there  was  evidence  (and  that  is  the  only  point 
on  which  we  differ  from  the  court  below)  that  Noakes  was  intended 
by  the  defendant  as  well  as  the  plaintiff  to  make  a  record  of  a  contract 
which  was  to  be  binding  upon  both. 

I  am  to  add  that  my  brother  Willes  ^  entertains  a  strong  view  the 
same  way ;  and  indeed  I  believe  he  is  of  opinion,  not  only  that  there 
was  evidence  to  go  to  the  jury,  but  that  the  verdict  ought  to  have  been 
for  the  plaintiff. 

Byles,  J.  I  am  of  the  same  opinion.  I  do  not  wish  to  go  through 
the  cases  on  the  subject,  but  I  cannot  help  stating  my  short  view  of  the 
effect  of  the  facts.  It  seems  to  me  that  there  was  evidence  sufficient 
to  sanction  a  verdict  for  the  plaintiff.  It  is  plain  that  the  signature, 
though  not  at  the  foot  of  the  document  but  at  the  beginning,  is 
abundantly  sufficient.  Then  in  the  first  place  was  the  plaintiff  bound 
by  what  Noakes  did  ?  The  Messrs.  Noakes  were  employed  by  him  as 
fi\ctors;  there  was  therefore  no  doubt  more  evidence  against  him  than 
against  the  defendants.  But  the  defendant  and  the  plaintiff  knew 
what  Noakes  was  doing.  What  does  the  defendant  do  ?  First  of  all 
he  sees  a  duplicate  written  by  the  hand  of  the  agent,  and  he  knows  it 
a  counterpart  of  that  which  was  binding  on  the  plaintiff:  he  knew 
what  was  delivered  out  to  him  was  a  sale  note  in  duplicate,  and  accepts 
and  keeps  it.  The  evidence  of  what  the  defendant  did,  both  before 
and  after  Noakes  had  wi'itten  the  memorandum,  shews  that  Noakes 
was  authorized  by  the  defendant ;  and  the  case  comes  directly  within 
the  terms  of  Lord  Abinger's  judgment  in  Johnson  v.  Dodgson, 

BLACKBURisr,  J.  I  also  am  of  opinion  that  there  was  evidence  on 
which  the  jury  might  have  found  that  the  memorandum  was  signed  on 
behalf  of  the  defendants  Messrs.  Evans  in  such  a  way  as  to  bind  them. 
Noakes  no  doubt  was  not  acting  as  broker  as  between  the  parties,  nor 
did  he  purport  to  deliver  bought  and  sold  notes :  in  which  case,  if 
1  Willes,  J.,  had  left  the  court  during  Lush's  argument. 


SECT.    VI.]  DURRELL   V.   EVANS.  507 

tlicie  had  been  a  variance  between  them,  there  Avould  have  been  no 
contract.  Thornton  v.  Kempster.^  Nevertheless  there  was  evidence 
from  which  the  jury  miglit  have  inferred  that  that  was  a  memorandum 
accordino:  to  the  decided  cases,  so  as  to  be  binding  within  the  Statute 
of  Frauds.  In  order  to  do  this  it  is  essential  that  there  sliould  be  a 
signature  made  by  an  agent  authorized  to  make  it.  Now  "Messrs. 
Evans"  was  written  by  Noakes  at  the  top  of  the  document.  If  the 
matter  were  res  Integra  I  should  very  much  doubt  whether  the  name 
so  written  would  be  a  sufficient  signature ;  but  in  Saunderson  v.  Jack- 
son, Lord  Eldon,  C.  J.,  recognized  as  law  that  the  name,  though  at  the 
beginning,  might  be  a  sufficient  signature,  and  it  is  now  too  late  to 
question  such  a  doctrine.  If  the  name  appears  on  the  contract,  and  be 
written  by  the  party  to  be  bound  or  by  his  authority,  and  issued  or 
accepted  by  him,  or  intended  by  him  as  the  memorandum  of  a  contract, 
that  is  sufficient.  In  Schneider  v.  Norris  and  Saunderson  v.  Jackson 
the  name  of  the  vendor,  the  person  sought  to  be  charged,  was  printed 
at  the  head  of  a  bill  of  parcels ;  and  in  Johnson  v.  Dodgson  the  docu- 
ment was  retained  in  the  defendant's  OAvn  possession,  but  there  was 
evidence  that  the  defendant  intended  that  it  should  be  the  memoran- 
dum of  the  contract,  and  it  wa«  held  binding  on  him,  though  there  was 
stronw  evidence  that  the  document  was  retained  by  the  defendant  in 
order  to  bind  the  other  side,  and  that  the  document  was  not  meant  by 
him  as  binding  himself,  and  as  a  voucher  to  the  other  side ;  and  that 
circumstance  it  is  important  to  observe  as  bearing  on  the  present  case, 
because  what  was  handed  to  the  defendant  Evans  was  not  meant  as  a 
voucher  to  the  other  side.  The  case  in  the  court  below  proceeded  on 
what  was  thrown  out  by  my  brother  Wilde;  and  I  agree  with  the  deci- 
sion of  that  court,  if  this  document  were  a  bill  of  parcels  or  an  invoice  in 
the  strict  sense,  viz.,  a  document  which  the  vendor  writes  out,  not  as  the 
account  of  both  parties,  but  as  being  the  account  of  the  vendor,  and  not 
a  mutual  account.  But  in  the  present  instance  I  cannot  as  a  matter  of 
course  look  at  this  instrument  as  an  invoice  or  bill  of  parcels,  as  intended 
only  as  the  vendor's  account.  Perhaps  I  should  draw  the  inference  that 
it  was;  but  it  is  impossible  to  deny  that  there  was  plenty  of  evidence 
that  the  instrument  was  written  out  as  the  memorandum  by  which,  and 
by  nothing  else,  both  parties  were  to  be  bound.  [The  learned  judge 
then  read  the  evidence  as  to  what  took  place  at  Noakes's  office.]  There 
certainly  was  evidence,  I  may  say  a  good  deal  of  evidence,  that  Noakes 
Avas  to  alter  this  writing,  not  merely  as  the  seller's  account,  but  as  a 
document  binding  on  both  sides.  When  therefore  we  get  the  name  of 
Evans  on  a  document  intended  to  be  a  memorandum  of  a  contract,  the 
case  is  identical  with  Johnson  v.  Dodgson,  except  only  that  the  defend- 
ant did  not  write  the  name  himself:  that  circumstance  however  affi:)rds 
no  solid  distinction,  except  as  to  the  weight  of  evidence ;  and  I  do  not 
see  any  reason  why  Johnson  v.  Dodgson  should  be  overruled.     In  that 

1  5  Taunt.  786. 


508  PARTON    V.    CROFTS.  [CHAP.    I. 

case  we  have  the  authority  of  two  great  judges ;  and  what  they  say  is 
that,  when  a  document  is  drawn  up  under  circumstances  like  the 
present,  it  is  a  question  for  the  jury  whether  the  party  sought  to  be 
charged  intended  to  be  bound  by  the  dociTment.  Graham  v.  Musson 
is  not  at  all  inconsistent  with  Johnson  v.  Dodgson.  In  Graham  v. 
Musson  the  name  of  the  defendant,  the  buyer,  did  not  api^ear  on  the 
document ;  the  signature  was  that  of  Dyson  the  agent  of  the  seller, 
put  there  at  the  request  of  Musson  the  buyer,  in  order  to  bind  the 
seller;  and  unless  the  name  of  Dyson  was  equivalent  to  that  of  Musson, 
there  was  no  signature  by  the  defendant ;  but  in  point  of  fact  "  J. 
Dyson"  was  equivalent  to  "for"  or  "^:)er  pro.  North  &  Co.,  J.  Dyson." 

Keating,  J.  I  am  of  opinion  that  the  judgment  should  be  reversed 
on  the  single  ground  that  there  was  evidence  to  be  submitted  to  the 
jury  to  shew  that  the  memorandum  was  written  by  the  authority  of 
the  defendant  in  the  terms  in  which  it  now  appears ;  and  if  written  by 
his  authority,  that  is  equivalent  to  its  having  been  written  by  himself; 
and  if  written  by  himself,  there  is  abundance  of  authority  (from 
Lemayne  v.  Stanley-^  downwards)  that  the  name  appearing  on  the 
face  of  the  document  is  a  sufficient  signing  within  the  statute. 

Melloe,  J.  I  am  of  the  same  opinion.  I  at  first  thought  that  the 
evidence  to  charge  the  defendants  was  not  sufficient;  but  that  was 
because  I  did  not  observe  that  the  question  was  whether  there  was 
evidence  to  go  to  the  jury,  and  that  the  jury  might  have  foimd  from 
the  facts  that  Noakes  was  clothed  with  authority  from  the  defendants. 
The  parties  themselves  were  present  when  this  document  was  drawn 
up,  and  Noakes  was  merely  scribe  ;  and  it  appears  to  have  been  drawn, 
not  as  a  mere  invoice,  but  as  a  binding  record  of  what  the  parties 
themselves  had  agreed  to.  I  agree  with  my  brothers  Crompton  and 
Blackburn  that  Grahain  v.  Musson  is  not  inconsistent  with  Johnson  v. 
Dodgson.  In  the  former  case  the  circumstances  failed  to  raise  the 
question  of  authority  which  is  raised  here,  and  on  which  our  judgment 
proceeds.  Judgment  reversed /  rule  discharged. 


PARTON,  Appellant,  v.   CROFTS,   Respondent. 
In  the  Common  Pleas,  February  3,  1864. 

[Reported  in  33  Law  Journal  Reports,  Common  Pleas,  189.] 

Appeal  from  the  decision  of  the  judge  of  the  County  Court  of  Lan- 
cashire, holden  at  Liverpool. 

1  "3  Lev.  1. 


SECT.    VI.]  PARTON   V.    CROFTS.  509 

The  action  was  brought  by  tlie  phiintiiF  (the  respondent  on  this 
appeal)  to  recover  £50  for  loss  and  damage  sustained  in  consequence 
of  tlie  non-performance  by  the  defendant  (the  apjjellant  on  this  appeal) 
of  a  contract  for  the  purchase  of  500  tons  of  Scotch  pig-iron,  and  was 
tried  at  tlie  said  County  Court  without  a  jury  on  9th  of  July,  1«G3, 
wlicn  the  following  evidence  was  given  on  the  part  of  the  plaintitt':  — 
On  the  25th  of  August,  186'2,  the  defendant  called  on^lessrs.  Bentley, 
Blain,  &  Co.  of  Liverpool,  brokers  (introduced  and  accompanied  by  a 
Mr.  M'Monnies),  and  statcil  tliat  he  wished  to  make  a  purchase  through 
them  of  Scotch  pig-iron  to  the  extent  of  '2000  tons.  Mr.  Bentley  (Mr. 
Blain  his  ])artner  being  ])resent  at  the  interview)  told  the  defendant 
that  he  tliought  they  could  buy  the  quantity  he  wished ;  but  that  they 
would  make  inquiries.  The  defendant  then  asked  and  was  told  the 
day's  prices,  namely,  58s.  a  ton  ;  and  he  was  also  told  that  there  would 
be  an  immediate  deposit  payable  of  bs.  a  ton  :  in  answer  to  which  last 
remark  he  said  that  he  was  aware  of  the  fact.  Mr.  Bentley  added  that 
the  market  that  day  was  strong,  and  that  the  defendant  before  giving 
instractions  to  purchase  had  better  make  his  own  inquiries  elsewhere, 
and  return  to  their  office  after  he  had  done  so.  The  defendant  said 
that  it  was  not  necessary  for  him  to  make  other  inquiries,  as  he  was 
satisfied  to  leave  the  matter  in  the  hands  of  Bentley,  Blain,  &  Co. ;  and 
he  instructed  Mr.  Bentley  to  buy  (and  acting  on  these  instructions  Mr. 
Bentley  did  buy)  for  him  2000  tons  of  Scotch  pig-iron  on  the  terms 
which  arc  embodied  in  the  contract  notes  hereinafter  referred  to. 

At  the  date  of  this  conversation  Messrs.  Bentley,  Blain,  &  Co.  had 
instructions  from  the  plaintiff  to  sell  as  his  brokers  500  tons  of  Scotch 
pig-iron,  his  ju'operty,  tlien  lying  in  GlasgOAV.  They  had  similar  instruc- 
tions from  other  principals  with  regard  to  further  quantities  of  the  same 
description  of  iron ;  their  instructions  extending  to  more  than  2000 
tons.  Mr.  Bentley  explained  that  to  a  certain  extent  his  firm  knew 
what  they  could  do  as  to  the  sale ;  and  that  Avhat  he  meant  when  he 
told  the  defendant  they  would  inquire  was,  that  they  would  inquire 
from  their  principals  whether  they  would  accept  the  price  named ;  and 
this  reference,  Mr.  Bentley  added,  a])])lied  to  the  whole  quantity  as  to 
which  they  had  instructions  for  sale.  No  question  was  asked  at  the 
trial  as  to  how  and  when  this  reference  was  had.  The  plaintiff  lived 
in  Liverpool. 

In  the  course  of  the  afternoon  of  the  same  day  Messrs.  Bentley, 

Blain,  &  Co.  sent  the  defendant  a  letter  enclosing  two  contract  notes 

for  (in  the  whole)  2000  tons,  one  of  such  notes  being  for  1500  tons, 

and  the  other  for  the  plaintiff's   500  tons,  the  subject-matter  of  this 

•  action. 

The  above  letter  and  the  contract  note  in  question  were  produced 
by  the  defendant,  and  put  in  evidence  by  the  plaintiff.  The  letter  was 
in  these  terms:  — 


510  -  PARTON   V.    CROFTS.  [CHAP.    I. 

S.  Parton,  Esq. 

Dear  Sir,  —  Enclosed  please  find  contract  notes  for  2000  tons  Scotch  pig- 
iron,  purchased  this  day  on  your  account. 

Bentley,  Blain,  &  Co. 

The  contract  note  was  in  these  terms :  — 

^  5  York  Buildings,  Liverpool,  25th  of  August,  1862. 

Sold  to  S.  Parton,  Esq.,  on  account  of  principals,  500  tons  Scotch  pig-iron  of 
good  merchantable  brands,  three-fifths  No.  1,  and  two-fifths  No.  3,  at  57s.  9(Z. 
per  ton,  delivered  in  Glasgow ;  payment  by  05.  per  ton  deposit  at  once,  and  the 
balance  of  52s.  9(1  per  ton  net  cash  in  Glasgow  on  or  before  21st  November 
next,  in  buyer's  option,  on  giving  seven  days'  notice,  against  storekeepers'  war- 
rants for  the  delivery  of  the  iron. 

Bentley,  Blaen,  &  Co. 

It  was  stated  by  Mr.  Bentley  that  a  contract  note  of  the  same  date 
as  the  above,  and  relatmg  to  the  same  500  tons  of  iron,  was  sent  by  the 
firm  to  the  plaintiff,  for  whom  as  well  as  for  the  defendant  Messrs. 
Bentley,  Blain,  &  Co.  acted  as  brokers  in  the  transaction.  That'  con- 
tract note  was  not  tendered  in  evidence  by  the  plaintiff;  nor  had  any 
notice  to  produce  it  been  given  by  the  defendant. 

There  was  no  further  evidence  of  any  entry  or  memorandum  of  the 
transaction.  The  defendant  did  not  pay  the  deposit  according  to  the 
terms  of  the  contract  note,  but  promised  payment  in  a  few  days. 
Ultimately  however  he  refused  to  pay  such  deposit  or  to  accept  the 
iron,  delivery  of  which  it  was  admitted  on  the  trial  had  been  duly 
offered.  In  the  mean  time  the  market  was,  and  continued  to  be,  a  fall- 
ino-  market.  It  was  also  admitted  that,  if  the  plaintiff  were  entitled  to 
recover,  he  was  entitled  to  a  verdict  for  the  amount  claimed. 

For  the  defence  the  defendant  was  examined ;  and  he  denied  that 
any  such  conversation,  on  the  25th  of  August  or  at  any  time,  as  that 
spoken  to  by  Mr.  Bentley  and  Mr.  Blain,  so  far  as  related  to  himself, 
had  occun-ed,  or  that  he  had  given  any  instructions  for  the  purchase  of 
iron ;  and  he  added  that  the  instructions  given  were  by  Mr.  M'Mon- 
nies,  and  on  his  sole  and  separate  account. 
.  M'Monnies  was  not  called. 

It  was  objected  on  the  part  of  the  defendant  that  the  documents 
above  set  out  did  not  constitute  a  sufficient  note  or  memorandum  of 
the  bargain  to  satisfy  the  17th  section  of  the  Statute  of  Frauds  ;  and 
on  the  evidence  it  was  contended  on  his  behalf  that  Messrs.  Bentley, 
Blain,  &  Co.,  even  if  their  version  of  the  facts  was  accepted  as  true, 
were  and  acted  as  factors,  not  brokers,  in  the  transaction. 

The  judge  found  as  a  fact  on  the  evidence  that  Bentley,  Blain,  &  Co. 
were  and  acted  as  brokers  in  the  transaction,  and  that  they  were 
authorized  as  the  defendant's  agents  to  make  the  contract  referred  to  J 
and  he  held  as  matter  of  law  that  the  documents  set  out  were  suffi- 


SECT.    VI.]  PARTON   V.    CROFTS.  511 

cient  to  satisfy  the  17th  section  of  the  Statute  of  Frauds.     A  verdict 
was  thereupon  entered  for  the  plaintift"  for  £50. 

The  question  for  the  opinion  of  the  Court  of  Common  Pleas  was, 
whether  upon  the  facts  found  by  the  judge  he  was  right  in  point  of  law 
in  his  determination. 

Quam,  for  the  appellant.    It  was  not  sufficient  for  the  plaintiff  in  the 
action  to  produce  only  the  sold  note  which  had  been  sent  to  the  defend- 
ant, the  buyer  j  the  plaintiff  ought  to  have  produced  the  note  which  he 
had  received,  and  which  therefore  was  in  his  possession,  or  to  have 
accounted  for  its  absence,  as  without  doing  so  he  had  not  produced  the 
whole  contract.     In  Sievewright  v.  Archibald  ^  it  was  decided  by  the 
majority  of  the  Court  of  Queen's  Bench  that  the  bought  and  sold  notes 
constitute  one  contract.    The  ease  of  Hawes  v.  Forster,^  in  which  Lord 
Denman  at  the  first  trial  held  that  the  bought  note  produced  by  the 
buyer  was  sufficient  evidence  of  the  contract,  is  explained  by  Patteson, 
J.,  in  Sievewright  v.  Archibald ;  and  in  that  last  case  Lord  Campbell 
said :  "  What  are  called  the  bought  and  sold  notes  were  sent  by  the 
broker  to  his  principals  by  way  of  information  that  he  had  acted  upon 
their  instructions,  but  not  as  the  actual  contract  which  was  to  be  bind- 
ing upon  them.     This  clearly  appears  fi'om  the  j^ractice  still  followed 
of  sending  the  bought  note  to  the  buyer,  and  the  sold  note  to  the  seller ; 
whereas  if  these  notes  had  been  meant  to  constitute  the  contract,  the 
bought  note  would  be  put  into  the  hands  of  the  seller,  and  the  scld 
note  into  the  hands  of  the  buyer,  that  each  might  have  the  engagement 
of  the  other  party  and  not  his  own."     If  these  agree,  they  are  held  to 
constitute  a  binding  contract ;  if  there  be  any  matei'ial  variance  between 
them,  they  are  both  nullities,  and  there  is  no  binding  contract.     In 
Cowie  V.  Remfry  ^  it  was  held  by  the  judicial  committee  of  the  Privy 
Council  that  the  sold  note  alone  did  not  form  a  binding  contract.    Next, 
the  sold  note  which  was  produced  was  signed  by  Bentley  &  Co.  as  the 
agents  for  the  plaintiff,  the  seller  only ;  and  it  was  therefore  not  the 
memorandum  of  the  contract  signed  by  the  defendant  or  his  agent,  and 
consequently  there  was  no  sufficient  contract  to  satisfy  the  Statute  of 
Frauds. 

C.  jRussell,  for  the  respondent.  Tlie  note  was  evidence  of  the  con- 
tract. The  case  of  Sievewi'ight  v.  Archibald  did  not  decide  that  the 
contract  is  constituted  by  the  boiight  and  sold  note,  but  that,  as  there 
was  in  that  case  a  discrepancy  between  the  two  notes,  there  was  no 
binding  contract  to  satisfy  the  Statute  of  Frauds.  The  only  case 
touching  this  point  is  that  of  Hawes  v.  Forster,  Avhere  Lord  Denman 
■  ruled  that  the  plaintiffs  jjroved  the  contract  by  producing  the  bought 
note  signed  by  the  broker  engaged  by  the  defendants,  and  that  the 
plaintiffs  were  not  called  upon  to  give  any  evidence  of  the  sold  note 

1  17  Q.  B.  Rep.  103 ;  s.  c.  20  Law  J.  Eep.  (n.  s.)  Q.  B.  529. 

2  1  Moo.  &  R.  368.  3  5  Moo.  P.  C.  232. 


512  PARTON   V.    CROFTS.  [CHAP.   I. 

delivered  by  the  broker  to  the  defendants,  holding  that  if  the  notes 
varied  it  was  for  the  defendants  to  prove  such  variance  by  producing 
the  sold  note.  Though  the  court  afterwards  granted  a  new  trial,  they 
refused  to  make  absolute  a  rule  to  enter  a  nonsuit,  and  did  not  in  fact 
overrule  the  above  ruhng  of  Lord  Denman.  With  respect  to  the 
objection  that  the  note  produced  was  not  signed  by  the  agents  of  the 
defendant,  it  is  submitted  that,  Bentley  &  Co.  being  his  authorized 
agents  as  found  by  the  case,  it  was  sufficient  that  the  note  was  signed 
by  them,  and  it  did  not  matter  with  what  intention  such  signature 
was  put.  Schneider  v.  Norris,^  Durrell  v.  Evans,^  and  Bailey  v. 
Sweeting.^ 

Quam,  in  reply. 

Erle,  C.  J.  I  am  of  opinion  that  the  judgment  of  the  County 
Court  judge  was  right.  The  action  was  for  not  accepting  goods  sold 
by  the  plaintiff  to  the  defendant.  It  is  clear  from  the  facts  found  by 
the  County  Court  judge  that  Bentley  &  Co.  the  brokers  were  employed 
as  such  by  both  the  buyer  and  the  seller.  The  buyer  proposed  to 
take  the  iron,  the  subject  of  the  action,  at  a  certain  price,  and  that 
price  was  accepted  by  the  seller ;  and  in  my  opinion  the  broker  was 
the  common  agent  of  both  parties,  and  had  authority  to  make  and  so 
made  the  contract  between  them.  The  question  which  we  have  to 
determine  is,  whether  the  requisites  of  the  Statute  of  Frauds  have 
been  complied  with;  that  is  to  say,  whether  there  has  been,  as  required 
by  that  statute,  a  memorandum  in  writing  of  the  contract.  I  am 
careful  in  drawing  the  distinction  between  making  a  contract  and  a 
memorandum  shewing  that  the  contract  has  been  made,  and  which 
may  be  made  much  later  than  the  contract.  In  the  present  case  the 
memorandum  of  the  contract  which  was  produced  was  signed  by  the 
brokers,  who  were  agents  for  both  parties ;  and  it  stated  that  the  iron 
was  sold  to  the  defendant,  and  specifies  the  price.  Mr.  Quain  says 
that  the  usual  form  of  handing  the  bought  note  to  the  purchaser  and 
the  sold  note  to  the  seller  was  not  complied  with  here  by  the  brokers, 
and  that  the  only  one  of  the  two  instruments  which  was  produced 
was  not  sufficient  to  satisfy  the  statute.  I  am  of  opinion  that  the  note 
produced  contained  a  memorandum  of  the  contract  between  the 
parties,  signed  by  their  agents  lawfully  authorized  as  required  by  the 
statute.  It  is  said  that  the  note  has  only  the  term  "  sold,"  and  has 
not  the  term  "  purchased,"  but  the  relation  of  buyer  and  seller  cannot 
come  into  existence  without  there  has  been  a  purchase  as  well  as  a 
sale ;  and  when  therefore  the  memorandum  says  "  sold,"  it  in  effect  says 
also  bought.     In  Sievewright  v.  Archibald  *  the  bought  and  sold  notes 

1  2  M.  &  S.  286. 

2  30  Law  J.  Rep.  (n.  s.)  Exch.  254  ;  s.  c.  6  Hurl.  &  N.  660. 

3  30  Law  J.  Rep.  (n.  s.)  C.  P.  150 ;  s.  c.  9  Com.  B.  Rep.  (n.  s.)  843. 
*  17  Q.  B.  Rep.  103;  s.  c.  20  Law  J.  Rep.  (n.  s.)  Q.  B.  529. 


SECT.    VI.]  GIBSON   V.    HOLLAND.  513 

differed,  and  so  tire  sufficiency  of  the  memorandum  of  the  contract 
was  defeated ;  but  liere  only  one  of  the  notes  was  produced,  which 
therefore  distinguishes  this  case  from  that  of  SieveAvn-ight  v.  Archi- 
bald. I  am  of  opinion  that  it  is  enough  for  the  plaintiff  to  produce 
in  evidence  one  of  the  notes  signed  by  a  person  acting  as  agent  for 
both  parties,  and  I  think  that  the  County  Court  judge  came  to  a  right 
conclusion. 

Williams,  J.  I  am  of  the  same  opinion.  It  appears  that  Bentley 
&  Co.  were  constituted  by  the  defendant  as  his  agents  to  purchase  the 
iron  for  him  on  certain  terms ;  and  I  think  if  the  Statute  of  Frauds 
had  never  been  passed  there  was  clearly  evidence  of  a  sale  to  the 
defendant  of  the  iron  on  the  terras  stated  in  the  sold  note.  Then  is 
there  any  thing  in  that  statute  which  makes  it  invalid?  I  think  not, 
for  I  think  the  sold  note  is  a  memorandum  in  writing  of  the  contract, 
and  that  it  was  signed  by  the  authorized  agents  of  the  defendant.  My 
brother  Keating  has  gone  to  chambers,  but  he  desired  me  to  state 
that  he  concurs  in  this  judgment. 

WiLLES,  J.  I  think  also  that  every  thing  has  been  done  which  the 
Statute  of  Frauds  requires.  If  in  ordinary  practice  the  bought  and 
sold  notes  were  different  things,  there  might  be  some  ground  for 
Mr.  Quain's  argument ;  but  it  is  avcII  known  that  in  ordinaiy  i)ractice 
they  are  identical,  the  one  being  a  copy  of  the  other,  and  therefore  it 
would  be  a  violent  assumption  to  assume  in  favor  of  the  defendant 
that  the  bought  note  was  a  very  different  one  from  the  sold  note, 
which  had  been  delivered  to  the  defendant  and  produced  by  him  at 
the  trial.  For  these  reasons  I  agree  witli  what  was  held  by  Lord 
Denman  on  the  first  trial  of  Hawes  v.  Forster,  and  that  the  one  note 
put  in  evidence  is  to  be  presumed,  until  the  contrary  be  shewn,  to 
represent  the  contract  between  the  parties. 

Judgment  for  the  responderd. 


GIBSON  AND  Another  v.  HOLLAND. 
In  the  Common  Pleas,  November  9,  1865. 

[Reported  in  Law  Reports,  1  Common  Pleas,  1.] 

Tins  was  an  action  to  recover  the  price  of  a  horse  bargained  and 
sold  by  the  plaintiffs  to  the  defendant. 

Plea,  never  indebted. 

The  cause  was  tried  before  Willes,  J.,  at  the  Devonshire  summer 
assizes.  The  plaintiffs,  Gibson  and  Luke,  are  horse  dealers  at  Exeter. 
VOL.  I.  83 


514  GIBSON   V.    HOLLAND.  [CHAP.    I. 

The  defendant  is  a  gentleman  who  occasionally  deals  in  horses. 
Having  heard  from  one  Rookes,  a  horse  dealer  of  Exeter,  that  the 
plaintiifs  had  a  mare  which  was  likely  to  suit  him,  and  having  seen 
and  approved  of  her,  the  defendant  authorized  Rookes  to  buy  her  for 
him,  if  he  could,  for  forty  guineas.  Rookes  accordingly  made  the 
purchase  at  that  price,  and  communicated  that  fact  to  the  defendant  in 
a  letter,  as  follows :  — 

15th  May,  1865. 
I  have  heard  from  Mr.  Gibson  and  seen  Tom  Luke  this  morning  respecting 
the  bay  mare,  and  have  bought  her  for  forty  guineas.     Will  you  therefore  for- 
ward me  your  cheque,  with  instructions  how  she  is  to  be  sent? 

Wm.  Kookes. 

Receiving  no  reply,  Rookes  addressed  the  following  letters  on  the 
20th  and  23d  of  May,  1865,  respectively,  to  the  defendant:  — 

I  wrote  you  on  Monday  last  to  say  I  had,  in  accordance  with  your  request, 
purchased  Mr.  Gibson's  bay  mare  for  you  at  forty  guineas,  requesting  you  would 
send  me  a  cheque,  with  instructions  how  to  forward  her.  Not  having  received 
any  reply,  I  fear  you  must  have  been  absent.  Please  send  me  cheque  at  once, 
with  necessary  instructions. 

Wm.  Kookes. 

I  cannot  but  express  my  surprise  at  not  having  received  any  reply  to  my 
letters  of  the  15th  and  20th.  In  the  first  I  informed  you  that  I  had  purchased 
Mr.  Gibson's  bay  mare ;  and  in  the  second  I  asked  you  to  send  a  cheque  for  the 
same,  viz.,  £42,  in  order  that  I  may  settle  with  him.  Mr.  Luke  has  called  again 
this  morning ;  and  it  makes  me  look  very  foolish,  as  of  course  they  look  to  me 
to  fulfil  my  contract ;  and  I  hope  that  you  will  on  the  receipt  of  this  send 
me  the  cheque,  with  the  necessary  instructions  how  the  mare  is  to  be  for- 
warded. 

Wm.  Rookes. 

On  the  25th  of  May,  1865,  the  defendant  wrote  to  Rookes,  as 
follows :  — 

I  only  returned  home  yesterday  evening,  or  I  should  have  at  once  answered 
your  first  letter,  and  sent  you  a  cheque  for  the  mare  which  you  were  kind  enough 
to  buy  for  me.  I  am  glad  to  say  I  have  sold  her  to  Mr.  Toynbee.  When  I 
told  him  of  her,  he  said  he  knew  her  well,  and  would  buy  her  from  me,  which  he 
did ;  and  you  will  receive  a  cheque  for  her  from  me  by  this  evening's  post. 

C.  Holland. 

On  the  26th  of  May,  Rookes  wrote  in  reply  to  the  last  letter :  — 

Mr.  Toynbee  has  never  seen  the  mare  that  you  have  purchased.  The  one  he 
alludes  to  I  sold  Mr.  Gibson  for  Sir  L.  P.,  and  she  is  not  for  sale  at  any  price. 
You  will  therefore  please  to  rectify  this  mistake,  and  send  me  your  cheque,  as 
it  is  a  fortnight  to-morrow  since  I  bought  her  for  you,  and  she  has  been  standing 
at  livery  ever  since. 

Wm.  Rookes. 


SECT.    VI.]  GIBSON   V.    HOLLAND.  515 

On  the  10th  of  June,  Rookes  wrote  again  to  the  defendant :  — 

Mr.  Gibson  and  Mr.  Lrike  called  here  this  afternoon  ;  and  as  they  have  both 
failed  in  seeing  you  in  London,  tlu-y  now  call  upon  ine  to  complete  my  con- 
tract for  the  sale  of  the  mare.  You  are  fully  aware  that  you  commissioned  me 
to  buy  tlie  mare  for  you  ;  and  had  I  thought  tliere  would  have  been  any  trouble 
or  annoyance,  I  should  have  had  nothing  to  do  with  it ;  but,  simply  acting  as 
your  agent,  I  must  request  that  you  will  at  once  remit  me  your  cheque  for  £42, 
cost  price,  together  with  half  the  keep,  two  guineas,  as  it  is  a  month  ago  next 
Monday  that  I  bought  her  for  you,  and  she  has  been  standing  at  livery  ever 
since,  and  they  have  a  pei-fect  right  to  claim  the  whole  of  the  keep. 

Wm.  Rookes. 

On  the  16th  of  June,  Rookes  again  wrote  to  the  defendant :  — 

Messrs.  Gibson  &  Luke  have  been  and  seen  me  again  to-day  respecting  the 
bay  mare  which  you  told  me  to  purchase  from  them  for  you ;  and  they  have 
threatened  uie  with  an  action,  &c. 

Rookes,  having  on  the  17th  of  June  received  a  letter  from  the 
plaintiffs'  attorneys,  demanding  jiayment  from  him  of  £46  alleged  to 
be  due  from  him  for  a  brown  mare  sold  by  them  to  him,  and  her  keep, 
sent  it  to  the  defendant,  writing,  — 

This  morning's  post  brought  me  the  enclosed  from  Messrs.  Gibson  &  Luke's 
solicitors :  I  really  do  hope  that  you  will  not  allow  me  to  be  put  to  any  further 
trouble  or  .annoyance  in  this  most  unpleasant  matter,  but  at  once  remit  your 
cheque  either  to  me.  [»Sic.]  If  they  sue  me,  I  have  no  alternative  but  to  sue 
them  or  you. 

On  the  part  of  the  defendant  it  was  objected  that  there  was  no 
contract  in  writing  to  satisfy  the  17tli  section  of  the  Statute  of 
Frauds.  For  the  plaintiffs  it  was  insisted  that  the  correspondence 
amounted  to  a  contract,  or  at  all  events  to  a  sufficient  memorandum 
of  a  contract  to  charge  the  defendant. 

Under  the  direction  of  the  learned  judge  a  verdict  was  found  for 
the  plaintiffs  for  the  sum  claimed,  reserving  to  the  defendant  leave  to 
move. 

Karslcike^  Q,  C,  moved  to  enter  a  nonsuit.  It  is  submitted  that  the 
correspondence  between  the  defendant  and  Rookes  did  not  amount  to 
a  contract  between  the  former  and  the  plaintiffs,  whatever  might  have 
been  the  case  had  Rookes  been  suing ;  and  that  there  was  not  even 
a  memorandum  of  the  contract  signed  by  Rookes  as  the  defendant's 
agent. 

[Ekle,  C.  J.  Suppose  the  defendant  had  written  to  Rookes 
acknowledging  the  contract  made  by  the  latter  on  his  behalf"  woidd 
not  that  have  been  a  sufficient  memorandum  in  writing  of  the  bargain 
to  satisfy  the  statute  ?] 


516  GIBSON    V.    HOLLAND.  [CHAP.    I. 

It  is  submitted  that  it  would  not.  In  equity  it  has  been  said  that 
an  admission  of  a  contract  contained  in  a  letter  written  to  a  third 
person  will  be  a  sufficient  memorandum  to  satisfy  the  requirement 
of  the  4th  section.  Sugden's  V.  &  P.  (11th  ed.)  122,  cited  arguendo 
in  Leroux  v.  Brown.-^  But  at  law  to  satisfy  the  17th  section  there 
must  be  complete  evidence  of  the  contract  in  writing,  —  a  vendor,  a 
vendee,  the  subject-matter,  and  the  price.  In  no  part  of  the  corre- 
spondence here  relied  on  is  there  any  admission  of  any  bargain  made 
by  the  defendant  with  the  plaintiifs.  At  the  utmost  it  only  amounts 
to  an  admission  of  liability  to  Rookes. 

[WiLLEs,  J.  In  Bailey  v.  Sweeting  -  this  court  held  a  letter,  which 
contained  an  admission  of  the  bars^ain  and  of  all  the  substantial  terms 
of  it,  to  be  a  sufficient  memorandum  to  satisfy  the  17th  section, 
although  the  writer  at  the  same  time  repudiated  his  liability.  The 
correspondence  here  states  a  purchase  of  the  horse  from  the  plaintiffs 
under  circumstances  which  made  the  defendant  the  principal;' and  the 
defendant  admits  that,  and  promises  to  send  a  cheque.  I  think  there 
was  evidence  that  Rookes  was  the  agent  of  both  parties.] 

[Erle,  C.  J.  Putting  all  the  lettei-s  together,  there  is  a  writing  in 
which  the  contracting  party  who  is  sued  states  to  his  agent  that  a  con- 
ti"act  has  been  made  on  his  behalf  for  the  purchase  of  the  plaintiffs' 
bay  mare  for  £42.  Is  not  that  a  sufficient  note  or  memorandum  in 
writing  of  the  contract  ?] 

It  only  amounts  to  an  acknowledgment  of  liability  to  Bookes,  the 
person  to  whom  the  defendant's  letters  are  addressed,  not  to  a  memo- 
randum of  a  contract  such  as  the  statute  requires. 

Erle,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule.  The 
contract  for  the  purchase  of  the  mare  in  question  was  made  by  Rookes. 
If  Rookes  was  the  agent  of  both  parties,  there  was  nothing  to  reserve  ; 
therefore  I  place  no  reliance  on  that.  But  I  am  of  opinion  that  the 
letters  put  in,  taken  together,  do  amount  to  a  sufficient  note  or  memo- 
randum of  the  contract  within  the  17tli  section  of  the  Statute  of 
Prauds.  Apart  from  the  statute,  it  is  beyond  doubt  that  Rookes  made 
a  contract  on  behalf  of  the  defendant  to  buy  the  plaintiffs'  mare. 
The  defendant  relies  upon  the  17th  section,  which  enacts  that  no  con- 
tract for  the  sale  of  any  goods,  &c.,  for  the  price  of  £10  or  upwards, 
shall  be  allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the 
goods  so  sold  and  actually  receive  the  same,  or  give  something  in 
earnest  or  part  payment,  or  unless  "  some  note  or  memorandum  in 
writing  of  the  said  bargain  be  made  and  signed  by  the  parties  to  be 
charged  by  such  contract  or  their  agents  thereunto  lawfully  author- 
ized." The  defendant's  letters  amount  to  a  clear  admission  that 
Rookes  did  make  on  his  behalf  the  contract  which  is  described  in  that 

1  12  C.  B.  801,  818 ;  22  L.  J.  (C.  P.)  1. 
•i  9  C.  B.  (n.  s.)  843,  30  L.  J.  (C.  P.)  150. 


SECT.    VI.]  GIBSON   V.    HOLLAND.  517 

correspondence.     But  the  objection  relied  on  is  that  the  note  or  mem- 
orandum of  that  contract  was  a  note  passing  between  the  defendant, 
the  party  sought  to  be  charged,  :ind  his  own  agent,  and  not  between 
the  one  contracting  party  and  the  other.     The  object  of  the  Statute 
of  Frauds  was  the  prevention  of  i)erjury  in  the  setting  up  of  contracts 
by  parol   evidence,  which    is   easily   fabricated.      With  this  view   it 
requires  the  contract  to  be  proved  by  the  production  of  some  note  or 
memorandum  in  writing.      Now  a  note  or  memorandum  is  equally 
corroborative,  whether  it  passes  between  the  parties  to  the  contract 
themselves  or  between  one  of  them  and  his  own  agent.     Indeed  one 
would  incline  to  think  that  a  statement  made  by  the  party  to  his  own 
agent   would   be   the   more   satisfactory  evidence  of   the  two.     Then 
how  stand  the  authorities  on  the  subject?    In  Leroux  ?;.  Browii,Mn 
support  of  the  position  that  a  letter  addressed  by  the  defendant  to 
a  third  person,  containing  an  admission  of  a  contract  with  the  ulain- 
tilF,  will  be  enough  to  charge  the  former,  Sir  G.  Honymau  refers   to 
Sugden's  V.  &  P.  (11th  ed.)  122,  where  it  is  said  that  "  a  note  or  letter 
written  by  the  vendor  to  any  third   person,  containing  directions  to 
carry  the  agreement  into  execution,  will  be  a  sufficient  agreement  to 
take- a  case  out  of  the  statute;"  and   for  this   the   learned    author 
vouches  Lord   Hardwicke,  who  in  Welford  v.  Beazely  ^  says  :     ''  The 
raeaninjr  of  the  statute  is  to  reduce  contracts  to  a  certainty,  in  order 
to  avoid  perjury  on  the  one  hand  and  fraud  on  the  other;  and   there- 
fore, both  in  this  court  and  the  courts  of  conmion  law,  where  an  agree- 
ment has  been  reduced  to  such  a  certainty,  and  the  substance  of  the 
statute  has  been  complied  with  in  the  material  part,  the  forms  have 
never  been  insisted  on.     Hawkins  v.  Holmes.^     There  have  been  cases 
where  a  letter  written  to  a  man's  own  agent,  and  setting  forth  the 
terms  of  an  agreement  as  concluded  by  him,  has  been  deemed  to  be  a 
sis^nincr  within  the  statute,  and   agreeable  to  the  provisions  of  it."  * 
Sir  E.  Sugden  goes  on  to  say  that  "the  point  was  expressly  determmed 
in  the  year  1719  in  the  Court  of  Exchequer.     Upon  an  agreement  for 
an  assignment  of  a  lease,  the  owner  sent  a  letter  specifying  the  agree- 
ment to  a  scrivener,  with  directions  to  draw  an  assignment  jmrsuant 
to  the  agreement;   and  Chief  Baron   Bury,  Baron  Price,  and  Baron 
Page  were  of  opinion  that  the  letter  was  a  writing  within  the  Statute 
of  Frauds."     Smith  v.  Watson.^     These  cases,  it  is  true,  arose  upon 
the  4th  section  of  the  statute,  but  the  analogy  holds  equally  good  as 
to  the  17th  section.     In  the  case  referred  to  by  my  brother  Willos,  of 
Bailey  v.  Sweeting,*^  this  court  went  very  fully  into  the  general  doc- 
trine, and  came  to  the  conclusion  that  a  letter  which  contained   an 
admission  of  the  bargain,  and  of  all  the  substantial  terms  of  it,  was  a 

M2C.  B.  818.  22L.  J.  (C.  P.)  1.  -  3  Atk.  503  3  i  p.  Wms.  770. 

*  See  Clerk  r.  Wright,  1  Atk.  12.  5  Bunb.  55. 

«  9  C.  B.  (N.  s.)  843,  30  L.  J.  (C.  P.)  150. 


518  GIBSON   V.    HOLLAND.  [CHAP.    T. 

sufficient  note  or  memorandum  of  the  contract  to  satisfy  the  17th 
section,  notwithstanding  the  writer  repudiated  his  liability.  To  satisfy 
the  statute,  you  must  have  the  oral  statement  of  the  contract  corrobo^ 
rated  by  an  acceptance  of  part  of  the  goods  or  a  part  payment  of  the 
price,  or  you  must  have  some  note  or  memorandum  in  wi-iting  of  the 
bargain.  If  so,  the  danger  of  peijury,  which  the  statute  was  designed 
to  exclude,  is  abundantly  guarded  against  if  there  be  a  written  state- 
ment of  the  terms  of  the  contract,  signed  by  the  party  to  be  charged, 
made  to  an  agent.  For  these  reasons  I  feel  bound  to  hold  that  the 
requirements  of  the  statute  have  been  complied  with  in  this  case,  and 
consequently  that  there  should  be  no  rule. 

WiLLES,  J.  I  agree.  The  statute  in  §  17  imposes  it  as  a  condi- 
tion to  the  validity  of  a  contract  for  the  sale  of  goods  for  the  price 
of  £10  and  upwai-ds,  either  that  there  shall  be  an  acceptance  of  part 
of  them,  or  that  something  shall  be  given  as  earnest  or  in  part  pay- 
ment of  the  price,  or  that  there  shall  be  some  note  or  memorandum 
in  writing  of  the  bargain,  signed  by  the  party  to  be  charged  or  by  his 
lawfully  authorized  agent.  Whether  Rookes  was  the  agent  of  the 
plaintiffs  as  well  as  of  the  defendant,  I  do  not  stop  to  inquire.  But  I 
think  the  series  of  letters,  read  together,  contains  a  statement  of  the 
bargain,  and  an  admission  by  the  defendant  that  Rookes  bought  the 
mare  of  the  plaintiffs  on  behalf  of  the  defendant  and  for  the  pi'ice 
mentioned  therein.  The  parties  are  named  in  a  writing  signed  by 
the  person  who  is  sought  to  be  charged  ;  and  the  subject-matter  of 
the  contract  and  the  price  are  both  mentioned.  Nothing  is  wanting 
to  make  a  complete  memorandum  of  the  bargain,  unless  it  be  necessary 
that  the  document  should  be  addressed  to  the  person  who  is  to  take 
advantage  of  it.  I  apj^rehend  the  17th  section  imposes  no  such  con- 
dition. Both  the  4th  and  the  17th  sections  seem  to  be  framed  for  the 
purpose  of  absolving  contracting  parties  from  liability,  unless  under 
§  4  the  agreement  ujJon  which  the  action  is  brought,  or  some  mem- 
orandum or  note  thereof,  shall  be  in  writing  and  signed,  &c.,  or 
under  §  17  unless  there  be  acceptance  or  part  payment,  or  some 
note  or  memorandum  in  writing  of  the  bargain  made  and  signed  by 
the  party  to  be  charged  thereby,  —  the  words  of  the  latter  clause  not 
bearing  quite  so  comprehensive  a  meaning  as  those  of  the  former. 
Taking  the  17th  section,  which  stands  upon  a  different  footing  from 
the  4th  in  the  particulars  which  called  for  the  interference  of  the  Legis- 
lature in  the  recent  Mercantile  Law  Amendment  Act,  19  &  20  Vict. 
c.  97,  and  on  which  our  judgment  must  proceed,  there  is  a  total 
absence  of  any  indication  of  intention  that  the  note  or  memorandum 
must  be  addressed  or  delivered  to  the  person  who  is  to  have  a  remedy 
upon  it :  all  the  section  requires  is  that  there  shall  be  written  evidence 
of  the  contract.  Provided  you  have  in  writing  an  admission  by  the 
party  to  be  charged  of  the  bargain  having  been  made,  the  requirement 


SECT.    VI.]  GIBSON    V.    HOLLAND.  '  519 

of  the  Statute  is  satisfied,  though  the  memorandum  does  not  shew  a 
contract  in  the  sense  of  its  being  a  complete  agreement,  and  intended 
to  be  the  exclusive  e^-idcnce  of  the  right  on  one  side  and  of  the  liability 
on  the  other,  as  the  final  written  agreement  between  the  parties  would 
be.     This  section  uses  a  Avord  which  seems  to  aiford  a  key  to  its  con- 
struction :  it  requires  that  there  shall  be,  not  any  particular  kind  of 
memorandum,  but  "  some  note  or  memorandum  of  the  bargain."    There 
is  a  note  or  memorandum  of  the  bargain  in  this  case.     I  cannot  help 
thinking   that   Bailey   v.    Sweeting  ^   disposes   of   this   case,  because, 
though  the  memorandum  there  did  not  shew  a  contract  in  the  sense 
of  an  agreement,  inasmuch  as  the  defendant  in  terms  repudiated  his 
liability,  yet  as  the  letter  contained  evidence  of  the  terms  upon  which 
he   had  once  contracted  to  be  bound  it  was  properly  held  to  be  a 
sufficient  memorandum  to   satisfy  the   statute.     Great   difficulty  has 
arisen   as   to   the  construction   of  this   section,  as   being   applied  to 
evidence  only ;  and  I  have  on  former  occasions  expressed  the  inability 
I  felt  to  understand  the  case  of  Leroux  v.  Brown,^  though  of  course  we 
are  bound  by  it.     It  affords  however  a  remarkable  confirmation  of 
the  correctness  of  the  construction  we  now  put  ui)on  the  statute,  how- 
ever questionable  some  persons  may  have  thought  the  decision  to  be. 
There  is  another  difficulty.     It  has  been  held  that  the  memorandum 
must  exist  before  the  action  is  brought.     Bill  v.  Bament.'     This  would 
seem  to  shew  that  the  memorandum  is  in  some  way  to  stand  in  the 
place  of  a  contract.     But  I  cannot  help  thinking  that  the  courts  in 
deciding   cases  of  that   description   considered  the  intention  of  the 
Legislature  to  be  of  a  mixed  character,  —  that  it  was  intended  to  pro- 
tect persons  from  actions  being  brought  against  them  to  enforce  con- 
tracts of  which  there  was  no  evidence  in  writing,  and  that  the  written 
evidence  should  be  existing  at  the  time  when  the  action  is  instituted. 
It  is  too  late  however  now  to  object  to  those  cases.     I  come  round  to 
the  section  itself     There  is  no  authority  which  compels  us  to  accede 
to  the  construction  which  Mr.  Karslake  asks  us  to  put  upon  it.     There 
is  no  reason  for  it ;  and  I  think  it  would  be  doing  violence  to  the 
language  used.     I  think  the  letters  in  question  do  constitute  a  sufficient 
memorandum  of  the  contract  to  answer  all  the  requirements  of  the 
statute. 

Byles,  J.,  who  had  not  heard  the  whole  of  the  argument,  expressed 

no  o[tinion. 

Keating,  J.,  concurred.  Bule  refused. 

1  9  C.  B.  (N.  s.)  843,  30  L.  J.  (C.  P.)  150. 

2  12  C.  B.  801,  22  L.  J.  (C.  P.)  1.     See  note  to  Birkmyr  v.  Darnell,  1  Sm.  L.  C 
(5th  ed.)  272 ;  and  see  WiUiaras  v.  Wheeler,  8  C.  B.  (n.  s.)  299,  316. 

3  9  M.  &  W.  36. 


520  NOBLE   V.    WARD.  [CHAP.    I. 

NOBLE   V.   WARD   and   Others. 
In  the  Exchequer,  January  12,  1866. 

[Reported  in  Law  Reports,  1  Exchequer,  117.] 

In  the  Exchequer  Chamber,  February  8,  1867. 

[Reported  in  Law  Reports,  2  Exchequer,  135.] 

Action  for  non-acceptance  of  goods.  The  first  count  of  the  dechira- 
tion  stated  that  it  was  agreed  between  the  plaintiff  and  the  defendants 
that  the  plaintiff  should  sell  and  deliver  to  them,  and  that  they  should 
accept  from  him  within  a  certain  agreed  period,  which  had  elapsed 
before  action,  a  quantity  of  cloth  at  certain  prices  therefor  to  be  paid 
by  the  defendants,  and  then  agreed  upon  between  the  plaintiff  and  the 
defendants ;  yet  the  defendants  refused  to  accept  or  pay  for  the  cloth, 
although  all  things  were  done,  &c.,  whereby  the  plaintiff  lost  the  differ- 
ence between  the  agreed  price  and  the  loAver  price  to  which  the  goods 
sold  fell.  The  second  count  was  for  money  payable  for  goods  bargained 
and  sold,  goods  sold  and  delivered,  and  for  money  due  on  accounts 
stated. 

The  defendants,  as  to  the  first  count,  pleaded :  (1)  JVon  assumjysit; 
(2)  Traverse  that  the  plaintiff  Avas  ready  and  willing  to  deliver  the 
cloth  within  the  agreed  period ;  (3)  That  it  was  one  of  the  tenns  of 
the  alleged  agreement  that  the  cloth  agreed  to  be  sold  and  delivered 
should  be  of  the  .?ame  material  and  as  well  made  as  a  sample  piece 
then  shewn  and  delivered  by  the  plaintiff  to  the  defendants ;  and  that 
the  plaintiff  was  not  ready  and  willing  to  deliver  cloth  of  the  same 
material  and  as  well  made  as  the  sample  piece  ;  (4)  Rescission  of  the 
alleged  agreement ;  (5)  To  the  second  count,  never  indebted.  Issues 
thereon. 

The  cause  was  tried  before  Bramwell,  B.,  at  the  Manchester  summer 
assizes,  1865,  when  the  following  facts  were  proved:  — 

The  plaintiff  is  a  manufacturer,  and  the  defendants  are  merchants  at 
Manchester.  On  the  12th  August,  1864,  the  defendants  gave  to  the 
plaintiff's  agent  an  order  for  500  pieces  of  32-inch  gray  cloth  at  38s. 
9(7.,  and  1000  pieces  of  35-inch  gray  cloth  at  425.  l-|~c?.,  the  deliveries  to 
commence  in  three  weeks,  and  to  be  completed  in  eight  to  nine  weeks. 
On  the  18th  of  the  same  month  a  second  order  was  given  by  the 
defendants  for  500  pieces  of  32-inch  gray  cloth  at  39s.,  and  100  pieces 
of  35-inch  gray  cloth  at  42s.  3d.,  to  be  delivered  "  to  follow  on  after 
order  given  12th  instant,  and  complete  in  ten  to  twelve  weeks."  The 
plaintiff  on  the  10th  and  19th  September  made  a  first  and  second 
delivery  on  account  of  the  first  order.     Considerable  discussion  ensued 


SECT.    VI.]  NOBLE   V.    "WARD.  521 

both  as  to  the  time  of  delivery  and  as  to  the  quality  of  the  goods 
delivered;  and  eventually,  on  the  27th  September,  the  plaintiif  had  an 
interview  with  the  defendants,  at  which  it  w^is  agreed  that  the  goods 
delivered  under  the  first  order  should  be  taken  back,  that  that  order 
should  be  cancelled,  and  that  the  time  for  delivering  the  goods  under 
the  second  order  should  be  extended  for  a  fortnight.  Goods  were  ten- 
dered to  the  defendants  by  the  plaintiff  in  time  either  ibr  the  fulfil- 
ment of  the  agreement  of  the  18th  August  or  of  that  of  the  27th 
September;  but  the  defendants  refused  to  accept  them  on  various 
grounds,  —  amongst  others,  on  the  ground  'that  they  were  not  of  the 
stipulated  quality.  The  plaintiff  thereupon  brought  this  action.  The 
declaration  was  framed  so  as  to  fit  either  the  agreement  of  the  18th 
August  or  that  of  the  27th  September.  The  learned  judge  directed  a 
nonsuit  to  be  entered,  being  of  opinion  that  the  contract  of  the  18th 
August  was  no  longer  in  existence,  the  parol  agreement  of  the  27th 
September  having  rescinded  it ;  and  tliat  the  latter  agreement  could 
not  be  resorted  to,  not  being  in  writing  in  accordance  with  §  17  of  the 
Statute  of  Frauds,  29  Car.  2,  c.  3.  That  section  provides  that  "no 
contract  for  the  sale  of  any  goods,  wares,  or  merchandises,  for  the  price 
of  £10  sterling  or  upwards,  shall  be  allowed  to  be  good  .  .  .  unless  some 
memorandum  or  note  in  writing  of  the  said  bargain  be  made  aiid  signed 
by  the  parties  to  be  charged  with  such  contract  or  their  agents  there- 
unto lawfully  authorized." 

A  rule  nisi  was  obtained  in  Michaelmas  term,  1865,  for  a  new  trial 
on  the  ground  that  the  plaintiff  was  entitled  to  recover  on  the  contract 
of  the  18th  August. 

Ilolker  and  Baylis  shewed  cause.  First,  the  nonsuit  was  right.  The 
ao-veement  of  the  27th  September  was  a  material  alteration  of  that  ot 
the  18th  August,  and  supported  the  plea  of  rescission.  Stead  v.  Dawber.^ 
But  not  being  in  writing  it  cannot  be  "  allowed  to  be  good "  within 
the  meaning  of  29  Car.  2,  c.  3,  §  17,  as  a  contract  for  the  sale  of  goods, 
thouo'h  it  is  ffood  as  a  rescission  of  the  former  contract.  Goss  v.  Lord 
Nuijent.^  In  Moore  v.  Campbell,^  which  will  be  relied  on  for  the  plain- 
tiff, there  was  a  parol  agreement,  beneficial  to  the  plaintiff,  to  alter  the 
place  of  delivery  of  goods  according  to  the  usage  of  a  particular  trade 
as  to  delivery ;  and  it  was  held  not  to  operate  as  a  rescission.  Here 
however  the  substituted  agreement  contains  an  alteration  so  material 
as  to  create  a  new  contract.  The  time  which  is  of  the  essence  of  the 
contract  is  altered  by  a  fortnight.  Unless  therefore  there  can  be  no 
waiver  by  parol  of  a  contract  required  by  the  Statute  of  Frauds,  §  17, 
to  be  in  writing,  the  contract  of  the  18th  August  is  gone  entirely.  But 
there  is  nothing  in  §  17  to  say  that  a  parol  contract  to  abandon  or  put 
an  end  to  another  shall  not  be  good.  The  opposite  construction  might 
lead  to  much  hardship ;  for,  assuming  the  verbal  contract  to  be  valid  for 
1  10  Ad.  &  E.  57.  ■J  5  B.  &  Ad.  58.  3  lo  Ex.  323,  23  L.  J.  (Ex.)  310. 


522  NOBLE   V.    WARD.  [CHAP.   I. 

no  purpose,  one  party  might  agree  with  the  other  to  extend  the  time 
for  delivery,  and  then,  when  it  had  become  inij)ossible  to  deliver  in  the 
time  originally  fixed,  turn  round  and  sue  for  non-delivery  within  the 
non-extended  time.  Secondly,  assuming  that  the  contract  of  the  18th 
August  was  still  in  force,  it  was  not  clear  that  the  plaintiff  was  ready 
and  willinof  to  deliver. 

3fellish,  Q.  C,  in  support  of  the  rule.  As  to  the  second  point  the 
contract  of  the  18th  is  vague  as  to  time.  The  deliveries  are  to  "follow 
on  after  order  given  12th  instant."  Then  the  first  contract  is  given 
up,  and  no  complete  deliveries  really  take  place  under  it ;  but  the 
plaintiff,  it  is  submitted,  was  at  liberty  to  take  the  utmost  time  under 
it  and  then  "  follow  on "  with  his  deliveries  under  the  second.  The 
two  contracts  at  any  rate  will  bear  this  construction ;  and  if  it  be  the 
correct  one,  the  plaintiff  was  ready  and  willing  to  deliver  it  in  time. 
Moreover  this  objection  was  not  taken  at  the  trial.  [Bramwell,  B. 
I  think  that  an  irresistible  case  ought  to  be  shewn  to  support  a  nonsuit 
on  a  ground  not  taken  at  the  trial.]  Secondly,  on  the  main  question, 
the  agreement  of  the  27tli  September  was  void  altogether.  The  words 
of  §  17  of  the  Statute  of  Frauds  are  that  no  contract  shall  be  allowed 
to  be  good  unless  certain  requisites  are  complied  with,  which  have  not 
been  coniplied  with  here.  Ought  it  therefore  to  be  allowed  to  be  good 
to  rescind  a  former  contract  ?  It  should  be  good  for  no  purpose. 
Smith  V.  Hudson.^  The  parties  cei-tainly  never  meant  to  get  rid  of  the 
contract  of  the  18th  August  altogether.  [Pollock,  C.  B.  Probably 
they  meant  to  alter  the  written  contract  in  one  material  particular,  and 
to  do  no  more.]  That  they  cannot  do.  With  regard  to  Stead  v. 
Dawber  -  and  Goss  v.  Lord  Nugent  ^  they  only  prove  what  is  an  unde- 
niable proposition,  that  the  substituted  contract  cannot  be  recovered 
upon.  In  most  cases  neither  party  is  prepared  to  perform  the  original 
contract,  and  therefore  the  question  now  raised  seldom  arises.  Moore 
V.  Campbell  *  is  in  point.  The  pleadings  are  similar  to  those  in  this 
case.  "  Another  question  raised,"  says  Parke,  B.,  "  was  as  to  the  effect 
of  the  alteration  by  parol  of  the  wi'itten  contract  to  deliver  goods  on 
the  quay  to  be  weighed  by  the  landing  scales,  and  substitute  a  dehvery 
from  the  warehouse."  It  was  contended  that  this  operated  as  a  new 
contract,  which  was  necessarily  a  waiver  or  discharge  of  the  old  one, 
and  being  made  before  the  breach  of  the  old  contract  supported  a  plea 
of  rescission.  "We  do  not  think,"  continues  the  learned  judge,  "that 
this  plea  was  proved  by  this  evidence.  The  parties  never  meant  to 
rescind  the  old  agreement  absolutely,  which  this  plea  we  think  imports. 
If  a  new  valid  agreement  substituted  for  the  old  one  before  breach 
would  have  supported  the  plea,  we  need  not  inquire ;  for  the  agreement 
was  void,  there  being  neither  note  in  writing,  nor  part  payment,  nor 

1  34  L.  J.  (Q.  B.)  145.  2  lo  Ad.  &  E.  57. 

3  5  B.  &  Ad.  58.  *  10  Ex.  323,  23  L.  J.  (Ex.)  310. 


SECT.    VI.]  NOBLE   V.    WARD. 


523 


delivery  nor  Ticceptancc  of  part  or  all."  So  here,  where  there  is  noth- 
ino-  to  shew  an  intention  wholly  to  rescind  the  contract  of  the  18th  of 
Au<nist,  and  where  there  is  only  an  attempt  to  make  a  new  contract 
for  the  sale  of  the  goods  without  complying  with  the  provisions  of  the 
statixte,  the  plaintiff  may,  if  he  ])leases,  revert  to  the  written  contract 
and  recover  upon  it.  Our.  ado.  vult. 

Jan,  12.     The  judgment  of  the  court  (Pollock,  C.  B.,  Bramwell, 
CiiANNELL,  and  PiGOTT,  BB.)  was  delivered  hy 

Bramwell,  B.^     This  case  was  tried  before  me  at  Manchester,  and 
the  plaintiff"  was  nonsuited.     The  case  comes  before  us  on  a  rule  to  set 
aside  the  nonsuit.     I  tliink  it  was  wrong,  at  least  on  the  ground  on 
which  it  proceeded.     The  action  was  for  not  accepting  goods  on  a  sale 
by  the  plaintiff'  to  the  defendants.     The  defendants  pleaded  among 
other  things  that  the  contract  had  been  rescinded,  and  that  the  ])lain- 
tiff"  was   not   ready  and  Avilling  to  deliver.      The  facts  were  that  a 
contract  for  the  sale  and  delivery  of  goods  from  the  plaintiff"  to  the 
defendants,  at  a  future  day,  was  entered  into  on  the  12th  of  August, 
which  may  be  called  contract  A  ;  that  another  contract  for  sale  and 
delivery  was  entered  into  on  the  18th  of  August,  say  contract  B;  that 
before  any  of  the  days  of  delivery  had  arrived  the  plaintiff"  and  defend- 
ants agreed  verbally  to  rescind  or  do  away  with  contract  A,  and  to 
extend  for  a  fortnight  the  time  for  the  performance  of  contract  B ;  that 
is  to  say,  the  ]>laintiff"  had  a  fortnight  longer  to  deliver,  and  the  defend- 
ants a  fortnight  longer  to  take  and  pay  for  those  goods.     This  on  prin- 
ciple and  authority  Avas  a  third  contract,  call  it  C.     It  was  a  contract 
in  which  all  that  was  to  be  done  and  permitted  on  one  side  was  the 
consideration  for  all  that  was  to  be  done  and  permitted  on  the  other. 
(See  ^:»er  Parke,  B.,  in  Marshall  v.  Lynn.")     It  remains  to  add  that  the 
declaration  would  fit  either  contract  B  or  contract  C,  and  that  goods 
were  tendered  by  the  plaintiff"  to  the  defendants  in  time  for  either  of 
those  contracts.     My  notes  and  my  recollection  of  my  ruling  are  that 
contract  B  was  rescinded,  and  contract  C  not  enforceable,  not  being  in 
writing.     I  think  that  was  wrong.     Eitlier  contract  C  was  within  the 
Statute  of  Frauds,  or  not.     If  not,  there  was  no  need  for  a  wi'iting ;  if 
yes,  it  was  because  it  was  a  contract  for  the  sale  of  goods,  and  so 
within  the  17th  section  of  the  statute.     That  says  that  no  contract  for 
the  sale  of  goods  for  the  price  of  £10  or  upwards  shall  be  allowed  to 
be  good,  except  there  is  an  acceptance,  payment,  or  Avriting.      The 
expression  "  allowed  to  be  good  "  is  not  a  very  happy  one ;  but  what- 
ever its  meaning  may  be,  it  includes  this  at  least,  that  it  shall  not  be 
held  valid  or  enforced.     But  this  is  what  the  defendant  was  attempting 
to  do.     He  was  setting  up  this  contract  C  as  a  valid  contract.     He  was 
asking  that  it  should  be  allowed  to  be  good  to  rescind  contract  B. 
I  This  judgment  was  read  by  Channell,  B.  2  6  M.  &  W.  117. 


524  NOBLE  V.   WARD.  [CHAP.   I. 

It  is  attempted  to  say  that  what  took  place  when  cofitract  C  was 
made  was  twofold:  first,  that  the  old  contracts  were  given  up;  sec- 
ondly, a  new  one  was  made.  But  that  is  not  so.  What  was  done  was 
all  done  at  once,  —  was  all  one  transaction,  —  one  bargain  ;  and  had  the 
plaintiff  asked  for  a  writing  at  the  time,  and  the  defendants  refused 
it,  it  would  all  have  been  undone,  and  the  parties  remitted  to  their 
original  contract. 

I  think  therefore  that  on  principle  it  was  wrong  to  hold  that  the 
old  contract  was  gone.  Moore  v.  Campbell^  is  an  authority  to  the 
same  effect.  It  is  true  that  case  may  be  distinguished  on  the  facts ; 
namely,  that  there  what  was  to  be  done  under  the  new  arrangement 
in  lieu  of  the  old  was  to  be  done  at  the  same  time,  so  that  it  might  well 
be  the  parties  meant,  not  that  the  new  thing  should  be  done,  but  if 
done  it  should  be  in  lieu  of  the  old.  Such  an  argument  could  not  be 
used  in  this  case.  But  it  was  not  the  ground  of  the  judgment  there, 
which  is  that  the  new  agreement  was  void.  The  case  of  Goss  v.  Loi'd 
Nugent,-  Stead  v.  Dawber,^  and  others,  only  shew  that  the  new  con- 
tract C  cannot  be  enforced,  not  that  the  old  contract  B  is  gone.  I 
think  it  was  not.  Inconvenience  and  absurdity  may  arise  from  this. 
For  instance,  if  the  defendants  signed  the  new  contract,  and  not  the 
plaintiff,  the  plaintiff  would  be  bound  to  the  old  and  the  defendants  to 
the  new.  Or  if  in  the  course  of  the  cause  a  wiiting  turned  up  signed 
by  the  plaintiff,  then  they  could  first  rely  on  the  old  and  afterwards 
on  the  new  contract.  But  this  is  no  more  than  may  happen  in  any  case 
within  the  17th  section,  where  there  has  been  one  contract  only. 

But  then  it  was  said  before  us  that  the  plaintiff  was  not  ready  and 
willing  to  deliver  under  contract  B.  Probably  not,  and  he  supposed 
contract  C  was  in  force.  In  answer  to  this,  the  plaintiff  contended 
before  us  that  this  point  was  not  made  at  the  trial;  to  Avhich  the 
defendants  replied,  Neither  was  the  point  that  the  old  contract  was  in 
force.  My  recollection  is  so,  —  that  the  case  was  opened  and  main- 
tained as  on  the  new  contract,  —  but  I  agree  with  Mr.  Mellish  that  a 
nonsuit  ought  to  be  maintained  on  a  point  not  taken  at  the  trial  only 
when  it  is  beyond  all  doubt.  I  cannot  say  this  is.  Consequently 
I  think  the  rule  should  be  absolute ;  but  under  the  circumstances  the 
costs  of  both  parties  of  the  first  trial  ought  to  abide  the  event  of  the 
second. 

Channell,  B.  The  case  in  my  brother  Bramwell's  opinion  turning 
on  Avhat  was  his  own  impression,  he  was  desirous  that  this  judgment 
should  be  read  as  his  own  judgment.  But  I  am  authorized  by  the 
Lord  Chief  Baron  and  by  my  brother  Pigott  to  say  that,  although  I 
have  read  it  as  the  judgment  of  my  brother  Brarawell,  it  is  a  judgment 
in  which  we  all  agree.  Mule  absolute. 

»  10  Ex.  323,  23  L.  J.  (Ex.)  310.  '^  5  B.  &  Ad.  58. 

3  10  Ad.  &  E.  57. 


SECT.  VI.]  NOBLE  V.   WARD.  625 

The  defendants  appealed  from  the  foregoing  decision  to  the  Excheq- 
uer Chamber. 

Holker  {Baylis  Avith  liiin),  for  the  appealing  defendants.  The 
defendants'  contention  is  that  the  contract  of  the  27th  of  September, 
although  not  enforceable  at  law  by  reason  of  §  17  of  the  Statute  of 
Frauds,  is  good  to  rescind  the  previous  contract  of  the  ISlh  of  August. 
It  is  stated  in  Com.  Dig.,  Action  on  the  Case,  Assumpsit  (G.),  that  a 
written  contract  may  be  discharged  by  parol,  or  impliedly  by  a  subse- 
quent inconsistent  promise ;  and  this  rule  was  followed  recently  in  Hob- 
son  V.  Cowley  ^  and  LaVery  v.  Turley.^  It  is  not  therefore  conclusive 
against  tlie  rescission  of  the  contract  of  the  18th  of  August  by  that  of 
the  27th  of  September  that  the  latter  Avas  not  in  writing.  In  the  sec- 
ond place,  it  is  established  by  Stead  v.  Dawber,''  agreeing  with  Goss  v. 
Loi'd  Nugent,*  that,  where  by  a  new  contract  the  terms  of  a  previous 
contract  are  varied,  the  old  contract  is  rescinded,  and  a  new  contract, 
embodying  the  alterations  and  the  unaltered  part  of  the  old  one,  is  sub- 
stituted for  it ;  and  Marshall  v.  Lynn,"^  following  that  case,  lays  down 
that  it  is  unnecessary  to  inquire  whether  the  alteration  is  an  essential 
part  of  the  agreement.  Therefore  the  contract  of  the  27th  of  Septem- 
ber, extending  the  time  for  the  performance  of  that  of  the  18th  of 
August,  rescinded  the  former  contract,  and  made  a  new  contract  incor- 
porating so  much  of  the  old  one  as  remained  unaltered.  If  then  it 
had  been  in  writing,  it  is  clear  that  the  substituted  contract,  and  that 
alone,  would  have  been  enforceable.  But  although  for  want  of  the 
formality  required  by  the  statute  the  contract  of  the  27th  of  Septem- 
ber could  not  have  been  enforced,  yet  the  provision  that  it  shall  not  be 
"  allowed  to  be  good  "  does  not  make  it  void  altogether,  and  it  still  has 
the  effect  of  rescinding  the  former  contract. 

[Blackburn,  J.  That  argument  amounts  to  this,  that  it  is  good 
for  the  purpose  of  rescission,  though  not  good  for  any  other  purpose 
whatever.  Willes,  J.,  referred  to  Roe  d.  Berkeley  v.  Archbishop  of 
York  ®  and  Doe  d.  Biddulph  v.  Poole.''] 

This  contention  is  supported  by  French  v.  Patton,^  where  a  contract 
having  been  altered  in  such  a  manner  that  it  could  not  be  sued  on  in 
its  altered  form  (see  Hill  v.  Patton  ^),  it  was  held  that  the  plaintifl'  could 
not  sue  upon  it  in  its  original  form. 

[Blackburn,  J.  There  the  original  contract,  which  was  in  writing, 
had  itself  been  altered  on  the  face  of  it ;  and  the  case  was  decided  on 
the  principle  of  Master  v.  Miller.^'^] 

The  dictum  in  Moore  v.  Campbell,"  which  is  relied  on  by  the  plain- 

1  27  L.  J.  (Ex.)  205.  2  30  L.  J.  (Ex.)  49.  3  10  Ad.  &  E.  57. 

*  5  B.  &  Ad.  58.  5  6  M.  &  W.  109,  at  p.  117. 

«  6  East,  86.  7  11  Q.  B.  713.  8  9  East,  351. 

9  8  East,  873.  10  4  t.  E.  820. 

11  10  Ex.  323,  23  L.  J.  (Ex.)  310. 


526  NOBLE   V.    WARD.  [CHAP.   I. 

tiff,  was  not  necessary  to  the  decision  of  the  case,  for  there  a  new  trial 
was  necessary  to  ascertain  whether  any  contract  had  been  made  by  the 
defendant. 

He  also  referred  to  Taylor  v.  Hilary.^ 

MelUsh^  Q.  C.  {Jones,  Q.  C,  with  hira),  for  the  plaintiff,  was  not 
called  upon. 

WiLLES,  J.  This  is  an  appeal  from  the  judgment  of  the  Court  of 
Exchequer,  making  absolute  a  rule  to  set  aside  a  nonsuit,  and  for  a  new 
trial.  The  action  was  brought  for  non-acceptance  of  goods  pursuant 
to  a  contract  dated  the  18th  of  August,  by  which  the  goods  were  to 
be  delivered  in  a  certain  time.  The  defendants  pleaded  that  the  con- 
tract was  rescinded  by  mutual  consent.  At  the  trial  they  established 
that  on  the  27th  of  September,  before  any  breach  of  that  contract,  it 
was  agreed  between  the  plaintiff  and  the  defendants  that  a  previous 
contract  of  the  12th  of  August  should  be  rescinded  (as  to  which  no 
question  is  made),  that  the  time  for  delivering  under  the  contract  of 
the  18th  should  be  extended  for  a  fortnight;  and  other  provisions 
were  made  as  to  taking  back  certain  goods,  which  we  need  not  further 
notice.  The  contract  of  the  27th  of  September  however  was  invalid, 
for  want  of  compliance  with  the  fonnalities  required  by  §  17  of  the 
Statute  of  Frauds.  The  defendants  contended  that  the  effect  of  the 
contract  to  extend  the  time  for  delivery  was  to  rescind  the  contract 
of  the  18th  of  August ;  and  if  the  former  contract  had  been  in  a  legal 
form,  so  as  to  be  binding  on  the  parties,  that  contention  might  have 
been  successful,  so  far  as  the  change  in  the  mode  of  cari-ying  out  a  con- 
tract can  be  said  to  be  a  rescission  of  it ;  but  the  defendants  main- 
tained that  the  effect  was  the  same,  although  the  contract  was  invalid. 
In  setting  aside  the  nonsuit  directed  by  the  learned  judge  who  tried 
the  cause,  the  Court  of  Exchequer  dissented  from  that  view,  and  held 
that  what  took  place  on  the  27th  must  be  taken  as  an  entirety,  that 
the  agreement  then  made  could  not  be  looked  on  as  valid,  and  that 
no  rescission  could  be  effected  by  an  invalid  contract.  And  we  are  of 
opinion  that  the  Court  of  Exchequer  was  right.  Mr.  Holker  has  con- 
tended that,  though  the  contract  of  the  27th  of  September  cannot  be 
looked  on  as  a  valid  contract  in  the  way  intended  by  the  parties,  yet 
since,  if  valid,  it  would  have  had  the  effect  of  rescinding  the  con- 
tract of  the  18th,  and  since  the  parties  might  have  entered  into  a  mere 
verbal  contract  to  rescind  simpliciter,  we  are  to  say  that  what  would 
have  resulted  if  the  contract  had  been  valid  will  take  place  though 
the  contract  is  void ;  or,  in  other  words,  that  the  transaction  will  have 
the  effect  which,  had  it  been  valid,  the  parties  would  have  intended 
though  without  expressing  it,  although  it  cannot  operate  as  they 
intended  and  expressed.  But  it  would  be  at  least  a  question  for  the 
jury,  whether  the  parties  did  intend  to  rescind,  —  whether  the  transac- 

1  1  C.  M.  &  K.  741. 


SECT.    VI.]  NOBLE   V.   WARD.  527 

tion  Avas  one  which  could  not  otherwise  operate  according  to  their 
intention;  and  a  material  fact  on  that  point  is  that,  while  they  simply 
rescinded  the  contract  of  the  12th  of  August,  they  simi)ly  made  a  con- 
tract as  to  the  carrying  into  effect  that  of  the  18th,  though  in  a 
mode  different  from  Avhat  was  at  first  contemplated.  It  is  quite  in 
accordance  Avitli  the  cases  of  Doe  d.  Egremont  v.  Courtenay  ^  and 
Doe  d.  Biddulph  v.  Poole,-  overruling  the  i^revious  decision  of  Doe  d. 
Eo-remont  v.  Forwood,^  to  hold  that,  where  parties  enter  into  a  con- 
tract which  would  have  the  effect  of  rescinding  a  previous  one,  but 
which  cannot  operate  according  to  their  intention,  the  new  contract 
shall  not  operate  to  affect  the  previously  existing  rights.  This  is  good 
sense  and  sound  reasoning,  on  which  a  jury  miglit  at  least  hold  that 
there  was  no  such  intention.  And  if  direct  authority  were  wanted  to 
sustain  this  conclusion,  it  is  supi^lied  by  Moore  v.  Campbell,*  where 
upon  a  plea  of  rescission  the  very  point  was  taken  by  Sir  Hugh  Hill, 
who  wouhl  no  doubt  have  made  it  good,  had  it  been  capable  of  being 
established.  "With  reference  to  his  argument  that  the  contract  was  re- 
scinded, Parke,  B.,  said  :  ^  "  We  do  not  think  that  this  plea  was  proved 
by  the  evidence.  The  parties  never  meant  to  rescind  the  old  agreement 
absolutely,  which  the  plea,  we  think,  im2:)orts.  If  a  new  valid  agree- 
ment substituted  for  the  okl  one  before  breach  would  have  supported 
the  plea  we  need  not  inquire ;  for  the  agreement  was  void,  there  being 
neither  note  in  writing  nor  part  papnent,  nor  delivery  nor  acceptance 
of  part  or  all."  And  he  adds :  "  This  was  decided  by  the  cases  of  Stead 
V.  Dawber  ®  and  Marshall  v.  Lynn."  "^  As  to  the  cases  cited  fi'om  East, 
too  much  importance  has  been  attached  to  them.  The  first  case  ^ 
amounts  to  no  more  than  this :  that  the  court  was  bound  to  construe 
the  contract  before  it  Avithout  regard  to  the  stamp ;  and  having  done 
so,  then  to  see  how  the  Stamp  Acts  operated  upon  it.  In  the  second 
case  ^  it  was  held  that,  although  the  Stamp  Acts  operated  to  prevent 
the  plaintiff  from  recovering  upon  the  policy  as  altered,  that  circum- 
stance couki  not  enable  him  to  recover  upon  it  in  its  original 
form,  when  he  had  himself  consented  to  the  alteration  of  the  Avritten 
words. 

Blackburn,  Melloe,  Montague  Smith,  and  Lush,  JJ.,  concurred. 

Judgment  affirmed. 

1  11  Q.  B.  702.  2  11  Q.  B.  713.  3  3  Q.  B.  627  ;  see  11  Q.  B.  723. 

4  10  Ex.  323,  23  L.  J.  (Ex.)  310.  »  10  Ex.  at  p.  332. 

6  10  Ad.  &  E.  57.        7  6  M.  &  W.  109.  8  HUI  v.  Piitton,  8  East,  373. 
9  French  v.  Patton,  9  East,  361. 


528  WILKINSON    V.    EVANS.  [CHAP.    I. 


WILKINSON  V.   EVANS. 
In  the  Common  Pleas,  May  8,  1866. 

[Reported  in  Law  Reports,  1  Common  Pleas,  407.] 

This  was  an  action  brought  to  recover  the  price  of  certain  cheese. 

The  case  was  tried  by  writ  of  trial  before  the  under-sheriff  of  the 
county  of  Chester,  when  it  appeared  that  the  defendant  had  verbally 
ordered  of  the  plaintiff  twenty-five  Dutch  cheeses  and  some  candles. 
The  plaintiff  sent  the  goods,  and  also  an  invoice  of  them  in  the  usual 
form.  The  defendant  refused  to  take  the  goods  in  when  they  arrived, 
and  returned  the  invoice  to  the  plaintiff,  with  the  following  note  writ- 
ten on  the  back  of  it :  — 

The  cheese  came  to-day ;  but  I  did  not  take  them  in,  for  they  were  very  badly 
crushed :  so  the  candles  and  the  cheese  is  returned.  You  seem  to  think  that  I 
complain  without  cause ;  so  now  you  Avill  be  able  to  see  them  as  they  are.  I  was 
glad  to  find  it  is  the  first  complaint  you've  had  from  seven  counties.  I  hope  it 
will  be  the  last.     I  am  sure  it  Avill  be  the  last  for  me. 

Yours  truly,  T.  Evans,  Grocer,  Welshpool. 

The  plaintiff  agreed  to  take  back  the  candles,  and  brought  this  action 
for  the  price  of  the  cheese,  which  was  less  than  £10. 

The  plaintiff's  attorney  having  written  to  the  defendant  to  ask  for 
payment  of  the  goods,  the  defendant  sent  the  following  answer :  — 

Sir,  —  Yours  this  morning  to  hand,  in  which  you  requested  payment  for  cheese. 
I  have  to  inform  you  that  I  have  nothing  at  all  to  do  with  it.  The  cheese  and 
candles  were  in  a  very  bad  condition,  and  the  candles  he  consented  to  take  back ; 
so  if  the  company  signed  for  the  cheese  in  good  condition,  it  is  very  likely  they 
will  allow  the  damage  without  suing  them :  but  I  don't  think  they  would  sign  for 
those  in  good  condition,  as  they  seemed  to  have  very  old  crushes  ;  some  of  the 
openings  were  quite  green.  As  for  you  to  sue  the  company  in  my  name,  you 
may  do  so  if  you  think  proper ;  but  you  must  bear  in  mind  that  I  will  not  be  any 
thing  towards  the  cost,  and  if  summoned  for  witness  I  must  have  my  expenses 
paid.  Had  they  been  sent  by  canal  as  I  ordered  them,  they  would  not  have  been 
damaged  ;  that  is,  if  they  would  receive  them  in  good  condition.  I  expect  that 
he  has  the  cheese  in  his  warehouse,  for  I  never  received  any  notice  from  the  com- 
pan3%  Yours  truly, 

Thomas  Evans,  Orocer,  &c.,  Welshpool. 

The  plaintiff  was  nonsuited  on  the  ground  that  there  was  no  suffi- 
cient memorandum  in  writing  within  the  meaning  of  the  Statute  of 
Frauds. 


SECT.    VI.]  WILKINSON  V.    EVANS.  529 

Morgan  Lloyd  having  obtained  a  rule  for  a  new  trial, 
•  Mclntyre  shewed  cause.  The  memorandum  must  be  a  memoran- 
dum of  the  bargain,  and  shew  on  the  face  of  it  that  a  bargain  has  been 
made.  In  Bailey  v.  Sweeting  ^  the  letter  stated  that  the  goods  had  been 
bought,  and  what  were  the  terras  of  the  bargain :  here  it  is  nowhere 
stated  that  there  was  any  bargain  at  all ;  for  the  invoice  is  only 
a  statement  of  the  price  of  the  goods  if  they  are  sold,  and  is  never 
intended  to  indicate  that  the  goods  are  sold.  The  form  is  the  same  if 
the  goods  are  only  sent  on  approval ;  and  the  note  on  the  back,  even  if 
it  can  be  connected  with  the  invoice,  only  says  that  the  goods  therein 
ftientioncd  were  returned,  but  does  not  say  whether  they  had  been 
bought  or  sent  on  approval.  There  is  in  fiict  no  admission  anywliere 
that  there  ever  was  a  complete  contract.  In  Richards  u.  Porter  -  and 
Cooper  V.  Smith  ^  the  memorandum  was  held  insufficient,  though  a  let- 
ter was  written  by  the  defendant  saying  that  he  rejected  them  because 
they  did  not  come  in  time.  The  note  on  the  back  of  the  invoice 
implies  that  it  was  a  term  in  the  contract  that  the  cheeses  should  be 
delivered  in  good  condition,  just  as  much  as  the  letters  in  the  above 
cases  implied  that  it  was  a  terra  in  the  contract  that  the  goods  should 
be  delivered  within  a  given  time.  In  Smith  v.  Surman  *  the  letter 
signed  by  the  defendant  stated  that  the  goods  were  rejected  because 
they  were  bad  in  quality,  and  it  was  held  not  to  satisfy  the  statute. 
From  the  letter  by  the  defendant  to  the  plaintiff's  attorney  it  would 
appear  that  it  was  a  term  of  the  contract  that  the  goods  should  be  sent 
by  canal. 

Morgan  Lloyd,  in  support  of  the  rule.  The  invoice  contained  all 
the  terms  of  the  bargain,  and  if  that  had  been  signed  by  the  defendant 
there  could  have  been  no  dispute.  The  fact  that  the  defendant's  signa- 
ture is  on  the  back  cannot  make  any  difference.  He  speaks  too  of  the 
cheese  which  must  mean  that  mentioned  in  the  invoice.  The  case  of 
Bailey  v.  Sweeting  is  in  point :  there  the  defendant  wrote  a  letter  com- 
plaining that  the  glass  was  broken ;  here  the  defendant  com]:»lains  that 
the  cheese  is  crushed.  In  the  other  cases  cited  the  letters  imply  tliat 
there  was  an  additional  term  in  the  contract  as  to  time  or  quality  not 
admitted  by  the  plaintiff;  if  they  do  not,  those  cases  are  overruled  by 
Bailey  v.  Sweeting.^  The  letter  written  by  the  defendant  to  the  plain- 
tiff's attorney  was  long  subsequent  to  the  transa<;tion,  and  cannot 
affect  the  rights  of  the  plaintiff. 

Erle,  C.  J.  I  think  this  rule  should  be  made  absolute.  The  con- 
tract in  this  case  was  made  by  word  of  mouth,  and  consisted  simply  in 
an  order  for  some  grocery,  containing  no  specification  as  to  quality  or 
any  other  matter..    The  question  is  whether  there  was  any  memoran- 

1  9  C  B.  (N.  s.)  843,  30  L.  J.  (C.  P.)  160.  2  6  B.  &  C.  437. 

3  15  East,  103.  4  9  B.  &  C.  561. 

VOL    I.  34 


530  WILKINSON   V.   EVANS.  [CHAP.    I. 

dum  in  writing  of  this  verbal  contract.  There  is  an  invoice  of  the 
goods  from  the  seller  to  the  buyer ;  and  on  the  back  of  it  is  a  letter 
signed  by  the  buyer,  which  says,  "  The  cheese  came  to-day,  but  I  did 
not  take  them  in  for  they  were  very  badly  crushed."  I  think  that  is 
some  evidence  that  the  invoice  contained  all  the  stipulations  of  the 
contract,  and  that  the  objection  of  the  defendant  was  not  to  the  plain- 
tiff's statement  of  the  contract,  but  to  that  which  had  taken  place  in 
the  performance  of  the  contract,  namely,  the  crushing  of  the  cheeses. 
I  am  confirmed  in  this  view  by  the  letter  of  the  defendant  to  the  plain- 
tiff's attorney,  because  he  says  that  if  the  goods  had  been  sent  by  the 
canal  they  would  not  have  been  crushed,  and  makes  no  objection  to 
the  terms  of  the  contract.  I  think  the  direction  to  send  them  by  the 
canal  was  not  a  part  of  the  contract,  but  only  an  order  given  subse- 
quently as  to  the  mode  of  carrying  it  out.  The  case  therefore  falls 
directly  within  the  authority  of  Bailey  v.  Sweeting.^  The  cases  which 
have  been  referred  to,  in  which  an  invoice  has  been  sent  and  a  letter 
written  afterwards  recognizing  it,  but  the  two  have  been  held  not  to 
constitute  a  memorandum  within  the  Statute  of  Frauds,  are  all  distin- 
guishable on  the  ground  that  in  all  of  them  the  letter  stated  that  the 
contract  contained  a  term  not  stated  in  the  invoice.  In  Richards  v. 
Porter  ^  and  Cooper  v.  Smith  ^  the  term  was  that  the  goods  should  be 
delivered  within  a  given  time ;  in  Smith  v.  Surman  *  that  they  should 
be  sound  and  in  good  condition.  It  is  clear  that  two  writings  alleging 
two  different  contracts  can  never  together  form  a  memorandum  in  writ- 
ing of  the  bargain ;  but  in  this  case  there  is  no  such  variance. 

Byles,  J.  I  am  of  the  same  opinion.  I  cannot  doubt  that  if  the 
defendant  had  written  on  the  invoice,  "  Bought  as  within  mentioned," 
and  signed  it,  it  would  have  been  sufficient.  No  doubt  there  is  an 
implied  term  in  the  contract  that  the  cheese  should  be  in  good  condi- 
tion, but  it  is  an  implied  term  and  not  an  express  one.  My  only  doubt 
has  been  whether  the  memorandum  on  the  back  sufficiently  identified 
the  goods  mentioned  in  it  with  those  in  the  invoice ;  but  it  is  the  cheese 
and  the  candles,  which  I  think  is  the  same  as  this  cheese  and  these 
candles,  and  must  refer  to  those  in  the  invoice  on  the  back  of  which 
the  words  are  written.  If  the  writings  can  be  connected  without 
extraneous  evidence,  it  is  sufficient ;  and  then  according  to  Bailey  v. 
Sweeting  the  fact  that  one  of  them  contains  an  attempt  to  repudiate 
the  bargain  makes  no  difference. 

Keating,  J.  I  am  of  the  same  opinion.  It  seems  to  me  that  the 
effect  of  this  document  is  the  same  as  if  it  had  said  I  bought  of  you  at 
the  within  price  the  goods  mentioned,  but  they  have  not  been  sent  to 
me  in  proper  condition.  I  have  not  heard  any  thing  suggested  as  a 
term  of  the  real  contract  not  contained  in  the  invoice. 

1  9  C.  B.  (n.  8.)  843,  30  L.  J.  (C.  P.)  150. 

2  6  B.  &  C.  437.  3  15  East,  103.  *  9  B.  &  C.  561. 


i 


SECT.    VI.]  VANDENBERGH    V.    SPOONER.  531 

Montague  Smith,  J.  I  am  of  the  same  opinion.  I  think  the  letter 
refers  to  the  invoice  and  recognizes  the  terms  of  it.  It  is  a  coniphiint 
that  the  contract  contained  in  the  invoice  has  not  been  complied  with, 
but  an  iini»lied  term  in  it  broken.  In  Cooper  v.  Smith  ^  the  letter  com- 
plained that  the  flour  Avas  not  sent  within  the  agreed  time,  and  then 
Lord  Ellenborough  says  it  falsifies  the  parol  contract  proved  hy  the 
plaintiff,  which  had  no  term  as  to  the  time,  and  so  contradicts  the  con- 
tract and  cannot  be  a  memorandum  of  it.  Mule  absolute. 


VANDENBERGH  v.   SPOONER. 
In  the  Exchequer,  June  12,  1866. 

[Reported  in  Law  Reports,  1  Exchequer,  316.] 

This  was  an  action  for  goods  bargained  and  sold,  tried  before  Brara- 
well,  B.,  at  the  sittings  at  Westminster  in  last  Hilary  tenn.  The 
plaintiff  had  purchased  at  a  sale  of  A\Teck  a  quantity  of  marble  :  this 
the  defendant  agreed  to  buy,  but  afterwards  repudiated  his  bargain 
and  refused  payment.  The  value  of  the  goods  was  above  £10,  and  the 
only  note  or  memorandum  of  the  contract  in  writing  signed  by  the 
defendant  was  as  follows :  "  D.  Spooner  agrees  to  buy  the  whole  of 
the  lots  of  marble  purchased  by  Mr.  Vandenbergh,  now  lying  at  the 
Lyme  Cobb,  at  Is.  per  foot.     (Signed)  D.  Spooner." 

Evidence  was  also  given  to  the  effect  that,  after  the  defendant  had 
signed  this  document,  he  wrote  out  what  he  alleged  to  be  a  copy  of  it, 
which  at  his  request  the  plaintiff,  supposing  it  to  be  a  genuine  copy, 
signed.  This  was  in  the  following  words:  "Mr.  J.  Vandenbergh  agrees 
to  sell  to  W.  D.  Spooner  the  several  lots  of  marble  purchased  by  him, 
now  lying  at  Lyme,  at  Is.  the  cubic  foot,  and  a  bill  at  one  month. 
(Signed)  Julius  Vandenbergh."  The  jury  however  were  of  opinion 
that  the  first  document  stated  the  contract  actually  made,  and  found  a 
verdict  for  the  plaintiff  for  £35,  leave  being  reserved  to  the  defendant 
to  move  to  enter  a  nonsuit  on  the  ground  (amongst  others)  that  there 
was  no  sufficient  note  or  memorandum  of  the  contract  within  the 
Statute  of  Frauds. 

Ka^rslaJce,  Q.  C,  having  obtained  a  rule  accordingly, 

May  22,  Iluddleston.,  Q.  C\  and  Hannen.,  shewed  cause.  To  make 
a  document  a  sufficient  note  or  memorandum  of  a  contract  within  the 
Statute  of  Frauds,  it  is  only  necessary  that  it  should  shcAv  with  reason- 
able clearness  and  certainty  the  parties  to  and  the  subject-matter  of 

1  15  East,  103. 


632  VANDENBERGH   V.    SPOONER.  [CHAP.    I. 

the  contract,  and  should  be  signed  by  the  party  to  be  charged.  Bailey 
V.  Sweeting,^  Sari  v.  Bourdillon.^  Now  in  this  case  it  is  clear  that  the 
plaintiff's  name  is  mentioned  ;  and  the  only  question  is,  whether  from 
that  mention  it  can  be  inferred  that  he  is  the  seller.  The  case  is  there- 
fore not  within  the  decision  in  Williams  v.  Lake,^  where  the  plaintiff 
was  not  mentioned  at  all  in  the  guaranty,  and  the  guaranty  was  in 
fact  intended  to  be  given  to  a  different  person :  in  substance  that  case 
was  an  attempt  to  make  an  ordinary  contract  transferable.  The  words 
however  there  used  by  Hill,  J.,  are  applicable :  it  is  suflScient  if  the 
essentials  of  the  contract  appear  by  a  reasonable  construction  of  the 
document.  It  is  a  reasonable  construction  of  this  document  that  Van- 
denbergh  is  the  seller;  for  being  stated  in  it  to  have  purchased  the 
marble,  he  must  be  presumed  still  to  be  the  owner  of  it,  and,  as  the 
only  person  entitled  to  sell,  to  be  the  person  actually  selling. 

[Bramwell,  B.  Suppose  a  contract  were  signed  in  this  form:  I 
agi'ee  to  give  £100  for  the  brown  horse,  bred  by  A.  B.,  would  that  be 
evidence  of  a  contract  with  A.  B.  to  buy  the  horse  ?] 

No :  because  from  the  nature  of  the  subject-matter  that  description 
would  be  given  of  a  horse  not  with  any  refei-ence  to  its  present  owner, 
but  as  an  indication  of  its  probable  qualities ;  but  there  is  no  such 
reason  for  describing  goods  by  reference  to  their  purchaser.  It  may  be 
inferred  therefore  by  a  reasonable  intendment  that  the  person  described 
as  having  purchased  the  goods  is  the  seller. 

[Bramwell,  B.  If  the  word  "  intendment "  were  substituted  for 
"  construction,"  in  the  judgment  of  Hill,  J.,  it  would  be  more  in  your 
favor  :  it  may  be  shrewdly  guessed  that  the  plaintiff  was  the  purchaser, 
but  that  is  conjecture,  and  not  construction.] 

All  that  is  meant  by  Hill,  J.,  is  that  you  must  be  ab]e  fairly  to  collect 
the  essentials  of  the  contract  from  the  document.  A  bill  given  by  A., 
headed  "  A.  to  B.,"  and  enumerating  the  goods  and  stating  the  price, 
would  satisfy  the  statute,  and  would  bind  A.,  if  A.'s  name  had  been 
written  or  printed  by  him  or  by  his  authority.  But  if  it  does  not 
appear  from  the  document  itself  who  is  the  seller,  the  surrounding 
circumstances  may  be  looked  at  to  shew  that  the  seller  is  the  person 
mentioned  in  it ;  and  a  conclusive  circumstance  here  is  the  paper 
signed  by  the  plaintiff.     Macdonald  v.  Longbottom.* 

I^arskike,  Q.  C,  and  Kingdon,  in  support  of  the  rule.  It  is  clear 
that  the  plaintiff  is  not  mentioned  as  seller  in  the  document,  and  it  is 
only  by  importing  knowledge  of  the  circumstances  that  the  inference 
that  he  is  seller  can  be  arrived  at.  But  the  case,  cited  is  no  authority 
for  ascertaining  the  seller  by  extrinsic  evidence,  where  no  one  is  named 

1  9  C.  B.  (n.  s.)  843,  30  L.  J.  (C.  P.)  150. 

2  1  C.  B.  (n.  s.)  188,  26  L.  J.  (C.  P.)  78. 

3  2  E.  &  E.  349,  29  L.  J.  (Q.  B.)  1. 

*  1  E.  &  E.  987,  29  L.  J.  (Q.  B.)  256. 


SECT.    VI.]  VANDENBERGH   V.   SPOONER.  533 

as  seller,  but  only  for  identifying  the  person  or  the  thing  named  or 
described  Avith  the  person  or  thing  intended.  Further,  the  document 
signed  by  the  plaintiff  is  no  part  of  the  document  signed  by  the  de- 
fendant, nor  is  referred  to  in  it ;  and  the  jury  have  found  that  it  does 
not  represent  the  real  contract.  Boydell  v.  Drumraond.^  The  admis- 
sion of  extrinsic  evidence  could  not  be  justified  on  any  principle  that 
would  not  justify  admitting  proof  by  parol  of  the  whole  contract,  of 
which  the  statute  requires  written  evidence  :  the  circumstance  required 
is  the  very  cii'cumstance  that  the  plaintiff  was  a  party  to  the  contract. 
The  contention  of  the  other  side  would  as  justly  apply  to  shewing  the 
seller,  when  his  name  was  not  mentioned  at  all  in  the  document ;  for 
here  the  plaintiff  is  not  mentioned  as  seller,  but  his  name  is  introduced 
as  part  of  the  description  of  the  goods.  It  would  be  equally  open  to 
John  Smith  to  prove  that  he  was  the  seller,  and  there  would  be  noth- 
ing in  the  document  to  contradict  it.  The  case  is  therefore  entirely 
within  the  decision  in  Champion  v.  Plummer ;  '^  and  the  words  there 
used  by  Mansfield,  C.  J.,  apj^ly :  "  How  can  that  be  said  to  be  a  contract, 
or  a  memorandum  of  a  contract,  which  does  not  state  who  are  the 
contracting  parties  ?  "  They  also  cited  Blackburn,  Contr.  of  Sale,  p. 
54.  Cur.  adv.  vult. 

The  judgment  of  the  court  (Pollock,  C.  B.,  Martln",  Bramwell, 
and  Ch.\j^nell,  BB.)  was  delivered  by 

Bramwell,  B.  The  question  we  have  had  to  consider  in  this  case 
is  whether  the  document  relied  on  by  the  plaintiff  was  a  sufficient  note 
or  memorandum  in  writing  to  bind  the  defendant  under  §  17  of  the 
Statute  of  Frauds.  The  document  was  signed  by  the  defendant,  and 
was  in  the  following  teiTus  :  "  D.  Spooner  agrees  to  buy  the  whole  of 
the  lots  of  marble  purchased  by  Mr.  Vandenbergh,  now  lying  at  the 
Lyme  Cobb,  at  Is.  per  foot."  Can  the  essentials  of  the  contract  be 
collected  from  this  document  by  means  of  a  fair  construction  or  reason- 
able intendment  ?  We  have  come  to  the  conclusion  that  they  cannot, 
inasmuch  as  the  seller's  name  as  seller  is  not  mentioned  in  it,  but 
occurs  only  as  part  of  the  description  of  the  goods. 

Martin,  B.  I  am  not  well  satisfied  as  to  what  is  the  real  meaning 
of  the  document,  but  I  am  not  prepared  to  differ  from  the  rest  of  the 
court.  Hide  absolute. 

1  11  East,  142.  2  1  B.  &  P.  (N.  R.)  252,  254. 


534  NEWELL   V.   RADFORD.  [CHAP.    I. 

NEWELL  V.  RADFORD. 

In  the  Common  Pleas,  November  6,  1867. 

[Reported  in  Law  Reports,  3  Common  Pleas,  52.] 

Declaration  for  non-delivery  of  32  sacks  of  flour. 

Plea,  non  assumpsit. 

The  case  was  tried  before  Kelly,  C.  B.,  at  Merionethshire  summer 
assizes,  when  it  was  proved  that  the  plaintiff  was  a  baker,  and  the 
defendant  a  flour  dealer ;  and  that  John  Williams,  a  duly  authorized 
agent  of  the  defendant,  bad  called  on  the  plaintiff  and  solicited  orders, 
and  had  made  the  following  entry  in  one  of  the  plaintiff's  books :  — 

Mr.  Newell,  32  sacks  culasses  at  39*.,  280  lbs.,  to  wait  orders. 

John  Williams. 
June  8. 

The  plaintiff  subsequently  gave  orders  for  the  delivery  of  part  of 
the  flour;  but  the  defendant  refused  to  deliver  it.  A  correspondence 
was  put  in,  which  had  taken  place  subsequently  to  "the  purchase 
between  the  plaintiff  and  defendant  respecting  the  delivery  of  the  flour. 

A  verdict  was  found  for  the  plaintiff  for  £20,  and  leave  was  reserved 
to  the  defendant  to  move  to  enter  a  nonsuit  or  a  verdict  on  the  ground 
that  there  was  no  sufficient  memorandum  of  the  contract  to  satisfy 
the  Statute  of  Frauds. 

J.  A.  Russell  moved  for  a  rule  pursuant  to  the  leave  reserved. 

The  written  memorandum  must  shew  distinctly  all  the  particulars 
of  the  contract  in  order  to  satisfy  the  Statute  of  Frauds,  and  parol 
evidence  is  not  admissible  to  explain  any  part  of  the  contract  which  is 
left  in  doubt.  Here  it  is  impossible  to  tell  from  the  memorandum 
which  of  the  parties  was  the  buyer  and  which  the  seller,  and  it  is 
therefore  insufficient.  The  case  of  Vandenbergh  v.  Spooner  ^  is  a 
direct  authority  that  such  a  memorandum  is  insufficient. 

[Byles,  J.  Here  there  is  more  than  the  mere  memorandum ;  for 
there  is  evidence  that  the  plaintiff  was  a  baker,  who  would  therefore 
require  flour,  and  the  defendant  a  person  who  was  in  the  habit  of 
sellino-  it.  In  Vandenbergh  v.  Spooner  there  was  no  evidence  that  the 
plaintiff  was  a  dealer  in  marble.] 

That  evidence  is  parol,  and  therefore  not  admissible  :  it  must  appear 
from  the  writing  itself  who  is  the  buyer  of  the  goods. 

[Keating,  J.,  referred  to  Sari  v.  Bourdillon.^] 

In  that  case  the  book  had  the  title  "  order-book,"  and  the  plaintiff's 
name  written  in  it ;  and  it  appeared  therefore  from  the  written  docu- 
1  Law  Kep.  1  Ex.  316.  2  1  C.  B.  (n.  s.)  188,  26  L.  J.  (C.  P.)  78. 


SECT,    VI.]  NEWELL   V.    RADFORD,  535 

ment  itself  that  the  plaintiffs  were  recei^-ing  the  order.  In  this  case 
it  is  not  shewn  what  was  the  nature  of  the  plaintiff's  book  in  which 
the  entry  was  made. 

[BovTLL,  C.  J.  The  surrounding  circumstances  are  always  admis- 
sible to  explain  any  ambiguity  in  the  written  contract.  In  Spicer  v. 
Cooper  ^  parol  evidence  was  admitted  to  shew  that  the  i)rice  of  c€5 
mentioned  in  the  memorandum  meant  by  the  custom  of  the  trade 
£5  per  cwt. 

WiLLES,  J.  Macdonald  v.  Longbottom^  is  a  still  stronger  case. 
There  parol  evidence  was  admitted  to  shew  that  "  your  wool"  included 
wool  bought  of  other  farmers  besides  that  which  came  from  the  plain- 
tiff's own  slieep.] 

The  same  argument  would  have  applied  in  Vandenbergh  v.  Spooner, 
and  that  case  was  cited ;  but  the  Court  of  Exchequer  held  extrinsic 
evidence  inadmissible.  Williams  v.  Lake  ^  was  a  case  before  Vanden- 
bergh V.  Spooner,  and  to  a  similar  effect.  There  the  name  of  the  per- 
son to  whom  a  guaranty  was  given  was  not  mentioned  in  the  written 
memorandum,  and  it  was  held  to  be  insufficient.  The  correspondence 
is  not  such  that  the  contract  could  be  gathered  from  it  wdthin  the 
authority  of  the  cases,  and  it  makes  no  reference  to  the  written  memo- 
randum. 

BoviLL,  C.  J.  In  this  case  it  is  not  disputed  that  the  signature  of 
the  ajrent  Williams  would  be  sufficient  to  bind  the  defendant,  but  it  is 
contended  that  the  written  memorandum  does  not  sufficiently  shew 
which  of  the  parties  was  the  buyer.  At  first  siglit  this  indeed  might 
not  appear  quite  clear,  except  to  a  man  in  the  trade ;  but  it  has  always 
been  held  that  you  may  prove  what  the  parties  would  have  understood 
to  be  the  meaning  of  the  words  used  in  the  memorandum,  and  thai  for 
this  purpose  parol  evidence  of  the  surrounding  circumstances  is  admis- 
sible ;  and  the  cases  of  Macdonald  v.  Longbottom  ^  and  Spicer  v.  Cooper  ^ 
are  authorities  to  that  effect.  In  this  case  it  was  shewn  that  the  plain- 
tiff was  a  baker,  and  that  the  defendant  \vas  a  dealer  in  flour  which 
the  plaintiff  wou\d  require  for  his  trade ;  and  looking  at  the  nature  of 
the  entry  in  relation  to  those  facts,  I  think  there  can  be  no  reasonable 
doubt  that  it  was  a  sale  from  the  defendant  to  the  plaintiff.  If  liow- 
ever  there  were  any  doubt,  looking  at  the  entry  alone,  it  is  set  at  rest 
by  the  two  letters  which  passed  between  the  plaintiff  and  defendant, 
which  sufficiently  identify  the  contract,  and  in  which  the  relative  posi- 
tions of  the  parties  as  buyer  and  seller  is  distinctly  stated. 

WiLLES,  J.     I  am  of  the  same  opinion.     If  the  case  of  Vandenbergh 

1  1  Q.  B.  424. 

2  1  E.  &  E.  977,  28  L.  J.  (Q.  B.)  293;  in  error,!  E.  &  E.  987,  29  L.  J.  (Q.  B.) 
256. 

3  2E.  &E.  349,  29  L.J.  (Q.  B.)  1. 


536  NEWELL   V.    RADFORD.  [CHAP.    I. 

V.  Spooner  ^  had  been  in  point,  we  should  have  gi-anted  a  rule,  and  per- 
haps made  it  absolute,  leaving  the  parties  to  take  the  opinion  of  the 
Court  of  Exchequer  Chamber.  I  think  however  that  case  is  distin- 
guishable. I  own  I  have  considerable  difficulty  in  understanding  that 
case ;  but  if  I  do  so  rightly,  it  amounts  to  this,  that  a  written  agreement, 
"  A.  agrees  to  buy  B.'s  horse  for  £10,"  is  not  sufficient  to  satisfy  the 
Statute  of  Frauds,  because  it  cannot  be  inferred  by  reasonable  intend- 
ment that  B,  is  the  seller.  I  cannot  help  observing  that  that  seems  to 
be  an  extreme  case.  The  present  however  does  not  come  within  its 
authority,  because  there  was  a  regular  entry  by  the  defendant's  agent 
in  the  plaintiff's  book  describing  what  was  to  be  sold,  and  the  defend- 
ant was  proved  to  be  a  person  who  sold  such  goods,  and  the  plaintiff  a 
person  who  would  require  to  purchase  such  goods  for  the  purpose  of 
his  trade.  Taking  therefore  the  entry  in  connection  with  those  circum- 
stances, I  think  it  sufficiently  appears  from  it  who  was  the  buyer  and 
who  the  seller  of  the  goods.  There  was  moreover  a  correspondence 
which  seems  to  be  sufficiently  connected  with  the  entry  to  be  available 
if  necessary,  and  from  which  the  relation  of  the  parties  as  buyer  and 
seller  clearly  appears. 

Byles,  J.  I  am  of  the  same  opinion.  Mr.  Russell  has  assumed  that 
the  words  "Mr.  Newell"  are  in  the  nominative  case,  but  that  would 
not  make  sense.  I  think  it  would  be  reasonably  clear  that  they  were 
in  the  oblique  case,  even  if  the  memorandum  had  been  on  a  loose  slip 
of  paper ;  but  all  doubt  is  removed  by  the  fact  that  it  is  an  entry  in  the 
plaintiff's  book.  But,  further,  evidence  of  surrounding  facts  is  admis- 
sible to  explain  the  memorandum,  as  evidence  has  been  held  admissible 
to  settle  the  meaning  of  the  price  or  of  the  quantity  of  goods  sold 
mentioned  in  a  memorandum  (Macdonald  v.  Longbottom  ^),  and  even  to 
add  a  new  party  as  principal ;  and  the  evidence  in  this  case  shews  that 
the  occupations  of  the  parties  were  respectively  such  as  to  be  consist- 
ent only  with  the  plaintiff  being  the  buyer  of  the  goods.  There  is  this 
distinction  from  the  case  of  Vandenbergh  v.  Spooner :  ^  the  parol  evi- 
dence which  was  there  tendered  was  not  to  shew  the  surrounding  cir- 
cumstances or  the  position  of  the  plaintiff  as  a  dealer  in  marbles,  but 
that  the  parties  had  expressed  the  contract  also  in  other  words,  and 
so  to  vary  the  tenns  of  the  contract  itself  I  entirely  concur  in  the 
observations  of  the  Lord  Chief  Justice  and  my  brother  Willes. 

Keating,  J.  I  am  of  the  same  opinion.  I  think  it  is  impossible  to 
look  at  the  entry  without  seeing  that  it  is  a  contract  between  Newell 
and  Williams  Avith  relation  to  the  flour.  Then  it  is  said  that  it  cannot 
be  ascertained  from  the  memorandum  which  is  the  buyer  and  which 

>  Law  Rep.  1  Ex.  816. 

2  1  E.  &  E.  977,  28  L.  J.  (Q.  B.)  293;  in  error,  1  E.  &  E.  987,  29  L.  J.  (Q.  B.) 
256. 


SECT.    VI.]  MERRITT   V.    CLASON.  537 

the  seller ;  but  we  may  look  at  the  surrounding  circumstances,  and  it 
appears  that  the  entry  is  in  the  plaintiff's  book,  and  that  he  is  a  baker, 
and  that  Williams  was  the  agent  of  the  defendant,  who  is  a  flour  mer- 
chant. I  think  therefore  it  is  clear,  even  without  the  correspondence, 
what  was  the  relation  of  the  parties  to  each  other;  and  if  that  be 
referred  to,  it  leaves  no  doubt  whatever  on  the  case. 

Hule  refused. 


MERRITT  AND   MERRITT  v.    CLASON. 

Supreme  Court  of  New  York,  January  Term,  1815. 

[Reported  in  12  Johnson,  102.] 

This  was  an  action  of  assumpsit  tried  at  the  New  York  sittings  in 
April  last  before  Mr.  Justice  Yates. 

John  Townsend,  a  Avitness  for  the  plaintiffs,  testified  that  he  was  a 
broker,  and  was  employed  by  the  defendant  to  purchase  rye.  On  the 
18th 'of  February,  1812,  he  applied  to  Isaac  Wright  &  Son,  the  agents 
of  the  plaintiffs  in  New  York,  and  agreed  to  purchase  of  them  10,000 
bushels  of  rye  at  II  per  bushel,  and  they  authorized  him  to  sell  the 
same  to  the  defendant  on  the  terms  agreed  on ;  the  witness  informed 
the  defendant  of  the  terms  of  sale,  and  was  directed  by  him  to  make 
the  purchase  accordingly.  The  witness  then  went  to  Wright  &  Son 
and  closed  the  bargain  with  them  as  agents  of  the  plaintiffs,  and  in 
their  presence  wrote  in  his  memorandum  book  with  a  lead-pencil  as 
follows :  "  February  18th,  bought  of  Daniel  &  Isaac  Merritt  (the  plain- 
tiffs), by  Isaac  Wright  &  Son,  10,000  bushels  of  good  merchantable 
rye  at  $1  per  bushel,  deliverable  in  the  last  ten  or  twelve  days  of  April 
next  alongside  any  vessel  or  wharf  the  purchaser  may  direct,  for  Isaac 
Clason  of  New  York,  payable  on  delivery."  All  the  other  memoranda 
in  the  same  book  were  written  with  a  lead-pencil.  Soon  afler  the  pur- 
chase was  thus  completed  the  witness  informed  the  defendant  of  it, 
but  did  not  give  him  a  copy  of  the  memorandum. 

The  plaintiffs  repeatedly  tendered  the  rye  to  the  defendant  according 
to  the  terms  of  the  agreement,  particularly  on  the  14th  and  30th  days 
of  April,  and  the  defendant  refused  to  accept  and  pay  for  it.  On  the 
1st  of  May  the  plaintiffs  addressed  a  letter  to  the  defendant,  giving  him 
notice  that,  unless  he  received  and  paid  them  for  the  rye  according  to 
the  contract,  they  should,  on  Tuesday  (the  4th  of  May)  at  noon,  cause 
the  same  to  be  sold  at  public  auction  at  the  Tontine  coffee-house,  and 


538  MEERITT   V.    CLASON.  [CHAP.   I. 

hold  him  accountable  for  the  deficiency,  if  it  should  sell  for  less 
than  the  price  mentioned  in  the  contract,  and  the  expenses.  The 
defendant  continuing  to  refuse  to  receive  the  rye  or  to  pay  for  it,  it 
was  according  to  the  notice  sold  at  public  auction,  and  the  present  suit 
was  brought  to  recover  the  difference  between  the  net  proceeds  of  such 
sale  and  the  contract  price. 

A  verdict  was  taken  for  the  plaintiffs,  subject  to  'the  opinion  of  the 
court  on  a  case  containing  the  facts  above  stated,  and  which  either 
party  was  to  be  at  liberty  to  turn  into  a  special  verdict. 

Wells,  for  the  plaintiffs.  The  points  in  this  cause  have  been 
repeatedly  discussed  and  settled.  Townsend  the  broker  acted  as  the 
agent  of  both  parties ;  as  such  agent  he  was  competent  to  make  a  con- 
tract obligatory  on  both.  It  is  distinctly  stated  that  he  was  an  agent 
for  both  parties ;  besides  he  was  a  broker,  and  as  such  is  the  agent  of 
both. 

To  make  the  contract  valid  within  the  Statute  of  Frauds  it  is  not 
necessary  that  the  writing  should  be  actually  signed  by  the  party  or 
his  agent.  Signing  does  not  ex  vi  tennini  mean  that  the  name  of  the 
party  should  be  subscribed.  It  is  enough  if  the  contract  be  in  writing 
and  authenticated  by  him.  The  name  may  be  at  the  top  or  in  any 
part  of  the  contract  or  insti-ument.  In  Wright  v.  Dannah  ^  the  distinc- 
tion is  made  between  a  memorandum  made  by  one  of  the  parties  and 
assented  to  by  the  other  and  a  memorandum  made  by  a  third  person. 
The  wi-itten  memorandum  in  this  case  contained  every  thing  that  was 
necessary  to  shew  the  contract  between  the  parties.  No  parol  evi- 
dence was  requisite  to  explain  their  intention  or  the  terms  of  the  agree- 
ment. This  is  the  true  test  of  the  validity  of  a  contract  under  the 
Statute  of  Frauds.     The  authority  of  the  agent  need  not  be  in  writing. 

Baldwin,  contra.  How  a  person  can  be  the  agent  of  both  parties  is 
not  easy  to  comprehend.  An  auctioneer  is  no  further  the  agent  of  the 
purchaser  than  to  put  down  his  bid.  A  broker,  if  he  is  agent  for  the 
vendor,  is  bound  to  sell  for  the  highest  price  ;  if  he  is  agent  for 
the  buyer,  it  is  his  duty  to  purchase  at  the  lowest  price  that  can  be 
obtained.  He  is  in  such  case  acting  in  two  distinct  characters,  having 
distinct  duties  to  perform  in  direct  opposition  to  each  other.  The 
English  courts  have  proceeded  on  erroneous  principles  in  regard  to 
this  subject. 

Again,  as  to  bought  and  sold  notes  as  they  are  called,  the  mere 
memorandum  in  the  broker's  book  is  not  enough.  He  must  give  a 
copy  of  the  note  to  the  buyer  and  another  to  the  seller.  Besides,  the 
place  of  delivery  is  not  mentioned  in  the  contract. 

In  Champion  v.  Plummer  ^  it  was  held  that  a  memorandum  signed  by 
the  seller  only  was.  not  sufficient.     The  plaintiffs  in  this  case  were  not 
bound ;  and  if  they  were  not,  neither  can  the  defendant  be  bound. 
1  2  Campb.  203.  2  i  n.  r.  252. 


SECT.    VI.]  MERRITT   V.    CLASON.  539 

In  Cooper  v.  Smith  ^  there  was  no  signature  of  either  party ;  and  the 
court  held  that  the  reading  over  the  memorandum  to  the  purchaser, 
and  his  assenting  to  it,  was  not  sufficient  to  bind  him. 

Again,  the  memorandum  in  this  case  was  Avritten  with  a  lead-pencil. 
Is  this  such  a  writing  as  was  intended  by  the  Statute  of  Frauds?  If  it 
is,  then  a  writing  on  a  slate,  or  with  chalk  on  a  door  or  wall,  would  be 
a  good  memorandum  within  the  statute.  It  maybe  completely  cffiiced 
in  a  moment  wath  a  piece  of  India  rubber,  and  another  contract  written 
in  its  place  without  the  possibility  of  detecting  the  fraud.  This  would 
not  be  the  case  if  it  were  written  with  ink.  Such  a  writing  in  pencil 
cannot  satisfy  the  object  of  this  statute.  It  is  no  better  than  tracing 
characters  in  the  sand. 

It  is  said  that  the  signature  of  the  party  is  not  requisite.  But  where 
are  the  cases  in  which  such  a  doctrine  is  to  be  found  ?  In  the  cases 
relative  to  wills  the  devise  was  Avritten  by  the  testator,  though  not 
subscribed  by  him.  If  an  instrument  or  memorandum  is  not  written 
by  a  party,  its  not  being  signed  or  subscribed  by  him  is  evidence  that 
he  does  not  intend  it  to  be  regarded  as  his  contract.  It  would  be 
extremely  injurious  to  give  authority  to  brokers  to  bind  parties  by 
such  loose  memoranda  of  a  contract. 

B.  B.  Ogclen^  on  the  same  side.  I  do  not  deny  that  according  to 
the  cases  decided  a  broker  is  to  be  considered  as  the  agent  of  both 
parties,  and  that  his  authority  need  not  be  in  writing.  But  to  make  a 
valid  agreement  within  the  Statute  of  Frauds,  the  writing  must  be 
signed  by  the  party  himself  who  is  to  be  charged,  or  by  his  authorized 
agent.  If  the  contract  is  made  by  the  principal,  it  must  be  signed  by 
him  ;  if  by  his  agent,  it  must  be  signed  by  the  agent.  I  do  not  say  it 
must  be  subscribed,  but  it  must  be  signed  in  some  part  of  the  contract. 
In  Clinan  v.  Cooke  ^  the  agreement  was  signed  by  the  agent ;  and  it 
being  shewn  that  he  was  an  agent,  his  principal  was  held  to  be  bound. 

In  all  the  cases  cited,  where  the  agreements  were  held  binding,  it 
will  be  found  that  they  were  signed  by  the  agent,  who  delivered  a  note 
of  the  bargain  and  sale.  The  point  raised  here  was  not  discussed  or 
decided  in  Bailey  v.  Ogden.^ 

Again,  it  is  worthy  of  consideration  what  sort  of  writing  was  intended 
by  the  statute,  which  was  made  to  prevent  fi-auds  that  might  arise  fi-om 
trusting  to  the  memory  of  witnesses,  by  requiring  a  permanent  and 
unchangeable  evidence  of  the  contract.  A  writing  in  ink  is  indelible  ; 
or  if  etfaced  and  altered,  the  erasure  or  alteration  may  be  easily 
detected,  which  would  not  be  the  case  of  a  writing  with  a  lead-pencil. 

S.  Jones^  Jr.,  in  reply.  The  object  of  the  Statute  of  Frauds  was 
that  the  terms  of  the  contract  should  be  precise  and  certain  and  prop- 
erly authenticated.  If  these  essential  points  are  obtained,  the  statute 
pays  little  regard  to  form.  Isaac  Clason  the  purchaser,  by  Townscnd 
1  15  East,  103.  2  1  Sch.  &  Lef.  22.  »  3  John.  399. 


540  MEERITT   V.    CLASON.  [CHAP.    I. 

his  agent,  is  mentioned  in  the  memorandum,  and  that  is  a  sufficient 
signing.  It  is  not  necessary  that  the  agent  should  sign  as  agent  when 
he  puts  down  the  name  of  his  principah  Besides,  the  agent  informed 
Clason  of  the  contract,  and  he  made  no  objection  to  it. 

The  broker  is  the  go-between  of  the  parties.  He  goes  to  the  vendor 
and  inquires  his  price ;  he  then  goes  to  the  vendee  to  know  if  he  will 
give  the  price  demanded ;  and  if  he  assents,  he  concludes  the  bargain 
with  the  vendor.  Here  is  no  conflict  of  duties.  His  agency  for  both 
parties  is  clear  and  simple.  He  is  the  means  of  communication  between 
them.  They  speak  and  act  through  him.  He  stands  indifferent 
between  them.  The  case  of  Cooper  v.  Smith  turned  on  the  sufficiency 
of  the  memorandum,  not  on  the  signing  of  the  party  or  his  agent. 

Either  party  may  demand  a .  copy  of  the  memorandum  from  the 
broker.  As  to  the  danger  of  fraud  from  the  memorandum  being 
wi'itten  with  a  lead-pencil,  the  same  danger  would  exist  if  it  were 
wi'itten  in  ink.  If  the  broker  were  disposed  to  be  fraudulent,  he  might 
easily  contrive  to  alter  the  agreement  or  substitute  another  in  its  place. 
But  this  danger  wholly  ceases  where  each  party  has  a  copy  of  the  note 
or  memorandum  made  by  the  broker.  And  it  is  a  rule  of  convenience 
in  England,  but  not  an  indispensable  requisite,  that  copies  of  the  memo- 
randum should  be  delivered  to  the  parties. 

Platt,  J.,  delivered  the  opinion  of  the  court.  The  only  point  is 
whether  the  memorandum  made  by  John  Townsend  was  a  sufficient 
memorandum  of  the  contract  within  the  Statute  of  Frauds  to  bind  the 
defendant. 

It  is  objected  by  the  defendant's  counsel,  — 

1.  That  the  memorandum  is  not  "in  Avriting,"  being  made  with  a 
lead-pencil  only ; 

2.  That  it  is  not  "  signed  "  by  the  defendant  nor  by  his  agent ; 

3.  Tha*  it  is  not  binding  on  the  defendant,  because  his  agent  did  not 
furnish  him  with  a  copy  of  it. 

I  have  no  doubt  that  the  memorandum  required  by  the  statute  may 
as  well  be  written  with  a  lead-j^encil  as  with  a  pen  and  ink ;  and  it  is 
observable  that  in  most  of  the  reported  cases  on  this  head  the  memo- 
randa were  written  with  a  lead-pencil,  and  no  counsel  until  now  has 
ever  raised  that  objection. 

I  think  it  clear  also  from  the  authorities  that  this  memorandum  was 
sisrned  according  to  the  statute. 

It  is  not  disputed  that  the  authorization  of  the  agent  for  such  pur- 
pose need  not  be  in  writing.  In  the  body  of  this  memorandum  the 
name  of  Isaac  Clason  the  defendant  is  written  by  his  agent  whom  he 
had  expressly  authorized  to  make  this  contract.  The  memorandum 
therefore  is  equally  binding  on  the  defendant  as  if  he  had  written  it 
with  his  own  hand ;  and  if  he  had  used  his  own  hand  instead  of  the 
hand  of  his  agent,  the  law  is  well  settled  that  it  is  immaterial  in  such 


SECT.    YI.]  CLASON   V.    BAILEY.  541 

a  case  whether  the  name  is  written  at  the  top  or  in  the  body  or  at  the 
bottom  of  the  memoraii<luin.  It  is  equally  a  signing  within  the  statute. 
Saunderson  v.  Jackson  and  Another,  2  Bos.  &  Pull.  238;  1  Esp.  199; 
1  P.  Wms.  770,  note  1. 

The  third  objection  is  absurd.  If  the  defendant's  agent  neglected 
his  duty  in  not  furnishing  his  employer  with  a  copy  of  this  memo- 
randum, it  certainly  cannot  affeCt  the  rights  of  the  plaintifts  under  that 
agreement. 

The  memorandum  states  with  reasonable  certainty  every  essential 
part  of  the  agreement.  The  court  are  of  opinion  that  the  plaintiffs  are 
entitled  to  judgment.  Judgment  for  the  plaintiffs. 


The  Executoes  of  ISAAC  CLASON,  Plaintiff's  m  Error^  v. 
JOHN  H.  BAILEY  and  ARNOLDUS  VOOKHEES,  Defend- 
ants in  Error. 

New  York  Court  of  Errors,  March  20,  1817. 

[Reported  in  14  Johnson,  484.] 

[This  cause  came  before  this  court  on  a  writ  of  error  to  the  Supreme 
Court.  The  facts  were  substantially  the  same  as  in  the  preceding  case 
of  Merritt  v.  Clason.  There  was  a  special  verdict  on  which  the  court 
below  gave  judgment  for  the  plaintiffs  below;  whereupon  the  defend- 
ant brought  a  writ  of  error. ^] 

The  cause  was  argued  by  Van  Beuren,  Attorney-General,  for  the 
plaintiffs  in  error;  and  by  S.  Jones.,  Jr.,  and  Henry.,  for  the  defendants 
in  error. 

For  the  plaintiffs  in  error  it  was  contended,  first,  that  there  was  not 
a  sufficient  memorandum  in  writing  within  the  Statute  of  Frauds  ; 
secondly,  that  the  agreement  was  not  signed  by  both  parties.  In  sup- 
port of  these  positions  the  following  cases  were  cited :  1  Esp.  Rep.  105  ; 
Beawes'  Lex  Merc.  495,  496;  Sugden's  L.  of  Vend.  43,  62,  63;  5  Term 
Rep.  63;  7  Term  Rej).  16,  204;  1  East's  Rep.  194;  1  Sch.  &  Lef  20;  2 
Sch.  &  Lef.  4;  3  Johns.  Rep.  419;  4  Cranch,  235;  2  Bl.  Com.  297;  12 
Johns.  Rep.  76. 

For  the  defendants  in  error  it  was  insisted  that  the  broker  was 
agent  for  both  buyer  and  seller,  and  that  the  memorandum  of  the 
contract  made  by  him  was  sufficient  to  bind  both  parties.  They  cited 
3  Burr.  1921;  3  Term  Rep.  149;  7  East,  558 ;  7  Vesey,  265;  2  Caines, 

1  To  avoid  repetition,  this  short  statement  is  substituted  for  the  statement  of  facts 
contained  in  tlio  original  report.  —  Ed. 


542  CLASON  V.    BAILEY.  [CHAP.  I. 

117 ;    8  Vin.  Abr.  126,  §  5 ;    3  Atk.  503  ;    2  Bos.  &  Pull.  238 ;    5  Vin. 
Abr.  527,  pi.  17 ;  1  Bl.  Com.  509. 

The  Chancellor.  The  case  struck  me  upon  the  argument  as  being 
very  plain.  But  as  it  may  have  appeared  to  other  members  of  the 
court  in  a  diiFerent  or  at  least  in  a  more  serious  light,  I  will  very 
briefly  state  the  reasons  why  I  am  of  opinion  that  the  judgment  of  the 
Supreme  Court  ought  to  be  afiirmed. 

The  contract  on  which  the  controversy  arises  was  made  in  the 
following  manner :  — 

Isaac  Clason  employed  John  Townsend  to  purchase  a  quantity 
of  rye  for  him.  He  in  pursuance  of  this  authority  purchased  of 
Bailey  &  Voorhees  3000  bushels  at  one  dollar  per  bushel,  and  at  the 
time  of  closing  the  bargain  he  wrote  a  memorandum  in  his  memo- 
randum book,  in  the  presence  of  Bailey  and  Voorhees,  in  these  words : 
"  February  29th,  bought  for  Isaac  Clason  of  Bailey  &  Voorhees 
3000  bushels  of  good  merchantable  rye,  deliverable  from  the  5th  to 
the  15th  of  April  next,  at  one  dollar  per  bushel,  and  payable  on 
delivery." 

The  terms  of  the  sale  and  purchase  had  been  previously  com- 
municated to  Clason,  and  approved  of  by  him ;  and  yet  at  the  time 
of  delivery  he  refused  to  accept  and  pay  for  the  rye. 

The  objection  to  the  contract  on  the  part  of  Clason  is  that  it  was 
not  a  valid  contract  within  the  Statute  of  Frauds. 

1.  Because  the  conti'act  was  not  signed  by  Bailey  &  Voorhees; 

2.  Because  it  was  written  with  a  lead-pendil  instead  of  pen  and  ink. 
I  will  examine  each  of  these  objections. 

It  is  admitted  that  Clason  signed  this  contract  by  the  insertion 
of  his  name  by  his  authorized  agent  in  the  body  of  the  memorandum. 
The  counsel  for  the  plaintiff  in  error  do  not  contend  against  the 
position  that  this  was  a  suflicient  subscription  on  his  part.  It  is  a 
point  settled  that  if  the  name  of  a  party  appears  in  the  memorandum, 
and  is  applicable  to  the  whole  substance  of  the  writing,  and  is  put 
there  by  him  or  by  his  authority,  it  is  immaterial  in  what  part  of  the 
instrument  the  name  appears,  whether  at  the  top,  in  the  middle,  or  at 
the  bottom.  Saunderson  v.  Jackson,  2  B.  &  Puller,  238 ;  Welford  v. 
Beazely,  3  Atk.  503  ;  Stokes  v.  Moore,  cited  by  Mr.  Coxe  in  a  note  to 
1  P.  Wms.  771.  Forms  are  not  regarded,  and  the  statute  is  satisfied 
if  the  terms  of  the  contract  are  in  writing  and  the  names  of  the  con- 
tracting parties  appear.  Clason's  name  was  inserted  in  the  contract 
by  his  authorized  agent ;  and  if  it  were  admitted  that  the  name  of  the 
other  party  was  not  there  by  their  direction,  yet  the  better  opinion  is 
that  Clason,  the  party  who  is  sought  to  be  charged,  is  estopped  by  his 
name  from  saying  that  the  contract  was  not  duly  signed  within  the 
purview  of  the  Statute  of  Frauds ;  and  that  it  is  sufiicient  if  the  agree- 
ment be  signed  by  the  party  to  be  charged. 


SECT.    VI.]  CLASON   V.    BAILEY.'  543 

It  appears  to  me  tliat  this  is  the  result  of  the  weight  of  authority 
botli  ill  the  courts  of  Law  and  equity. 

In  Balhird  v.  Walker,  B  Johns.  Cases,  60,  decided  in  tlie  Supreme 
Court  in  1802,  it  was  held  that  a  contract  to  sell  land,  signed  by  the 
vendor  only  and  accepted  by  the  other  party,  was  binding  on  the 
vendor,  who  w^as  the  party  there  sought  to  be  charged.  So  in  Roget 
V.  Merritt,  2  Caines,  117,  an  agreement  concerning  goods,  signed  by 
the  seller  and  accepted  by  the  buyer,  was  considered  a  valid  agree- 
ment, and  binding  on  the  party  who  signed  it. 

These  were  decisions  here,  under  both  branches  of  the  statute,  and 
the  cases  in  the  English  courts  are  to  the  same  effect. 

In  Saunderson  v.  Jackson,  2  Bos.  &  Pull.  238,  the  suit  was  against 
the  seller  for  not  delivering  goods  according  to  a  memorandum  signed 
by   him   only ;    and    judgment  was  given   for  the  plaintiff,  notwith- , 
standing  the  objection  that  this  w^is  not  a  sufficient  note  within  the 
statute.     In  Champion  v.  Plummer,  4  Bos.  &  Pull.  252,  the  suit  was 
against  the  seller,  Avho  alone  had  signed  the  agreement.     No  objection 
w^as  made  that  it  was  not  signed  by  both  parties ;   but  the  memoran- 
dum was  held  defective,  because   the  name  of  the  buyer  was  not 
mentioned  at    all,  and  consequently  there  was  no  certainty  in  the 
writing.      Again,  in  Egerton  v.  Mathews,  6  East,  307,  the  suit  was 
on  a  memorandum  for  the    purchase  of  goods,  signed   only  by  the 
defendant,  who  was  the  buyer;  and  it  was  held  a  good   agi-eement 
within  the  statute.     Lastly,  in  Allen  v.  Bennet,  3  Taunton,  169,  the 
seller  was  sued  for  the  non-delivery  of  goods  in  pursuance  of    an 
agreement  signed  by  him  only ;  and  judgment  was  rendered  for  the 
plaintiff.     In  that  case,  Mansfield,  C.  J.,  made  the  observation  that 
"  the  cases  of  Egerton  y.  Mathews,  Saunderson  v.  Jackson,  and  Cham- 
pion V.  Plumtner,  suppose  a  signature  by  the  seller  to  be  sufficient ; 
and  every  one  knows  it  is  the  daily  practice  of  the  Court  of  Chancery 
to  establish  contracts  signed  by  one  person  only,  and  yet  a  court  of 
equity  can  no  more  dispense  with  the  Statute  of  Frauds  than  a  court 
of  law  can."     So  Lawrence,  J.,  observed  that  "the    statute   clearly 
supposes  the  probability  of  there  being  a  signature  by  one  person 
only." 

If  we  pass  fi-om  the  decisions  at  law  to  the  courts  of  equity,  we 
meet  with  the  same  uniform  construction.  Indeed  Lord  Eldon  has 
said,  18  Vesey,  183,  that  chancery  professes  to  follow  coui-ts  of  law 
in  the  construction  of  the  Statute  of  Frauds. 

In  Ilatton  v.  Gray,  2  Chan.  Cas.  164,  1  Eq.  Cas.  Abr.  21,  pi.  10, 
the  purchaser  of  land  signed  tlie  agreement,  and  not  the  other  party ; 
and  yet  the  agreement  was  held  by  Lord  Keeper  North  to  be  binding 
on  him,  and  this  too  on  a  bill  for  a  specific  performance.  So  in 
Coleman  v.  Upcot,  5  Viner,  527,  pi.  17,  the  Lord  Keeper  Wright  held 
that  an  agreement  concerning  lands  was  within  the  statute  if  signed 


644  .CLASON   V.    BAILEY.  [CHAP.    I. 

by  the  party  to  be  charged,  and  that  there  was  no  need  of  its  being 
signed  by  both  parties,  as  the  plaintiff  by  his  bill  for  a  specific  per- 
formance had  submitted  to  perform  what  was  reqviired  on  his  part  to 
be  performed. 

Lord  Hardwicke  repeatedly  adopted  the  same  language.  In 
Buckhouse  v.  Crosby,  2  Eq.  Cas.  Abr.  32,  pi.  44,  he  said  he  had  often 
known  the  objection  taken  that  a  mutual  contract  in  writing  signed 
by  both  parties  ought  to  appear,  but  that  the  objection  had  as  often 
been  overruled ;  and  in  Welford  v.  Beazely,  3  Atk.  503,  he  said 
there  were  cases  where  writing  a  letter,  setting  forth  the  terms  of  an 
agreement,  was  held  a  signing  within  the  statute ;  and  in  Owen  v. 
Davies,  1  Yes.  82,  an  agreement  to  sell  land,  signed  by  the  defendant 
only,  was  held  binding. 

The  modern  cases  are  equally  explicit.  In  Cotton  v.  Lee,  before  the 
Lords  Commissioners  in  1770,  which  is  cited  in  2  Bro.  564,  it  was 
deemed  sufficient  that  the  party  to  be  charged  had  signed  the  agree- 
ment. So  in  Seton  v.  Slade,  7  Vesey,  275,  Lord  Eldon,  on  a  bill  for  a 
specific  performance  against  the  buyer  of  land,  said  that  the  agree- 
ment being  signed  by  the  defendant  only  made  him  within  the 
statute  a  party  to  be  charged.  The  case  of  Fowle  v.  Freeman, 
9  Vesey,  351,  was  an  express  decision  of  the  Master  of  the  Rolls  on 
the  very  point  that  an  agreement  to  sell  lands  signed  by  the  vendor 
only  was  binding. 

There  is  nothing  to  disturb  this  strong  and  united  current  of 
authority  but  the  observations  of  Lord  C.  Redesdale  in  Lawrenson 
V.  Butler,  1  Sch.  &  Lef  13,  who  thought  that  the  contract  ought  to 
be  mutual  to  be  binding,  and  that  if  one  party  could  not  enforce  it 
the  other  ought  not.  To  decree  perfoiinance  when  one  party  only 
was  bound  would  "  make  the  statute  really  a  statute  of  frauds,  for  it 
would  enable  any  person,  who  had  procured  another  to  sign  an  ngree- 
ment,  to  make  it  depend  on  his  own  will  and  pleasure  whether  it 
should  be  an  agreement  or  not."  The  intrinsic  force  of  this  argument, 
the  boldness  with  Avhich  it  was  applied,  and  the  commanding  weight 
of  the  very  respectable  character  who  used  it,  caused  the  courts  for  a 
time  to  pause.  Lord  Eldon  in  11  Vesey,  592,  out  of  respect  to  this 
opinion  waived  in  that  case  the  discussion  of  the  point ;  but  the 
courts  have  on  further  consideration  resumed  their  former  tract.  In 
Western  v.  Russell,  3  Vesey  &  Beames,  192,  the  Master  of  the  Rolls 
declared  he  was  hardly  at  liberty,  notwithstanding  the  considerable 
doubt  thrown  upon  the  point  by  Lord  Redesdale,  to  refuse  a  specific 
performance  of  a  contract  to  sell  land,  upon  the  ground  that  there  was 
no  agreement  signed  by  the  party  seeking  a  performance  ;  and  in 
Ormond  v.  Anderson,  2  Ball  &  Beatty,  370,  the  present  Lord  Chan- 
cellor of  Ireland  (and  whose  authority  if  we  may  judge  from  the 
ability  of  his  decisions   is  not  far  short  of  that  of  his  predecessor) 


SECT.   VI.]  CLASON   V.    UAILEY.'  545 

has  not  felt  himself  autliorized  to  follow  the  opinion  of  Lord 
Redesdale.  "  I  am  well  aware,"  he  observes,  "  that  a  doubt  has  been 
entertained  by  a  judge  of  this  court,  of  very  high  authority,  whether 
courts  of  equity  Avould  specifically  execute  an  agreement  where  one 
party  only  was  bound;  but  there  exists  no  provision  in  the  Statute  of 
Frauds  to  prevent  the  execution  of  such  an  agreement."  ITe  then  cites 
with  appiobation  what  was  said  by  Sir  J.  Mansfield  in  Allen  v.  Bennet. 

I  have  thought,  and  have  often  intimated,  that  the  weight  of  argu- 
ment Avas  in  fxvour  of  the  construction  that  the  agreement  con- 
cerning lands  to  be  enforced  in  equity  should  be  mutually  binding, 
and  that  the  one  party  ought  not  to  be  at  liberty  to  enforce  at  his 
pleasure  an  agreement  which  the  other  was  not  entitled  to  claim. 
It  appears  to  be  settled  (Hawkins  v.  Holmes,  1  P.  Wms.  770)  that, 
though  the  plaintiff  has  signed  the  agreement,  he  never  can  enforce  it 
against  the  party  who  has  not  signed  it.  The  remedy  therefore  in 
such  case  is  not  mutual.  But  notwithstanding  this  objection  it 
appears  from  the  review  of  the  cases  that  the  point  is  too  well  settled 
to  be  now  questioned. 

There  is  a  slight  variation  in  the  statute  respecting  agreements  con- 
cerning the  sale  of  lands,  and  agreements  concerning  the  sale  of  chattels, 
inasmuch  as  the  one  section  (being  the  4th  section  of  the  English  and  the 
11th  section  of  our  statute)  speaks  of  the  party,  and  the  other  section 
(being  the  17th  of  the  English  and  the  15th  of  ours)  speaks  of  the  ])ar- 
ties  to  be  charged.  But  I  do  not  find  from  the  cases  that  this  variation 
has  produced  any  difference  in  the  decisions.  The  construction  as  to  the 
point  under  consideration  has  been  uniformly  the  same  in  both  cases. 

Clason,  who  signed  the  agreement  and  is  the  party  sought  to  be 
charged, is  then,  according  to  the  authorities,  bound  by  the  agreement; 
and  he  cannot  set  up  the  statute  in  bar.  But  I  do  not  deem  it  abso- 
lutely necessary  to  place  the  cause  on  this  groimd ;  though,  as  the  ques- 
tion Avas  raised  and  discussed,  I  thought  it  would  be  useful  to  advert 
to  the  most  material  cases,  and  to  trace  the  doctrine  through  the  course 
of  authority.  In  my  opinion  the  objection  itself  is  not  well  founded 
in  point  of  fact. 

The  names  of  Bailey  &  Voorhees  are  as  miich  in  the  memorandum 
as  that  of  Clason.  The  words  are :  "  Bouofht  for  Isaac  Clason,  of 
Bailey  &  Voorhees,  3000  bushels,"  &c. ;  and  how  came  their  names  to 
be  inserted  ?  Most  imdoubtedly  they  were  inserted  by  their  direction 
and  consent,  and  so  it  appears  by  the  special  verdict.  The  jury  find 
that,  when  the  bargain  was  closed,  Townsend  the  agent  of  Clason 
did  at  the  time  and  in  their  presence  write  the  memorandum ;  and  if 
so,  were  not  their  names  inserted  by  their  consent?  Was  not  Town- 
send  their  agent  for  that  purpose?  If  they  had  not  assented  to  the 
memorandum,  they  should  have  spoken.  But  they  did  assent,  for  the 
memorandum  was  made  to  reduce  the  bargain  to  writing  in  their  pres- 
voL.  I.  35 


546  '  CLASON   V.    BAILEY.  [CHAP.    I. 

ence  at  the  time  it  was  closed.  It  was  therefore  as  much  their  memo- 
randum as  if  they  had  written  it  themselves.  Townsend  was  so  far 
the  acknowledged  agent  of  both  parties.  The  auctioneer  who  takes 
down  the  name  of  the  buyer  when  he  bids  is,  quoad  hoc^  his  agent. 
Emmerson  i).  Heelis,  2  Taunt.  38.  The  contract  was  then  in  judg- 
ment of  law  reduced  to  writing,  and  signed  by  both  parties ;  and  it 
appears  to  me  to  be  as  unjust  as  it  is  illegal  for  Clason  or  his  repre- 
sentatives to  get  rid  of  so  fair  a  bargain  on  so  groundless  a  pre- 
text. 

2.  The  remaining  objection  is  that  the  memorandum  was  made  with 
a  lead-pencil. 

The  statute  requires  a  writing.  It  does  not  undertake  to  define  with 
what  instrument  or  with  what  material  the  contract  shall  be  written. 
It  only  requires  it  to  be  in  writing  and  signed,  &c.  The  verdict  here 
finds  that  the  memorandum  was  written ;  but  it  proceeds  further,  and 
tells  us  with  what  instrument  it  was  written,  viz.,  with  a  lead-pencil. 
But  what  have  we  to  do  with  the  kind  of  instrument  which  the  parties 
employed,  when  we  find  all  that  the  statute  required,  viz.,,  a  memo- 
randum of  the  contract  in  writing,  together  with  the  names  of  the 
parties  ? 

To  write  is  to  express  one's  ideas  by  letters  visible  to  the  eye.  The 
mode  or  manner  of  impressing  those  letters  is  no  part  of  the  substance 
or  definition  of  writing.  A  pencil  is  an  instrument  with  which  we 
write  without  ink.  The  ancients  understood  alphabetic  writing  as  well 
as  we  do ;  but  it  is  certain  that  the  use  of  paper,  pen,  and  ink  was  for 
a  long  time  unknown  to  them.  In  the  days  of  Job  they  wrote  upon 
lead  with  an  iron  pen.  The  ancients  used  to  write  upon  hard  sub- 
stances, as  stones,  metals,  ivory,  wood,  c%c.,  with  a  style,  or  iron  instru- 
ment. The  next  improviement  was  writing  upon  waxed  tables ;  until 
at  last  paper  and  parchment  were  adopted,  when  the  use  of  the  calamus 
or  reed  was  introduced.  The  common  law  has  gone  so  fir  to  regulate 
writings  as  to  make  it  necessary  that  a  deed  should  be  written  on 
paper  or  parchment,  and  not  on  wood  or  stone.  This  was  for  the  sake 
of  durability  and  safety ;  and  this  is  all  the  regulation  that  the  law  has 
prescribed.  The  instrument  or  the  material  by  which  letters  were  to 
be  impressed  on  paper  or  parchment  has  never  yet  been  defined.  This 
has  been  left  to  be  governed  by  public  <5onvenience  and  usage ;  and 
as  far  as  questions  have  arisen  on  this  subject,  the  courts  have,  with 
great  latitude  and  liberality,  left  the  parties  to  their  own  discretion. 
It  has  accordingly  been  admitted  (2  Black.  Com.  297  ;  2  Bos.  &  Pull. 
238-;  3  Esp.  Rep.  180)  that  printing  was  writing  within  the  statute, 
and  (2Bro.  585)  that  stamping  was  equivalent  to  signing,  and  (8Vesey, 
175)  that  making  a  mark  was  subscribing  within  the  act.  I  do  not 
find  any  case  in  the  courts  of  common  law  in  which  the  very  jDoint  now 
before  us  has  been  decided,  viz.,  whether  writing  with  a  lead-pencil 


SECT.    VI.]  CLASON   V.    BAILEY.  547 

was  sufficient ;  but  there  are  several  cases  in  which  such  writings  were 
produced,  and  no  objection  taken.  The  courts  have  impliedly  admitted 
that  writing  with  such  an  instrument,  without  the  use  of  any  licjuid, 
was  valid.  Thus  in  a  case  in  Comyns'  Reports  (p.  451)  the  counsel 
cited  the  case  of  Loveday  u.  Claridge,  in  1730,  where  Loveday,  intend- 
ing to  make  his  will,  pulled  a  paper  out  of  his  pocket,  wrote  some 
things  down  with  ink,  and  some  with  a  pencil,  and  it  was  held  a  good 
will.  But  we  have  a  more  full  and  authentic  authority  in  a  late  case 
decided  at  Doctors  Commons  (Rymes  v.  Clarkson,  1  Pliillim.  Rep.  22), 
where  the  very  question  arose  on  the  validity  of  a  codicil  written  with 
a  pencil.  It  was  a  point  over  which  the  Prerogative  Court  had  com- 
plete jurisdiction,  and  one  objection  taken  to  the  codicil  was  the  mate- 
rial with  which  it  was  written ;  but  it  was  contended,  on  the  other  side, 
that  a  man  might  write  his  will  with  any  material  he  pleased,  quocun- 
que  moclo  velit,  quocunque  inodo  possit ;  and  it  was  ruled  by  Sir  John 
Nicholl  that  a  will  or  codicil  written  in  pencil  was  valid  in  law. 

The  Statute  of  Frauds,  in  respect  to  such  contracts  as  the  one 
before  us,  did  not  require  any  formal  and  solemn  instrument.  It  only 
required  a  note  or  memorandum,  which  imports  an  informal  writing 
done  on  the  spot,  in  the  moment  and  hurry  and  tumult  of  commercial 
business.  A  lead-pencil  is  generally  the  most  accessible  and  conven- 
ient instrument  of  writing  on  such  occasions ;  and  I  see  no  good 
reason  why  we  should  wish  to  put  an  interdict  on  all  memoranda 
written  Avith  a  pencil.  I  am.  persuaded  it  would  be  attended  with 
much  inconvenience,  and  afford  more  opportunities  and  temptations  to 
parties  to  break  faith  with  each  other,  than  by  allowing  the  writing 
with  a  pencil  to  stand.  It  is  no  doubt  very  much  in  use.  The  courts 
have  frequently  seen  such  papers  before  them,  and  have  always 
assumed  them  to  be  valid.  This  is  a  sanction  not  to  be  disre- 
garded. 

I  am  accordingly  of  opinion  that  the  judgment  of  the  Supreme  Court 
ought  to  be  affirmed. 

This  was  the  opinion  of  the  court.  (Elmexdorf  and  Livingston. 
senators,  dissenting.) 

It  was  thereupon  ordered,  adjudged,  and  decreed  that  the  judgment 
of  the  Supreme  Court  be  in  all  things  affirmed;  and  that  the  defendants 
recover  from  the  plaintiffs,  their  double  costs  to  be  taxed,  and  that  the 
record  be  remitted,  &c.  Judgment  affirmed. 


548  PELTIER   V.    COLLINS.  [CHAP.    I. 

PELTIER  V.  J.  &  E.   COLLINS. 
Supreme  Court  of  New  York,  January  Term,  1830. 

[Reported  in  3  Wendell,  459.] 

Error  from  the  New  York  Common  Pleas.  J.  &  E.  Collins  sued 
Peltier  in  the  Common  Pleas  in  an  action  of  assumpsit  to  recover  dam- 
ages for  the  breach  of  a  contract  in  not  receiving  and  paying  for  a 
quantity  of  rice  alleged  to  have  been  sold  by  the  plaintiffs  to  the 
defendant.  The  plaintiffs  recovered  a  verdict  and  entered  judgment, 
which  was  brought  into  this  court  by  writ  of  error  on  a  bill  of  excep- 
tions taken  at  the  trial. 

One  J.  J.  Werth,  a  produce  broker  in  the  city  of  New  York,  on  the 
11th  April,  1826,  shewed  to  the  defendant  several  samples  of  rice  which 
he  had  obtained  of  the  plaintiffs,  and  for  which  they  asked  three  and  a 
quarter  cents  by  the  pound.  He  shewed  him  a  sample  of  two  parcels, 
one  marked  H.  G.,  containing  76  tierces,  and  the  other  G.,  containing 
73  tierces,  which  the  defendant  said  he  would  take.  The  defendant 
asked  the  broker  if  he  thought  he  could  get  the  rice  for  three  and  one- 
eighth  cents  per  pound,  who  answered  that  he  thought  that  the  plain- 
tiffs would  not  take  less  than  three  and  one-quarter  cents  per  pound, 
and  added  that  the  mark  H.  G.  was  all  of  one  crop  and  from  one  plan- 
tation, and  would  be  warranted  as  to  quality  by  the  plaintiffs.  The 
defendant  said  he  would  examine  it  in  the  cask  and  satisfy  himself 
as  to  the  quality  if  he  made  the  purchase ;  that  he  must  have  his  own 
terms  if  he  bought  it ;  that  if  the  plaintiffs  would  give  him  the  choice 
to  take  four  months'  credit  or  three  j^er  cent,  discount  for  cash,  that 
witness  might  make  the  purchase.  The  defendant  however  reserved  to 
himself  the  right  to  examine  the  rice  in  the  casks,  and  to  approve  or 
disapprove  of  the  bargain  as  he  should  think  fit  on  such  examination. 
The  broker  went  to  the  plaintiffs  and  stated  that  he  had  found  a  pur- 
chaser for  the  two  parcels  H.  G.  and  G.,  provided  they  would  sell  on  a 
credit  of  four  months  or  three  per  cent,  discount  for  cash,  at  the  option 
of  the  purchaser. 

The  plaintiffs,  on  being  informed  who  was  the  purchaser,  said  he 
should  have  the  rice.  The  broker  observed  that  he  had  stated  to  the 
defendant  that  the  plaintiffs  would  warrant  the  parcel  of  76  hogsheads, 
upon  which  they  replied  that  they  would  warrant  the  whole.  One  of 
the  plaintiffs  wrote  a  memorandum  of  the  agreement  in  a  book  of  the 
plaintiffs,  which  the  broker  signed.  The  broker  went  to  his  own  office, 
and  wrote  and  signed  a  memorandum  of  the  bargain  for  the  purchase 
of  the  rice  in  his  own  memorandum  book,  of  which  he  gave  a  copy  the 
next  morning  to  the  defendant  at  the  defendant's  office.     The  book  in 


SECT.    VI.]  PELTIER   V.    COLLINS.  549 

which  the  plaintiffs  wrote  tlie  memorandum  was  entitled  "Memoran- 
dum Book  of  J.  G.  Collins  &  Son."  The  memorandum  was  written  on 
the  40th  or  50th  page  from  the  beginning  of  the  book  (the  intermediate 
pages  being  written  up  Avith  entries  of  sales  and  purchases  in  a  similar 
form  to  the  entry  in  this  case  made  from  time  to  time,  and  subsequent 
entries  were  made  in  like  manner),  in  the  following  words:  "New 
York,  April  11,  ISl^G.  Sold  F.  Peltier,  at  four  months  or  three  ])er  cent, 
for  cash,  H.  G.  76  tierces  rice,  and  G.  73  tierces  rice,  $3^  per  100  lb., 
pr.  J.  J.  Werth.  For  acct.  J.  H.  Glover  &  Rice,  No.  71  Schr.  Garguer. 
In  acct.  J.  F.  &  Co.  I  certify  the  above  to  be  correct.  (Signed) 
Jno.  J.  Werth."  The  entry  in  the  broker's  book  was  in  the  following 
words:  "New  York,  April  11,  1826.     Purchased  from  J.  G.  Collins  & 

Son,  by  order  and  for  account  of  F.  Peltier,  Esq.,  II.  G.  76,  G.  73 

149  tierces  rice,  as  per  samples,  at  3^  cents,  4  mos.  credit  or  3  pr. 
ct.  disct.  for  cash,  at  the  option  of  the  buyer,  with  guaranty  of  the 
quaUty.  (Signed)  Jno.  J.  Werth,  Broker."  When  the  broker  handed 
the  copy  of  the  memorandum  to  the  defendant,  he  objected  to  it  because 
the  broker  had  not  inserted  in  it  that  the  defendant  was  to  have  the 
privilege  of  looking  at  the  rice  in  the  cask  before  making  the  purchase. 
The  broker  told  him  the  quality  of  the  rice  was  warranted  by  the 
plaintiffs,  and  therefore  there  could  be  no  difficulty  about  it.  The 
defendant  made  no  reply,  neither  saying  that  he  Avas  satisfied  or  dis- 
satisfied. Within  a  day  or  two  after  the  purchase  thus  made  the 
defendant  went  with  the  broker  to  examine  the  rice ;  he  approved  of 
the  parcel  marked  H.  G.,  and  told  the  plaintiffs  he  would  take  it,  but 
disapproved  of  the  other  parcel,  and  said  he  would  not  take  it.  On 
the  25th  April  one  of  the  plaintiffs  informed  the  defendant  that  he 
was  ready  to  comply  with  the  contract  on  his  part ;  and  that  if  the 
defendant  did  not  take  away  the  rice  on  that  day,  they  the  plaintiffs 
would  sell  it  on  the  succeeding  Saturday  on  the  defendant's  account. 
The  defendant  said  he  did  not  consider  the  rice  as  his,  and  that  he 
would  not  take  it.  On  the  2d  May  it  was  sold  at  auction  at  a  loss  of 
$215.78,  for  the  recovery  of  which  the  action  was  brought. 

The  declaration  contained  several  counts.  The  first  count  set  forth 
that  on,  &c.,  at,  &c.,  the  defendant  bargained  for  and  bought  of  the 
plaintiffs,  and  the  plaintiffs  at  the  special  instance  and  request  of  the 
defendant  then  and  there  sold  to  the  defendant  a  large  quantity  of 
rice,  to  Avit,  149  tierces  of  rice,  amounting  to  88,153  pounds,  net  weight, 
at  the  rate  of  $3.25  per  100  pounds,  to  be  delivered  by  the  ])laintifFs 
to  the  defendant,  and  to  be  paid  for  in  four  months  thereafter,  or  to  be 
paid  for  in  cash  with  three  per  cent,  discount  or  deduction  from  the 
said  price,  at  the  option  of  the  defendant;  and  in  consideration  thereof, 
and  that  the  plaintiffs  at  the  like  special  instance  and  request  of  the 
defendant  had  then  and  there  undertaken  and  faithfully  ]ironiised  the 
defendant  to  deliver  the  rice  to  him  the  defendant,  he  the  defendant 


550  ^  PELTIER   V.    COLLINS.  [CHAP.    I. 

undertook  and  then  and  there  faithfully  promised  the  plaintiffs  to 
accept  the  rice  of  and  from  them  the  plaintiffs,  and  to  pay  them  for 
the  same  in  four  months  thereafter,  or  to  pay  them  in  cash  after  mak- 
ing the  discount  or  deduction  aforesaid.  Then  follows  an  averment  ol 
a  readiness  on  the  part  of  the  plaintiffs  to  deliver,  &c.,  and  a  breach  on 
the  part  of  the  defendant,  &c.  The  second  count  was  similar  to  the 
first,  setting  forth  the  special  contract.  The  third  count  was  for  goods 
bargained  and  sold,  without  delivery.  Then  followed  the  common 
counts  for  goods  sold  and  delivered,  quantum  meruit,  and  the  money 
counts.     The  defendant  pleaded  the  general  issue. 

On  the  trial  of  the  cause  the  reading  in  evidence  of  the  memoran- 
dum entered  in  the  plaintiffs'  book  and  signed  by  the  broker  was 
objected  to  by  the  defendant,  but  allowed  by  the  judge.  After  the  evi- 
dence for  the  plaintiffs  was  closed,  the  defendant  moved  that  the  plain- 
tiffs be  nonsuited,  because  (1)  the  memorandum  in  the  plaintiffs'  book, 
not  containing  the  whole  agreement  as  made  by  the  brokei-,  particularly 
the  names  of  the  plaintiffs  as  sellers  of  the  rice  and  the  warranty  as 
to  the  quality  thereof,  was  not  binding  upon  the  defendant ;  (2)  that 
the  memorandum  made  in  the  broker's  book  was  the  only  memorandum 
upon  which  the  defendant  could  be  charged,  if  any,  and  that  was  not 
declared  upon.  The  motion  for  a  nonsuit  was  denied  by  the  judge, 
who  charged  the  jury  that  the  memorandum  in  the  plaintiffs'  book  was 
in  law  a  sufficient  note  or  memorandum  in  writing  of  the  contract  or 
agreement,  and  the  signing  by  the  broker  was  sufficient  to  charge  the 
defendant ;  that  the  memorandum  was  not  void  or  invalid  by  reason 
that  the  names  of  the  plaintiffs  were  not  inserted  therein,  the  same 
being  entered  in  the  sale-book  of  the  plaintiffs,  in  which  the  sales  and 
purchases  made  by  them  from  time  to  time  were  entered ;  nor  was  the 
same  void  or  invalid  because  it  did  not  contain  the  whole  agreement  in 
setting  forth  the  warranty,  it  being  competent  to  the  defendant  to  shew 
and  prove  such  warranty  as  part  of  the  agreement,  although  not  con- 
tained in  such  memorandum ;  and  that  the  memorandum  was  binding 
upon  the  defendant,  and  the  plaintiffs  were  entitled  to  recover  unless 
the  jury  should  be  of  opinion  that  the  broker  in  making  the  agreement 
had  exceeded  the  authority  given  him  by  the  defendant ;  and  that  even 
in  such  case,  if  they  should  be  of  opinion  that  the  defendant  had  sub- 
sequently ratified  the  agreement,  the  plaintiffs  were  entitled  to  recover. 
The  jury  found  for  the  plaintiffs  with  $233.84  damages  and  six  cents 
costs.  The  defendant  excepted  to  the  charge  and  to  the  various  deci- 
sions made  by  the  judge. 

W.  /SIosso)i,  for  plaintiff  in  error.  The  action,  if  sustainable,  must  be 
supported  under  the  special  counts  which  are  founded  wholly  on  the 
memorandum  in  the  plaintiffs'  book,  which  is  void  within  the  Statute 
of  Frauds.  A  memorandum  must  state  the  contract  with  reasonable 
certainty,  so  that  the  substance  of  it  can  be  made  to  appear  and  be 


SECT.    VI.]  PELTIER   V.    COLLINS.  551 

understood  from  the  writing  itself  without  having  recourse  to  parol 
proof.  3  Johns.  399.  This  memorandum  did  not  contain  the  names 
of  the  sellers,  which  is  indispensably  necessary.  4  Bos.  &  Pul.  252- 
It  omitted  the  warranty,  an  essential  and  vital  part  of  the  agreement. 
It  was  entirely  different  from  the  copy  given  the  defendant :  this  is  a 
fatal  objection.  5  Taunton,  786;  1  Holt's  R.  172.  It  did  not  contain 
the  whole  agreement.  3  Johns.  R.  210  ;  5  East,  10.  The  entry  in  the 
broker's  book  was  the  only  proper  entry  of  the  bargain.  Starkie  on 
Ev.  pt.  4,  p.  614.  If  the  evidence  of  the  warranty  was  admissible,  the 
plaintiffs  should  have  been  nonsuited  for  the  variance  between  the 
contract  as  proved  and  declared  on.  1  Chitty's  PI.  299,  3U0,  340 ;  2 
East,  145 ;  7  Cowen,  85  ;  18  Johns.  R.  451 ;  8  Cowen,  35 ;  4  id  406. 

G.  Clark,  for  defendants  in  error.  The  authority  of  the  broker  to 
bind  the  defendant  was  submitted  to  and  passed  upon  by  the  jury,  and 
found  against  him ;  and  their  finding  is  conclusive  upon  that  question. 
3  Burr.  1921 ;  14  Johns.  R.  484 ;  4  Johns.  Ch.  R.  699. 

The  memorandum  in  this  case  has  all  the  essentials  required  by 
statute  to  render  it  valid  and  binding,  even  within  the  decision  in  3 
Johns.  R.  399.  It  is  the  15th  section  of  the  Statute  of  Fraiuls  which 
applies  to  this  case,  and  it  differs  from  the  11th  section.  The  latter 
requires  the  agreement  to  be  in  writing ;  the  former  is  comi)lied  Anth 
if  there  be  a  note  or  memorandum  in  writing  of  the  bargain.  The 
consideration  need  not  be  stated  nor  any  thing  beyond  the  fact  of  a 
sale ;  the  particulars  of  the  agreement  may  be  proved  by  parol.  6  East, 
307;  4  Wheaton,  91,  note ;  3  Starkie's  Ev.  1048,  note  q.  All  that  is 
required  is  a  note  or  memorandum  importing  an  informal  Aviiting  done 
on  the  spot  at  the  moment,  in  the  hurry  of  commercial  business.  14 
Johns.  R.  492 ;  13  Mass.  R.  142. 

The  memorandum  being  entered  in  the  book  of  sales  and  purchases 
of  the  plaintiffs,  kept  expressly  for  such  purposes,  was  equivalent  to  an 
actual  signing;  and  in  this  respect  this  case  differs  most  essentially 
from  the  case  in  4  Bos.  &  Pul.,  where  the  memorandum  was  made  in  a 
common  memorandum  book  and  was  signed  by  the  vendor  only.  The 
note  in  this  respect  was  sufficient.  2  Bos.  &  Pul.  238 ;  2  Caines,  117. 
There  was  no  necessity  that  the  warranty  should  appear  on  the  face  of 
the  memorandum,  or  in  other  words  the  mutuality  of  the  contract  need 
not  appear.  4  Wheaton,  91,  note.  There  was  no  essential  difference 
between  the  memorandum  in  the  plaintiffs'  book  and  the  copy  deliv- 
ered the  defendant:  the  only  difference  is  as  to  the  clause  of  warranty, 
which  need  not  be  stated.  But  even  in  this  respect  the  memorandum 
in  the  plaintiffs'  book  shews  it  was  a  sale  by  sample,  which  always 
amounts  to  a  warranty.  Suppose  the  vendee  signs  a  note  acknowl- 
edging the  purchase  and  promising  payment,  and  the  vendor  another 
acknowledging  the  sale  and  warranting  the  article,  can  it  be  objtxaed 
that  there  is  a  variance  in  the  two  notes'?     The  memorandum  made  at 


562  PELTIER   V.    COLLINS.  [CHAP.    I. 

the  time  of  the  sale,  and  not  an  entry  made  afterwards,  as  here  in  the 
broker's  book,  should  be  regarded  as  the  note  of  sale.  There  was  no 
variance  between  the  contract  as  proved  and  as  declared  on :  the  war- 
ranty was  a  distinct  and  collateral  matter  which  need  not  be  stated. 
1  Chitty,  301 ;  1  Saund.  234,  note  2  ;  1  T.  R.  645,  616.  If  there  was  a 
variance  the  plaintiffs  might  recover  on  the  third  count.  1  Chitty, 
304;  1  East,  194;  2  Chitty,  17;  4  Esp.  251 ;  7  T.  R.  67.  The  plaintiffs 
might  also  recover  on  the  general  counts,  the  contract  having  been  in 
fact  executed  by  the  sale  of  the  goods  after  notice,  in  which  they  acted 
barely  as  the  agents  of  the  vendee.     4  Esp.  251 ;  5  Johns.  R.  395. 

Slosson.,  in  reply.  Where  the  agreement  is  reduced  to  writing 
parol  evidence  of  further  terms  is  inadmissible  (Long  on  Sales,  117, 
§  9 ;  4  Campb.  R.  22)  ;  the  evidence  of  the  warranty  therefore  ought  not 
to  have  been  received.  As  to  the  construction  put  upon  the  15th  sec- 
tion of  the  act,  it  is  admitted  the  memorandum  may  be  informal,  but ' 
it  must  contain  the  substance  or  the  terms  of  the  contract,  and  such 
was  the  decision  upon  this  very  section.  3  Johns.  R.  399.  See  also 
14  id.  487.  Parol  evidence  is  inadmissible  to  add  to  the  note  or  memo- 
randum in  wi'iting.  4  Wheatou,  92,  3,  in  note.  If  there  was  a  war- 
ranty, the  declaration  should  have  stated  that,  in  considei-ation  that  the 
plaintiffs  would  sell  and  wan-ant  the  property,  the  defendant  agreed, 
&c. ;  the  wai-ranty  is  a  part  of  the  consideration,  and  being  omitted  the 
variance  is  fatal. 

By  the  Coitbt,  Marcy,  J.  It  is  quite  evident  that  the  plaintiffs  below 
could  not  recover  on  a  contract  without  wan-anty,  because  the  defend- 
ant never  authorized  the  agent  to  make  a  contract  of  that  description. 
The  writing  did  not  shew  such  a  purchase  as  the  agent  was  authorized 
to  make  or  as  he  did  in  fiict  make.  Did  the  judge  err  in  allowing  the 
wan-anty  to  be  ptoved  by  parol  ? 

This  contract  is  within  the  15th  section  of  the  Statute  of  Frauds, 
and  to  be  binding  must  be  in  writing.  Roberts  says  that  the  written 
agi-eement  or  memorandum  must  set  forth  distinctly  the  tenns  of  the 
contract  or  promise,  either  by  its  own  contents  and  expression  or  by 
direct  reference  to  something  extrinsic  which  may  render  it  intelligible 
and  certain.  Rob,  on  Frauds,  116.  In  the  case  of  Brodie  v.  St.  Paul, 
1  Vesey,  jun.,  Mr.  Justice  Buller,  sitting  for  the  Lord  Chancellor,  said : 
"  If  the  agreement  is  certain  and  explained  in  writing  signed  by  the 
parties,  that  binds  them ;  if  not,  and  evidence  is  necessary  to  prove  what 
the  terms  were,  to  admit  it  would  effectually  break  in  upon  the  statute, 
and  introduce  all  the  mischief;  inconvenience,  and  imcertainty  the  stat- 
ute was  designed  to  prevent."  These  views  accord  with  those  of 
Kent,  C.  J.,  in  the  case  of  Bailey  &  Bogert  v.  Ogden,  3  Johns.  R.  419, 
where  he  says:  "The  form  of  the  memorandum  cannot  be  material,  but 
it  must  state  the  contiact  with  reasonable  certainty,  so  that  the  substance 
of  it  can  be  made  to  appear  and  be  understood  from  the  writing  itself 


SECT.    VI.]  PELTIER   V.    COLLINS.  553 

without  having  recourse  to  parol  jiroof."  Lord  Ellenborougli  says  in 
the  case  of  Boydell  u.  Drummond,  11  East,  156:  "The  statute  excludes 
parol  evidence."  Lord  Redesdale  would  not  hear  parol  evidence  to 
shew  what  was  intended  to  be  the  term  in  a  lease,  by  connecting  the 
lease  with  an  advertisement  of  the  premises.  1  Schoales  &  Lefroy,  22. 
I  find  no  case  in  which  these  authorities  are  questioned,  and  in  my 
opinion  to  question  the  principle  upon  Nvhich  they  are  based  would  be 
in  effect  to  annul  the  statute.  If  j^arol  evidence  were  permitted  to 
shew  terms  and  conditions  in  a  contract  other  than  such  as  are  speci- 
fiied  in  the  memorandum,  all  the  mischiefs  would  result  fi-om  such  a  rule 
that  would  be  the  consequence  of  a  total  abolition  of  the  statute.  The 
object  of  the  memorandum  is  not  merely  to  prove  that  there  was  a 
bargain,  but  to  shew  what  the  bargain  was,  at  least  the  extent  and 
entirety  of  the  consideration  for  the  promise  on  Avliich  the  suit  is 
brought. 

Was  that  part  which  was  omitted  in  this  case,  the  warranty  clause, 
one  of  the  substantial  terms  of  this  contract  ?  I  cannot  view  it  other- 
wise. In  the  case  of  Powell  v.  Edmunds,  12  East,  6,  it  is  said  that  a 
warranty  as  to  the  quantity  of  timber  would  vary  the  agreement  con- 
tained in  the  written  conditions  of  a  sale.  The  warranty  is  almost  as 
important  a  part  of  the  contract  as  the  price  or  the  designation  of  the 
article  sold,  and  equally  so  with  what  relates  to  the  delivery  or  the 
credit.  If  we  would  avoid  confusion,  it  should  be  recollected  that  we 
are  not  endeavoring  to  ascertain  what  is  necessary  to  be  stated  in 
declaring  upon  a  contract  properly  made,  but  whether  a  warranty  is  a 
substantial  part  of  it.  It  often  happens  that  a  part  only  of  a  contract 
need  to  be  set  forth  in  the  pleadings  in  a  suit.  1  Chitty's  PI.  300. 
Suppose  the  contract  had  been  with  wan-ranty,  and  the  memorandum 
in  the  plaintiffs'  sales-book  had  been  signed  by  the  defendant,  but  the 
warranty  clause  omitted,  and  suppose  the  rice  had  been  delivered  and 
had  pi-oved  to  be  of  an  inferior  quality :  could  the  defendant  have  shewn 
the  warranty  by  parol?  The  authorities  to  which  I  have  refeiTcd  shew 
most  abundantly  that  he  could  not.  Is  the  rule  of  proof  different 
where  the  memorandum  is  subscribed  by  the  agent?  Most  certainly 
not.  To  shew  that  the  defendant  was  bound  by  the  contract  made  by 
his  agent,  the  judge  admitted  parol  evidence  that  there  was  a  Avarranty, 
and  the  jury  found  that  the  agent  had  authority  to  make  a  contract 
with  warranty;  yet  if  the  defendant  had  recognized  the  contract,  it 
would  have  been  to  him  a  contract  within  the  statute,  and  therefore 
void ;  or  a  contract  without  warranty,  because  he  would  have  been 
confined  to  the  written  memorandum  to  shew  its  terms.  In  testing  the 
authority  of  the  agent  no  contract  but  such  as  was  available  to  the 
defendant  should  have  been  considered,  and  the  judge  should  not  have 
admitted  evidence  that  the  defendant  could  not  have  introduced  in  a 
suit  on  that  contract. 


554  HAWKINS   V.    CHACE.  [CHAP.   I. 

If  the  contract  proved  by  parol  is  that  rehed  on  by  the  plaintiffs 
below,  they  cannot  recover,  because  it  is  within  the  15th  section  of  the 
Statute  of  Frauds  ;  a  material  part  of  it,  the  warranty,  being  omitted 
in  the  memorandum.  If  they  are  proceeding,  as  they  appear  to  be, 
on  the  memorandum  made  in  the  sale-book,  they  cannot  recover, 
because  they  are  endeavoring  to  enforce  a  contract,  or  rather  seek  to 
recover  damages  for  the  breach  of  a  contract,  made  without  the 
authority  of  the  defendant  below. 

It  is  admitted  on  both  sides  that  the  memorandum  in  the  plaintiffs' 
sale-book  is  the  writing  that  is  to  take  the  sale  out  of  the  statute. 
That  contains  no  warranty :  the  copy  of  the  memorandum  handed  by 
the  broker  to  the  defendant  did  contain  one.  If  a  bi'oker  deliver  a 
bought  and  sold  note  which  materially  differ,  there  is  no  valid  contract. 
1  Holt,  R.  172.  Such  was  the  case  here,  unless  what  the  plaintiffs 
contend  is  true,  that  the  note  entered  in  their  sale-book  contains  in 
effect  a  warranty,  shewing,  as  they  aver,  that  the  sale  was  by  sample, 
which  implies  a  warranty  that  the  article  sold  shall  correspond  with 
the  sample.  Though  the  allegation  of  this  fact  is  repeatedly  made  in 
the  argument  submitted  to  us,  yet  I  do  not  find  it  to  be  so  in  point  of 
fact.  The  memorandum  contained  in  the  case  discloses  nothing  to 
shew  that  the  sale  was  by  sample.  If  it  is  meant  that  the  memoranda 
are  alike  because  it  is  shewn  by  parol  exddence  that  the  sale  was  made 
in  that  manner,  the  plaintiffs  are  met  by  the  objection  that  the  fact 
is  not  proved  by  the  writing,  and  it  is  not  permissible  to  shew  it 
otherwise. 

It  is  urged  that  the  plaintiffs  might  recover  on  the  general  count  for 
goods  bargained  for  and  sold.  The  objection  to  this  position  is  two- 
fold ;  fii-st,  the  contract  is  executory,  and  the  plaintiffs  are  proceeding 
for  the  damages  they  have  sustained  for  the  non-fulfilment  of  it ;  and, 
secondly,  they  fail  to  prove  in  a  proper  manner  a  contract  by  which 
the  defendant  is  bound.  I  think  the  judgment  below  ought  to  be 
reversed.  •  Judgment  reversed. 


WILLIAM  H.  HAWKINS  et  Al.   v.  WILLIAM  H.  CHACE. 

Supreme  Judicial  Court  of  Massachusetts,  October  Term,  1837. 

[Reported  in  19  Pickering,  502.] 

Case  to  recover  damages  for  the  non-pei*formance  of  a  contract. 
The  action  was  tried  in  the  Court  of  Common  Pleas  before  Strong,  J. 

The  plaintiffs  produced  in  evidence  a  writing  in  the  following 
words :  — 


SECT.    VI.]  HAWKINS   V.    CHACE.  555 

W.  H.  Hawkins  &  Co. 

Bought  of  William  H.  Chace 

Twenty  bbls.  flour  at  5^ $110. 

Reed.  payt. 
February  24,  1835. 

This  bill  of  parcels  was  not  written  nor  signed  by  the  defendant. 

The  plaintiffs  then  called  one  Willard  as  a  witness,  who  testified 
that  he  wrote  the  memorandum  in  question  at  the"  request  of  the 
defendant ;  but  whether  he  was  requested  to  write  the  words  contained 
in  this  memorandum,  or  in  this  particular  form,  he  was  unable  to  say. 

The  plaintiffs  then  offered  to  prove  by  Willard  what  the  contract 
was  betAvecn  the  parties.  This  was  objected  to ;  but  with  the  view  of 
ascertaining  what  contract  was  made,  so  as  to  determine  whether 
Willard  had  authority  to  write  the  paper,  the  judge  admitted  the 
testimony. 

Willard  then  testified  that  on  the  24th  of  February,  1835,  Hawkins 
asked  the  defendant  if  he  had  flour  to  sell,  and  the  defendant  replied 
that  he  had  twenty  barrels  to  sell  at  $5.50  per  barrel ;  that  Hawkins 
said  he  would  take  it,  and  that  he  wanted  a  memorandum  or  minute  or 
bill  (the  witness  could  not  tell  which)  ;  that  the  defendant  handed 
some  paper  to  the  witness  and  told  him  to  put  it  down  or  to  write 
something ;  that  the  witness  then  wi'Ote  the  memorandum  in  question 
and  delivered  it  to  Hawkins  or  to  the  defendant ;  that  Hawkins  went 
away  with  the  paper;  that  the  witness  did  not  know  whether  the 
defendant  read  the  writing  or  heard  it  read,  or  in  any  way  ascertained 
what  was  written. 

The  defendant  contended  that  the  paper  in  question  was  not  such  a 
memorandum  in  writing  signed  by  the  party  to  be  charged  as  was 
required  by  the  Statute  of  Frauds. 

The  jury  were  instructed  that,  if  the  memorandum  was  substantially 
such  as  the  agreement  which  the  defendant  made  with  Hawkins,  they 
might  infer  that  AYillard  was  authorized  to  make  such  memorandum ; 
that  this  was  a  question  exclusively  for  their  determination ;  and  that 
if  they  believed  that  the  defendant  authorized  Willard  to  write  the 
contract  substantially  as  this  was  written,  then  the  contract  was 
sufficient  to  satisfy  the  requisition  of  the  Statute  of  Frauds. 

The   jury   returned  a  verdict   for   the   plaintiffs.      The   defendant 
excepted  to  the  foregoing  instructions. 
Coffin,  for  the  defendant. 

Warren,  Battelle,  and  Williams,  for  the  plaintiffs,  cited,  to  the  point 
that  the  form  of  the  memorandum  was  sufficient,  Penniman  v.  Harts- 
horn, 13  Mass.  R.  90 ;  Whitwell  v.  Wyer,  11  Mass.  R.  6 ;  4  Wheaton, 
89,  94,  note ;  Barstow  v.  Gray,  3  Greenleaf,  409 ;  Bailey  v.  Ogden,  3 
Johns.  R.  399 :  that  it  was  signed  within  the  meaning  of  the  statute, 
2  Stark.  Ev.  613 ;  Knight  v.  Crockford,  1  Esp.  R.  190 ;  Saunderson  v. 


556  HAWKINS   V.    CHACE.  [CHAP.    I. 

Jackson,  2  Bos.  &  Pul.  238 :  and  that  the  act  done  by  Willard  under 
the  verbal  authority  was  binding  on  the  defendant,  Ulen  v.  Kittredge, 
7  Mass.  R.  233 ;  Warring  v.  Williams,  8.  Pick.  826 ;  Shaw  v.  Nudd,  8 
Pick.  9 ;  Rucker  v.  Cammeyer,  1  Esp.  R.  105 ;  6  East,  307,  note  1. 

Pee  Curiam.  The  questions  arising  are :  1.  Whether  this  bill  of 
parcels  is  a  sufficient  memorandum  of  a  contract  within  the  statute 
against  frauds ;  2.  Whether  it  was  signed  by  the  witness  Willard  by 
the  authority  of  the  defendant  and  delivei'ed  to  the  plaintiffs ;  and  if 
so,  then  3.  Whether  there  was  evidence  sufficient  to  prove  that  the 
contract  was  rescinded. 

1.  As  to  the  sufficiency  of  the  memorandum.  It  states  that  the 
plaintiffs  had  bought  the  flour  of  the  defendant,  the  number  of  barrels, 
and  the  price ;  but  it  does  not  state  when  the  flour  was  to  be  delivered 
or  when  the  price  was  to  be  paid.  But  in  the  absence  of  any  other 
evidence  the  contract  is  by  law  supposed  to  be  performed,  on  request, 
in  a  reasonable  time.  The  flour  was  to  be  delivered,  and  the  price  paid 
upon  demand.  It  is  what  is  known  among  men  of  business  as  a  cash 
transaction. 

The  contract  is  to  be  construed  from  its  terms,  and  is  not  to   be 
varied  by  parol  evidence.     Parkhurst  v.  Van  Courtlandt,  1  Johns.  Ch. 
279 ;  Brodie  v.  St.  Paul,  1  Ves.  jun.  326 ;  Bailey  v.  Ogden,  3  Johns.  R. 
399.     It  is  expressed  very  nearly  in  the  words  of  the  memorandum 
which  was  adjudged  sufficient  in  the  case  of  Saunderson  v.  Jackson,  2 
Bos.  &  Pul.  238.     That  was  an  action  for  not  delivering  a  quantity  of 
gin.     When  the  plaintiff  delivered  an  order  for  the  gin  the  defendants 
delivered  a  bill  of  parcels  to  the  plaintiff  in  these  words :  "  London. 
Bought  of  Jackson  &  Hankin,  distillers.  No.  8  Oxford  St.,  1000  gallons 
of  gin,  1  in  5  gin,  7s.,  £350."     The  words,  &c.,  italicized  were  written, 
and  the  rest  of  the  memorandum  was  printed.     In  about  a  month 
afterwards  the  defendants  wrote  a  letter  to  the  plaintiff",  wishing  to  know 
when  they  should  send  a  part  of  the  order  to  the  plaintiff,  and  request- 
ing a  little  time  in  the  delivery  of  the  remainder.     It  was  held  that 
the  bill  of  parcels,  though  not  the  contract  itself,  might  amount  to  a 
note  or  memorandum  of  the  contract  within  the  meaning  of  the  stat- 
ute.    And  although  the  names  of  the  vendors  were  printed,  yet  the 
letter  which  referred  to  the  order  was  signed  by  the  defendants.     Lord 
Eldon  very  pertinently  remarked :  "  The  single  question  is  whether,  if 
a  man  be  in  the  habit  of  printing  instead  of  writing  his  name,  he  may 
not  be  said  to  sign  by  his  printed  name  as  well  as  his  written  name." 
By  delivering  the  paper  in  that  form  he  must  be  considered  as  adopt- 
ing the  printed  part  as  if  it  had  been  written.     The  bill  of  parcels  so 
delivered  by  the  defendants  in  that  case  was  held  to  be  a  sufficient 
memorandum  of  the  contract. 

And  we  all  think  the  bill  of  parcels  in  the  case  at  bar  is  to  be  con- 
sidered as  in  itself  a  sufficient  note  or  memorandum  of  the  contract 


SECT.    VI.]  HAWKINS    V.    CHACE.  557 

now  sued,  if  it  were  properly  signed  and  delivered  by  the  party  to  be 
charged. 

2.  But  upon  this  second  point  the  court  are  of  opinion  that,  as  the 
matter  was  left  to  the  jury,  it  does  not  appear  by  the  verdict  that  the 
name  of  William  H.  Chace  was  written  by  Willard  by  the  authority 
of  the  defendant  or  .on  his  behalf.  It  is  purely  and  exclusively  a  ques- 
tion of  authority.  Two  things  may  be  conceded  as  well  settled  by 
authorities :  first,  that  to  constitute  a  signing  within  the  meaning  of 
the  Statute  of  Frauds  it  is  not  necessary  that  the  signatures  be  placed 
at  the  bottom ;  but  if  the  party  to  be  charged  has  inserted  his  name  in 
any  part  of  the  paper  in  his  own  handwriting,  it  is  sufficient  to  give  it 
effect  (Saunderson  v.  Jackson,  2  Bos.  &  Pul.  238;  Knight  v.  Crock- 
ford,  1  Esp.  R.  190 ;  Penniman  v.  Hartshorn,  13  Mass.  R.  87)  ;  and,  sec- 
ondly, that  the  authority  of  one  person  to  sign  for  another  need  not  itself 
be  proved  by  written  evidence,  but  may  be  well  proved  by  parol  evi- 
dence. The  latter  is  the  common  case  of  an  auctioneer  Avho  is  deemed 
the  agent  of  both  parties,  and  w^hose  memorandum  therefore,  entered 
in  his  own  book,  is  taken  to  be  a  memorandum  in  writing  binding  upon 
both  parties,  because  by  them  respectively  authorized. 

But  we  know  of  no  case  in  which  such  a  sisi:nature  has  been  deemed 
good,  unless  where  it  appears  from  the  paper  that  the  name  was  intro- 
duced by  the  party  to  be  charged  in  his  own  handwriting,  as  in  Knight 
V.  Crookford  and  Penniman  v.  Hai-tshoru ;  or  where  the  party  making 
the  memorandum  has  stood  in  such  relation  as  to  give  the  effect  to  his 
act  to  bind  his  principal  or  emj^loyer.  We  think  there  is  no  doubt 
that,  if  one  is  specially  requested  to  sign  or  authenticate  a  paper  for 
another  and  he  })uts  the  name  of  his  principal  to  any  part  of  the  paper 
for  that  i»urpose,  it  would  be  good,  though  we  are  not  aware  that  any 
case  cited  is  precisely  to  that  point.  But  we  think  the  whole  evidence 
in  the  present  case  tends  only  to  shew  that  the  defendant  requested 
Willard  to  draw  up  some  paper  for  him  to  sign,  and  that  some  further 
act  was  contemplated  to  give  it  any  effect.  It  was  not  read  to  the 
defendant  or  in  his  hearing ;  it  was  not  delivered  to  the  i)laintiffs  by 
him  or  by  his  direction  ;  and  it  does  not  appear  that  he  knew  the  con- 
tents. The  words  "  received  payment "  on  the  bill,  not  signed,  shew 
that  it  was  regarded  as  a  blank  to  be  filled  before  it  was  to  have  effect ; 
and  it  was  written  either  under  an  expectation  that  the  transaction 
was  to  be  closed,  the  money  paid,  and  the  receipt  given  then,  or  to  be 
signed  and  operate  as  a  receipt  when  the  money  should  be  jijud.  But 
supposing  the  evidence  admissible,  the  court  are  of  ojnnion  tliat,  instead 
of  leaving  it  to  the  jury  to  find  whether  the  memorandum  of  the  24th 
of  February  was  substantially  such  as  the  agreement  whi^ch  Chace 
made  with  Hawkins,  and  whether  Chace  authorized  Willard  to  write 
the  contract  substantially  as  this  was  written,  it  should  have  been  left 
to  the  jury  to  find  whether  Chace  authorized  AVillard  to  make  and 


558  DAVIS   V.    SHIELDS.  [CHAP.    I. 

sign  any  memorandum  in  his  behalf,  or  after  this  memorandum  was 
written  whether  Chace  adopted  it,  and  delivered  it  or  directed  it  to  be 
delivered  as  a  memorandum  of  his  agreement  with  the  plaintiffs;  and 
in  either  of  the  last  cases  to  find  for  the  plaintiffs  upon  this  ground ; 
otherwise  for  the  defendant. 

Verdict  set  aside,  and  a  new  trial  to  he  had  in  the  Court  of 
Common  Pleas. 


DAVIS   A>JD   Others   v.   SHIELDS. 
New  York  Court  of  Errors,  1841. 

[Reported  in  26  Wendell,  341.] 

Error  from  the  Supreme  Court.  .  Shields  brought  an  action  of 
assumpsit  in  the  Superior  Court  of  the  City  of  New  York  for  the  non- 
delivery of  a  quantity  of  u'on  purchased  by  him  of  Davis  and  others. 
The  purchase  was  made  on  the  31st  January,  1836,  of  a  broker  of 
the  defendants,  of  fifty  tons  of  English  iron  at  170  per  ton,  at  a  credit 
of  six  months,  the  iron  to  be  in  good  order,  and  the  plaintiff  not  bound 
to  take  it  unless  it  arrived  in  reasonable  time.  The  iron  was  shipped 
in  England  on  board  the  brig  Anna,  and  the  invoice  and  bill  of  lading 
dated  30th  October,  1835,  were  received  by  the  defendants  on  the 
4th  December ;  but  the  brig  did  not  arrive  in  New  York  until  some 
time  between  the  15th  and  25th  April,  1836.  The  price  of  iron 
then  had  advanced  to  198  per  ton.  On  the  27th  April  the  plaintiff 
tendered  $3500  to  the  defendants,  and  demanded  the  iron,  which  they 
refused  to  deliver.  The  broker  made  a  memorandum  of  the  sale  in 
his  book  in  these  words:  "Jan.  21st.  Sold  this  day  to  George  W. 
Shields,  on  account  of  Davis  &  Brooks,  fifty  tons  of  English  bar-iron,  — 
say  twenty-five  tons  one  and  three-fourths  by  one-half;  twenty-five 
tons  one  and  three-fourths  by  five-eighths ;  fifty  tons  at  $70,  to  arrive 
on  board  brig  Anna ;  said  iron  to  be  in  good  order  or  no  sale."  The 
broker  communicated  the  sale  to  the  defendants,  but  no  sale  note  was 
delivered  to  either  of  the  parties.  The  defendants  proved  that  the 
usual  passages  of  ships  carrying  iron  varied  from  thirty  to  «eventy 
days  ;  that  one  hundred  and  seventy  days  was  a  long  passage,  and  that 
they  considered  the  vessel  lost.  On  the  trial  of  the  cause  the  counsel 
for  the  defendants  insisted  that  the  memorandum  of  the  broker  was 
not  a  sufiicient  note  of  the  contract  within  the  statute  (2  R.  S.  130,  §  3), 
inasmuch  as  it  did  not  contain  the  agreement  as  to  the  time  of  pay- 
ment, nor  the  condition  of  arrival  in  reasonable  time,  and  was  not 


SECT.    VI.]  DAVIS   V.    SHIELDS.  559 

subscribed.  The  Cliief  Justice  of  the  Superior  Court  charged  the  jury 
that  the  memorandum  of  the  broker  was  sufficient,  and  that  the  pUiin- 
tiff  was  entitled  to  recover.  There  were  other  questions  raised  on  the 
trial,  and  adverted  to  in  the  charge  of  the  Chief  Justice,  but  not  now 
necessary  to  be  stated.  The  jury  found  a  verdict  for  the  plaintiff,  on 
which  judgment  was  entered.  The  defendants  removed  the  record 
into  the  Sui)reme  Court,  where  the  judgment  was  affinned.  See  the 
opinion  delivered  in  that  court,  24  Wendell,  324,  et  seq}  The  defend- 
ants sued  out  a  writ  of  error.     The  case  was  argued  here  by 

1  By  the  Court,  Cowen,  J.      The  two  classes  of  objections  collateral  to  the 
memorandum  of  the  contract  in  question  admit,  I  think,  of  sliort  answers.     The  first 
objection  is  that  the  broker  departed  from  his  authority  in  omitting  to  state  the  time 
of  credit  and  the  condition  of  arrival  within  a  reasonable  time ;  in  other  words,  that 
the  contract  stood  in  his  book  as  a  cash  sale,  and  imported  an  obligation  to  receive  at 
whatever  time  the  ship  might  chance  to  arrive,  though  delayed  beyond  a  reasonable 
time.     That  in  this  he  exceeded  the  authority  conferred  on  him  by  the  plaintiff  below, 
may,  I  think,  be  conceded  without  the  least  prejudice  to  his  claim.    The  terms  omitted 
were  restrictions  which  lie  imposed  upon  the  broker  for  his  own  benefit,  and  were  no 
doubt  in  fact  more  favorable  to  him  than  those  actually  inserted  in  the  memorandum. 
To  this  however  it  did  not  lie  with  the  defendants  to  object ;  nor  do  they  appear  to 
have  done  so  in  fact.     The  plaintiff  certainly  had  the  right  to  object ;  but  he  chose 
to  adopt  an  act  upon  the  entry  of  his  agent  as  true,  although  this  resulted  in  the 
harder  terms  of  immediate  payment  and  unreasonable  delay.     The  rule  in  such  case 
is  Onmis  ratihabilio  rttrotmhitur  et  mandato  aquiparatur.    Long  on  Sales,  402,  Kand's  ed. 
1839.    This  rule  extends  as  well  to  an  authority  for  executing  a  contract  in  conformity 
to  the  Statute  of  Frauds  as  to  any  other ;  and  if  the  contract  relate  to  the  sale  of  goods  or 
any  other  act  required  to  be-in  writing  by  title  2,  in  2  R.  S.  70,  2d  ed.,  the  authority 
need  not  be  in  writing,  whether  it  arise  from  original  delegation  or  subsequent  adop- 
tion.    Per  .Jackson,  J.,  in  Lent  v.  Padelford,  10  Mass.  R.  230,  236.     The  propriety  of 
applying  the  maxim  Oiimis  ratihahitio,  &c.,  to  such  cases  was  very  fully  considered  by 
the  C.  B.  in  the  late  case  of  Maclean  v.  Dunn,  1  Moore  &  Payne,  761,  766,  and  con- 
ceded in  this  very  case  of  a  broker's  memorandum,     i  Bing.  722,  s.  c.  more  briefly 
reported.     Best,  C.  J.,  cited  two  previous  cases  to  the  same  efiect :  Kinnitz  v.  Surry, 
Paley's  Pr.  &  Ag.  171,  note ;  and  Soames  v.  Spencer,  1  Dowl.  &  Ryl.  32.    They  are  to 
the  exact  point ;  and  the  surprise  is,  after  what  Best,  C.  J.,  said  in  Moore  &  Payne 
and  Bingham,  that  the  question  should  ever  have  been  raised.    In  regard  to  the  assent 
of  Davis  &  Brooks,  beside  its  being  palpably  unnecessary  in  respect  to  the  terms  of 
the  contract  which  made  in  their  favor,  still,  if  that  were  not  so,  their  subsequent 
assent  should,  prima  facie,  be  presumed.     Vid.  1  Phil.  Ev.,  notes  by  Cowen  &  Hill, 
pp.  301,  303.    The  conditions,  as  the  broker  swore,  were  communicated  to  them  ;  and 
we  hear  of  no  dissent  by  them  on  account  of  a  supposed  departure  from  authority  in 
making  the  contract  most  favorable  to  their  side.     But  even  if  they  had  actually  dis- 
sented on  such  ground,  who  ever  heard  of  such  an  objection  being  allowed  \     I  tell  an 
agent  to  sell  my  horse  on  credit,  and  he  brings  me  gold ;  who  ever  thought  I  could 
object  that  he  had  exceeded  his  autliority  ?     The  more  favorable  term  is  always  im- 
plied by  law  in  the  very  act  of  employing  an  agent.     1  Liv.  on  Ag.  07.     The  term  of 
arrival  in  reasonable  time  was  obviously  a  mere  proviso  or  condition  on  the  side  of 
the  vendee,  with  which  the  vendors  had  nothing  to  do  by  way  of  objection  on  their 
part.  .  .  . 

The  objection  most  relied  on,  and  certainly  the  most  plausible  one,  is  that  arising  on 
the  face  of  the  memorandum.  This  was  not  literally  "subscribed."  The  objection 
rests  on  the  Revisers'  introduction  of  this  new  word  into  our  Statute  of  Frauds,  2  R.  S. 


560  DAVIS   V.    SHIELDS.  [CHAP.   I. 

D.  Z/Ord,  Jr.,  for  plaintiffs  in  error. 
J.  Taylor  and  D.  jSelden,  for  the  defendant  in  error. 
Points  submitted  and  argued  on  the  part  of  the  plaintiffs  in  error :  — 
I.  The  memorandum  in  the  broker's  book  was  not  a  valid  contract : 
it  was  unauthorized. 

70,  2d  ed.,  instead  of  the  word  "  signed,"  which  was  the  one  used  in  tlie  former  statute. 
It  is,  I  think,  enough  to  answer  that  the  words  "signing  "  and  "  subscribing,"  when 
applied  to  a  contract  or  other  instrument,  always  in  common  understanding  meant 
the  same  thing ;  viz.,  a  writing  of  one's  name  at  the  bottom!.  The  Legislature  have 
themselves  used  the  two  words  as  synonymous  in  the  statute  of  wills.  2  R.  S.  7, 
§§  40,  41,  2d  ed.  So  clear  and  universal  was  this  understanding  of  the  word  "  sign- 
ing," that  its  use  in  the  old  statute  was  at  first  supposed  to  require  an  actual  subscrip- 
tion at  the  bottom.  It  was  at  length  agreed,  however,  that  the  word  might  have  a 
secondary  sense,  and  indeed  must  have,  or  the  statute  would  in  many  cases  annul 
contracts  when  the  name  was  written  or  inserted  in  some  other  place  with  the  equally 
obvious  intent  of  giving  authenticitj'  to  the  instrument.  Accordingly,  an  attestation 
as  a  witness,  a  letter  written  assenting  to  the  terms  of  some  unsigned  memorandum, 
or  names  inserted  in  the  business  memoranda  of  brokers,  auctioneers,  &c.,  though 
only  in  the  body,  if  done  with  intent  to  preserve  evidence  of  the  transaction,  were 
holden  to  be  a  substantial  compliance  with  the  statute,  because  they  placed  the  matter 
beyond  the  danger  of  mere  oral  evidence,  equally  with  a  literal  signing  by  subscrip- 
tion. Roberts  on  Frauds,  119,  Am.  ed.  of  1807;  Long  on  Sales,  57,  et  seq.,  Rand's  ed. 
of  1839,  and  the  cases  there  cited;  Fell  on  Com.  Guar.  ch.  4,  p.  88,  et  seq.,  Am.  ed. 
of  1825,  and  the  cases  there  cited.  Even  an  insertion  of  the  name  by  the  broker  in  a 
bare  pencil  memorandum  has  been  held  sufficient.  Merritt  v.  Clason,  12  Johns.  R. 
102 ;  14  id.  484,  s.  c.  on  error. 

It  requires  no  greater  judicial  effort  to  enlarge  the  word  "  subscribe  "  into  a  secondary 
sense  than  the  word  "  sign  ;  "  and  such  a  sense  was  perhaps  oftener  given  to  the  former 
in  comnion  parlance.  I  do  or  do  not  subscribe  to  such  a  sentiment  or  doctrine,  signi- 
fies mere  assent  or  dissent  without  the  act  of  writing  at  all ;  and  indeed  that  is  one  of 
the  principal  senses  ascribed  to  the  word  by  Johnson  in  his  quarto  dictionary,  where 
it  is  illustrated  by  a  passage  from  Hooker.  In  that  he  says  it  simply  signifies  to  give 
consent,  the  very  object  which  the  Statute  of  Frauds  is  in  search  of;  and  it  was  always 
satisfied  if  the  name  was  written  or  even  printed  in  such  a  connection  or  under  such 
circumstances  as  to  indicate  consent  to  become  bound.  Among  other  things,  it  looked 
to  the  course  of  business,  and  found  the  omission  of  the  name  at  the  bottom  very  com- 
mon among  brokers,  auctioneers,  and  other  agents.  It  adopted  such  acts  as  signing 
because  the  intent  was  plain,  and  they  were  as  much  beyond  the  evil  intended  to  be 
remedied  by  tlie  statute  as  if  the  name  had  been  placed  at  the  foot.  A  judge  signs  a 
record  in  the  margin  ;  and  there  are  peculiar  places  of  affixing  the  name  for  the  pur- 
poses of  authentication  in  various  branches  of  business  without  coming  up  to  the  com- 
mon notion  of  signing.  With  brokers,  auctioneers,  correspondents,  &e.,  whose  acts  are 
very  commonly  to  be  tested  by  the  Statute  of  Frauds,  all  must  be  void,  were  the  courts 
suddenly  to  wheel  about  and  tm-n  their  faces  against  the  former  principles  of  con- 
struction. They  would  thus  subvert  half  the  contracts  of  sale  in  the  most  commercial 
portions  of  the  State;  a  mischief  which  I  admit  they  must  do  if  the  new  and  revised 
statutes  have  left  them  no  alternative.  But  the  principle  of  construction  remains  the 
same,  and  rests  on  a  broader  foundation,  and  a  state  of  things  calling  more  imperiously 
for  its  enforcement  in  proportion  as  memoranda  of  the  kind  in  question  have  long  had 
a  direct  sanction,  not  only  in  the  usages  of  business,  but  under  the  Statute  of  Frauds 
itself.  A  subscription  by  merely  inserting  the  name  is  as  effectual  a  guard  against 
perjury  and  fraud  as  it  ever  was.  Being  out  of  the  mischief  which  the  statute  intended 
to  avoid,  it  is  therefore  out  of  the  statute  itself.     If  an  authority  be  wanting  for  such 


SECT.    VI.]  DAVIS   V.    SHIELDS.  561 

1.  The  contract  declared  on  is  of  the  class  based  on  the  considera- 
tion of  mutual  agreements.  In  such  contracts  the  agreement  on  each 
§ide  forming  the  consideration  to  the  other  party  must  be  binding  at 
the  date  of  the  contract,  or  the  contract  is  without  consideration  and 
void.  Such  contracts,  both  in  justice  and  in  law,  rest  ujjon  the  basis  of 
mutual  and  reciprocal  obligation.  Nichols  v.  Raynbred,  Hobart,  88  ; 
Livingston  v.  Rogers,  1  Caines  Rep.  583  ;  Buniet  v.  Bisco,  4  Johns. 
R.  235  ;  Cooke  v.  Oxley,  3  Term  Rep.  653  ;  Payne  v.  Cave,  3  T.  R.  148; 
1  Chitty,  Pleading,  325 ;  Keep  v.  Goodrich,  12  Johns.  R.  397  ;  Russell 
V.  Nicoll,  3  Wendell,  120,  Marcy's  Opinion ;  Lawrenson  v.  Butler,  1  Sch. 
&  Lefroy,  13. 

2.  The  only  contract  in  evidence  is  the  entry  in  the  broker's  book, 
and  it  cannot  be  varied  or  explained  by  parol  evidence.  Peltier  v. 
Collins,  3  Wendell,  459;  Bailey  v.  Ogden,  3  Johns.  R.  411;  Powell 
V.  Divett,  15  East,  29.  That  contract  contains  no  stipulation  or  con- 
dition as  to  credit,  or  the  time  of  the  arrival  of  the  iron. 

3.  The  authority  of  the  broker,  although  it  may  be  without  writing, 
must  be  from  each  party  to  sign  the  identical  contract ;  without  such 
authority  from  both,  the  contract  is  not  the  mutual  obligation  of  each 
and  is  void.  Camming  v.  Roebuck,  1  Holt,  172,  3  C.  Law  Rep.  65 ; 
Thornton  v.  Kemster,  5  Taunton's  Rep.  786;  Peltier  v.  Collins,  3  Wen- 
dell, 459. 

an  obvious  principle  of  construction,  take  the  words  of  Lord  Hardwicke  in  Welford  v. 
Beazely,  3  Atk.  503.  There  the  party  to  be  cliarged  had. merely  put  his  name  as  a 
witness.  The  Lord  Chancellor  said  :  "  The  meaning  of  the  statute  is  to  reduce  con- 
tracts to  a  certainty  in  order  to  avoid  perjury  on  the  one  hand  and  fraud  on  the  otlier ; 
and  therefore  botli  in  this  court  and  the  courts  of  i-ommon  law,  where  the  agreement 
has  been  reduced  to  such  a  certainty,  and  the  substance  of  the  statute  has  been  com- 
plied with  in  the  material  part,  the  forms  have  never  been  insisted  upon."  The  law 
requires  that  a  bill  or  note  payable  to  order  should  be  indorsed,  in  order  to  its  transfer, 
and  the  subjecting  of  the  payee  to  certain  definite  liability  ;  yet  if  he  put  his  name 
on  the  face,  or  elsewhere  on  the  paper,  or  a  paper  annexed,  with  intent  that  the  act 
shall  operate  as  an  indorsement,  it  is  the  same  thing,  because  the  substance  of  the 
legal  requisition  is  thus  fulfilled.     This  has  been  often  held. 

I  will  not  now  do  more  than  advert  to  the  general  evil  of  considering  every  literal 
or  verbal  deviation  in  our  Revised  Statutes  from  the  former  acts  which  they  adopt  as  a 
change  in  substance.  We  had  occasion  to  consider  it  in  some  measure  at  the  last 
term,  especially  in  respect  to  the  Statute  of  Frauds ;  and  daily  observation  confirms 
the  views  then  expressed  with  regard  to  all  such  former  statutes  as  entered  into  and 
governed  the  general  business  of  the  community.  They  made  and  will  continue  to 
make  a  part  of  the  commercial  and  social  habitude  ;  and  even  where  an  alteration  was 
obviously  intended,  and  was  plainly  expedient  or  necessary,  a  century  must  perhaps 
go  by  ere  the  change  will  be  actually  effected.  Some  fifty  or  more  years  have  passed 
since  a  very  necessary  alteration  was  made  by  statute  in  the  denomination  of  our  cur- 
rency ;  and  although  the  necessity  was  universally  conceded,  perhaps  fift}-  more  will 
not  practically  complete  the  change.  To  make  the  numerous  verbal  alterations  in  our 
Revised  Statutes,  in  all  or  even  a  majority  of  instances,  an  actual  departure  from  the 
former  law,  would  be  to  open  Pandora's  box.  The  evils  would  be  intolerable,  and  the 
whole  community  would  at  once  demand  their  repeal. 

Judgment  ajfirmed.  —  Ed. 
VOL.  I.  36 


562  DAVIS   V.    SHIELDS,  [CHAP.    I. 

4.  The  authority  of  the  buyer  to  the  broker  was  only  to  sign  a  con- 
tract providing  for  a  credit,  and  to  have  a  condition  of  arrival  in 
reasonable  time.  Had  the  sellers  in  this  case  attempted  to  enforce  the 
contract,  the  buyer  was  clearly  not  bound  by  this  memorandum,  for  he 
never  authorized  this  contract.  And  the  seller  did  not  authorize  the 
signing  of  a  memorandum,  unless  it  was  also  authorized  by  the  buyer. 
This  memorandum  was  therefore  void. 

5.  The  entry  in  the  broker's  book  (with  its  deficiencies)  never  was 
communicated  to  the  parties.  On  the  arrival  of  the  iron,  and  the 
refusal  of  the  sellers  to  acknowledge  the  contract,  it  was  too  late  for 
the  buyer  to  give  it  a  retroactive  effect  by  adoption,  if  that  ever  can  be 
done  with  such  a  class  of  contracts. 

6.  No  assent  of  the  sellers  can,  without  evidence,  be  presumed  .to  a 
contract  because  of  its  terms  being  advantageous,  unless  it  be  first 
shewn  to  be  binding  on  the  other  party ,^  .  .  . 

III.  The  broker's  entry  in  his  book  was  not  a  memorandum  of  the 
contract  subscribed  by  the  parties  to  be  charged  thereby.  2  R.  S.  70, 
136,  §  3. 

1.  The  entry  is  not  in  its  formation  a  memorandum  for  the  signature 
or  use  of  the  parties :  it  was  merely  an  entry  for  the  business  purposes 
of  the  broker,  and  not  of  the  principals.  Hicks  v.  Whitmore,  12  Wen- 
dell, 550. 

2.  The  statute  making  a  special  and  express  provision  for  sales  by 
auctioneers  (equally  agents  of  both  parties  as  brokers)  evinces  a  clear 
purpose  to  exclude  the  constructive  signing  of  mere  brokers'  entries  in 
their  own  books ;  a  mode  of  authentication  contrary  to  the  policy  and 
object  of  the  statute.  2  R.  S.  70,  136,  §  3.  See  M'Comb  v.  Wright, 
4  Johns.  Ch.  R.  663,  as  to  auctioneers'  entries. 

3.  The  alteration  in  the  old  statute,  by  changing  "  signing  "  for  "  sub- 
scribing," was  intended  to  introduce  a  more  specific  and  safe  mode  of 
authentication  than  what  a  loose  construction  had  given  to  the  term 
"  signing."  The  change  was  introduced  in  reference  to  a  recognized 
difference  in  the  terms.  2  R.  S.  70, 136,  §  3,  compared  with  1  R.  L.  1813, 
79,  §  15  ;  Revisers'  Notes,  3  R.  S.  (2d  ed.)  656,  7  (§  8  as  to  land  differs)  ; 
Merritt  v.  Clason,  12  Johns.  R.  102.  Compare  Parker  v.  Willson, 
15  Wendell,  346,  with  10  Wendell  R.  250,  Rogers  v.  Kneeland. 

4.  A  writing  in  the  body  of  a  contract  was  held  to  be  a  signing  in 
analogy  to  the  use  of  the  word,  as  adjudged,  in  the  Statute  of  Frauds 
as  to  wills.  The  alteration  and  definition  in  the  Statute  of  Frauds  as 
to  wills  is  in  pari  materia  to  govern  the  alteration  in  the  Statute  of 
Frauds  as  to  contracts.  See  statute  as  to  wills,  1  R.  L.  1813,  p.  364, 
§  2;  2  R.  S,  7,63, §  40;  3  R.  S.  627,  Revisers'  Notes.    Cases  on  signing 

1  The  parts  omitted  are  not  material  to  the  question  of  the  sufficiency  of  the  mem- 
orandum. —  Ed. 


SECT.    VI.]  DAVIS    V.    SHIELDS.  563 

of  wills:  Viner  Ab.  Devise,  N.  7,  pi.  2  ;  Lemayne  v.  Stanley,  3  Lev.  1. 
As  to  contracts :  Hatton  v.  Gray,  2  Ch.  Cas.  164 ;  Knight  v.  Crock- 
ford,  1  Esp.  R.  190 ;  Coles  v.  Trecothick,  9  Vesey,  248 ;  Saunderson  «. 
Jackson,  2  Bos.  &  P.  238. 

5.  The  course  of  decision  on  the  Revised  Statutes  as  to  contracts 
required  to  be  in  writing  has  been  unifoiTnly,  excepting  in  this  case, 
upon  a  strict  and  not  latitudinarian  construction.  The  words  of  the 
statute  ought  to  be  construed  literally  and  not  metaphorically.  See 
Downs  V.  Ross,  23  Wend.  272 ;  Parker  v.  Willson,  15  Wend.  346 ; 
Hicks  V.  Whitraore,  12  Wend.  548.  .  .  . 

After  advisement  the  following  opinions  were  delivered  :  — 

By  the  Chancellor.  .  .  .  The  broker's  memorandum  was  fatally 
defective  in  not  containing  the  real  agreement  between  the  parties,  as 
well  as  in  not  being  subscribed  by  the  agent  of  Davis  &  Brooks. 
Although  it  is  not  necessary  that  both  parties  should  subsciibe  the 
agreement  to  make  it  obligatory  upon  the  one  who  does  subscribe  the 
same,  it  is  necessary  that  they  should  both  assent  to  such  agreement  to 
make  it  binding  upon  either.  Here  Green  was  not  the  broker  of  the 
buyer,  who  made  his  own  contract.  He  was  therefore  the  agent  of  the 
vendors  merely ;  and  if  his  nanie  had  been  subscribed  to  this  memoran- 
dum, which  was  never  shewn  to  Shields,  it  would  not  have  made  such  a 
contract,  which  he  had  never  assented  to,  binding  upon  him  ;  nor  even 
would  it  have  been  evidence  of  the  acceptance  of  such  a  contract  on 
the  part  of  Shields  ;  and  without  an  acceptance  on  the  part  of  Shields, 
it  could  not  be  binding  upon  Davis  &  Brooks.  The  omission  of  the 
stipidated  time  of  credit  in  the  written  memorandum  rendered  the  sup- 
posed agreement  stated  therein  wholly  inoperative  as  to  both  parties : 
as  to  the  purchaser,  because  he  had  not  signed  any  such  contract  or 
authorized  any  one  to  sign  it  for  him  ;  and  as  to  the  vendors,  because  he 
had  never  consented  to  accept  of  such  an  agreement  from  them  :  and 
there  being  no  contract  which  was  binding  upon  either  party  at  the 
time  the  parol  agi-eement  was  made.  Shields  could  not  make  it  a  valid 
agreement  as  against  the  other  party  by  assenting  to  the  written  mem- 
orandum after  the  subject  of  the  contract  had  risen  more  than  twenty- 
five  per  cent,  in  value. 

Again,  I  think  there  was  no  memorandum  of  any  contract  subscribed 
by  the  parties  who  are  now  sought  to  be  charged  thereby,  or  by  their 
agent,  within  the  intent  and  meaning  of  the  Revised  Statutes  on  this 
subject.  The  former  Statute  of  Frauds  required  the  note  or  memoran- 
dum of  the  agreement  to  be  signed  by  the  party  charged  thereby.  And 
the  courts  had  not  only  decided  that  it  was  not  necessary  that  it  should 
be  signed  by  both  parties  so  as  to  make  it  legally  binding  upon  both, 
or  upon  neither ;  but  they  had  in  many  cases  held  that  a  literal  signing 
of  the  memorandum  by  the  party  who  was  sought  to  be  charged 
thereby  was  not  necessary.     It  will  be  seen  however  by  a  reference  to 


664  DAVIS   V.    SHIELDS.  [CHAP.    I. 

their  notes,  that  the  Revisers  proposed  to  alter  the  law  in  both  these 
particulars.  They  therefore  proposed  a  section  requiring  the  agreement 
to  be  reduced  to  writing  at  the  time  it  was  made,  and  that  it  should 
be  "  subscribed  "  by  the  party  by  whom  it  was  to  be  performed,  and 
by  all  the  parties  thereto  where  it  contained  promises  to  be  performed 
by  each  of  them.  See  3  R.  S,  (2d  ed.)  656.  And  they  state  in  express 
terras  that  one  of  the  differences  between  the  section  prepared  by  them 
and  the  old  law  is  in  requiring  the  agreement  to  be  "subscribed ;"  by 
which  term,  as  their  note  to  the  8th  section  of  preceding  title  shews, 
it  was  intended  to  require  a  literal  signing  of  the  agreement  at  the  end 
of  the  same.  The  Legislature  however  differed  with  the  Revisers  as  to 
some  of  the  proposed  alterations,  both  in  relation  to  contracts  for  the 
sale  of  real  estate  and  also  as  to  agreements  for  the  sale  of  chattels 
and  choses  in  action.  They  therefore  only  required  the  contract  for 
the  sale  of  lands  or  any  interest  therein  to  be  subscribed  by  the  party 
by  whom  the  sale  or  lease  was  to  be  made,  or  by  his  lawfully  authorized 
agent ;  and  the  agreement  for  the  sale  of  chattels,  &c.,  to  be  subscribed 
by  the  party  to  be  charged  therewith. '  They  therefore  intentionally 
retained  the  word  "  subscribed  "  in  both  sections  as  proposed  by  the 
Revisers,  for  the  purpose  of  requiring  an  actual  signing  of  the  agree- 
ment or  memorandum  thereof  in  writing ;  and  to  provide  for  the  only 
case  in  which  they  deemed  it  safe  or  expedient  to  dispense  with  a 
literal  signing  or  subscribing  of  the  note  or  memorandum  of  the  agree- 
ment in  writing,  the  Legislature  introduced  a  new  section  not  prepared 
by  the  Revisers,  providing  that  an  auctioneer's  memorandum,  specifying 
the  terms  of  sale  and  the  names  of  the  vendor  and  purchaser,  should  be 
valid.  2  R.  S.  136,  §  4.  Without  entirely  disregarding  the  declared 
will  of  the  Legislature  therefore,  I  do  not  see  how  it  is  possible  we  can 
consider  this  imperfect  broker's  memorandum,  which  does  not  purport 
to  have  been  signed  or  subscribed  by  any  one,  to  be  a  memorandum  of 
this  agreement  subscribed  by  Davis  &  Brooks  or  by  their  agent.  See 
Herbert  v.  Turner  and  Others,  6  London  Jurist,  194.  I  am  therefore 
compelled  to  declare  it  as  my  opinion  that  the  agreement  made  verbally 
by  their  broker  with  Shields  was  not  legally  binding  upon  them ;  and 
that  the  judgment  of  the  court  below  should  be  reversed,  and  a  venire 
de  novo  awarded. 

By  Senator  Veeplanck.  A  broker  is  employed  to  sell  a  quantity 
of  iron  expected  to  arrive  in  a  certain  ship.  He  makes  an  agreement  for 
the  sale  at  a  credit  of  six  months  and  upon  a  condition  suggested  by 
the  purchaser  that  the  iron  should  arrive  in  reasonable  time.  The 
terms  thus  agreed  upon  between  the  broker  and  the  buyer  are  commu- 
nicated by  the  former  to  the  owners,  and  assented  to.  The  broker 
enters  in  his  sale-book  a  memorandum  of  the  agreement,  omitting  the 
terms  of  reasonable  period  of  arrival  and  the  stipulated  six  months' 
credit.     No  sale  note  is  given  to  either  party,  nor  was  the  entry  in  the 


SECT.    VI.]  DAVIS    V.    SHIELDS.  -  565 

sale-book  communicated  to  either.  The  iron  does  not  arrive  until  after 
a  passage  of  five  or  six  times  the  ordinary  length,  during  which  the 
price  of  iron  rises  in  the  New  York  market.  Upon  the  arrival  of  the 
vessel  the  importers  refuse  to  deliver  the  iron  or  comply  with  the  agree- 
ment. The  reason  assigned  for  such  refusal  appears  to  have  been  that 
the  iron  did  not  arrive  in  a  reasonable  time,  as  the  i)robable  motive 
was  the  rise  in  the  market  price  of  the  article  above  the  contract  price. 
But  whatever  may  be  the  merits  of  the  controversy  as  between  the 
individuals,  the  transaction  is  governed  by  general  rules  of  public 
utility  and  positive  legislation  ;  and  upon  these  it  must  be  decided. 

Our  revised  Statute  of  Frauds  enacts  that  "  every  contract  for  the 
sale  of  any  goods,  chattels,  or  things  in  action,  for  the  price  of  fifty 
dollars  or  more,  shall  be  void,  unless  a  note  or  memorandum  of  such 
contract  be  made  in  writing  and  subscribed  by  the  parties  to  be  charged 
thereby."  2  R.  S.  136,  §  3.  If  this  contract  of  sale  be  void  from  defect 
of  compliance  with  these  positive  requirements  of  the  statute,  it  will 
not  be  necessary  to  inquire  how  far  the  condition  of  arrival  within 
reasonable  time  demanded  originally  by  the  buyer  is  a  stipulation  for 
his  benefit  only,  which  he  may  waive  by  an  after  ratification  of  the 
defective  memorandum,  or  whether  it  be  not  also  a  valid  ground  of 
defence  to  the  sellers. 

We  have  here  a  broker's  memorandum  of  an  agreement  of  sale,  dis- 
tinctly mentioning  the  names  of  buyer  and  seller,  —  "  Sold  this  day,  on 
account  of  Davis  &  Brooks,  to  G.  W.  Shields  fifty  tons  of  bar-iron," 
&c.  Allowing  this  entry  to  be  a  correct  note  of  the  contract,  and  to 
have  been  made  by  an  authorized  agent  of  the  parties,  or  at  least  of 
the  party  to  be  charged  in  this  suit,  is  it  yet  duly  subscribed  within  the 
meaning  of  our  Revised  Statutes?  Our  former  statutes,  preserving 
the  language  of  the  original  English  act,  prescribed  that  the  required 
memorandum  should  be  signed  by  the  parties  to  be  charged.  A  series 
of  decisions  in  England,  adopted  as  the  rule  of  our  own  courts,  had 
established  the  construction  that  a  mention  of  the  names  of  the  princi- 
pals in  a  note  of  the  agreement  of  sale  made  by  an  authorized  agent  of 
the  party  sought  to  be  charged  was  a  valid  signing  within  the  act. 
The  earlier  cases  giving  a  judicial  interpretation  to  the  legislative  word 
"signed,"  both  in  the  Statute  of  Frauds  and  as  used  in  respect  to  wills, 
were  governed  by  the  probable  intent  of  the  parties :  as  when  a  tes- 
tator wrote  his  name  in  the  beginning  of  a  will,  "  I,  A.  B.,  do  make  this 
my  last  will ; "  or  when  a  party  contracting  to  sell  wrote  or  printed 
his  name  in  the  actual  otfer  or  contract,  as  "  I,  C.  D.,  do  agree  or 
ofier."  This  natural  extension  of  the  word  "sign"  was  gradually 
enlarged  to  include  every  and  any  mention  of  the  party's  name,  by 
himself  or  by  his  authority  express  or  implied,  made  in  any  note  of  the 
agreement.  In  this  way,  prior  to  the  revision  of  our  statutes,  it  had 
become  a  settled  point,  and  was  so  stated  in  all  the  books  and  cases 


566  DAVIS   V.    SHIELDS.  [CHAP.    I. 

on  this  subject,  that  if  the  name  of  the  party  to  be  charged  appeared  in 
the  memorandum  so  as  to  be  applicable  to  the  whole  substance  of  the 
writing,  and  written  by  himself,  or  by  his  authority  or  with  his  pre- 
sumed assent,  it  is  immaterial  where  the  name  appears,  whether  at  top 
or  bottom,  whether  as  the  signature  to  a  bargain  or  merely  mentioned 
in  the  note  as  that  of  a  buyer  or  seller.  Saunderson  v.  Jackson,  2  Bos. 
&  Pul.  R.  238  ;  Welford  v.  Beazely,  3  Atk.  R.  503 ;  Merritt  v.  Clason, 
12  J.  R.  102,  —  affirmed  in  this  court,  14  Johns.  R.  487.  In  this  last  case 
Chancellor  Kent,  after  stating  the  law  as  above,  adds:  "Forms  are 
not  regarded,  and  the  statute  is  satisfied,  if  the  terms  of  the  contract 
are  in  writing  and  the  names  of  the  contracting  parties  appear." 
The  object  of  the  original  act  was,  as  its  title  avows,  "the  prevention 
of  frauds  and  perjuries,"  by  substituting  for  the  loose  recollections  of 
memory  and  the  mutual  danger  of  misconception  of  parties  a  precise 
written  agreement,  or  at  least  a  distinct  written  memorandum  of  the 
contract.  Yet  it  so  happened  that,  as  well  in  respect  to  this  mat- 
ter of  signing  as  to  several  other  points,  such  as  the  note  being  made 
at  the  time  or  afterwards  ratified,  the  requiring  the  names  of  all 
the  parties  or  only  that  of  the  party  charged  in  the  suit,  the  literal 
interpretation  of  the  statute,  and  probably  its  real  original  intention, 
came  into  perpetual  collision  with  the  actual  habits  and  usages  of  life, 
so  that  during  two  centuries  of  doubtful  litigation  the  courts  have 
been  led  to  strive  to  give  the  statutory  words  the  largest  and  most 
convenient  construction  they  could  possibly  bear.  Thus,  at  the  expense 
of  millions  during  two  hundred  years  of  litigation,  an  artificial  and 
technical  meaning  had  been  framed  in  England,  which  was  received 
and  embodied  in  our  own  law.  Probably  the  necessity  of  the  case, 
the  real  inconvenience  of  a  more  natural  interpretation,  combined  with 
the  difficulty  of  legal  reform  in  those  days,  may  have  been  a  sufficient 
cause,  or  at  least  a  fair  excuse,  for  latitudinarian  exposition  in  the 
courts.  These  seem  to  be  the  true  reasons  why  the  meaning  of  a  short 
statute  drawn  by  Chief  Justice  Hale,  a  man  eminent  alike  for  legal  accu- 
racy and  various  scholarship,  has  required  volumes  of  judicial  commen- 
tary. In  our  form  of  government  and  state  of  society,  the  simpler  and 
wiser  mode  of  reconciling  the  conflict  of  positive  law  with  the  habits 
and  convenielices  of  trade  and  life  is  to  receive  the  words  of  every 
statute  in  the  usual  and  customary  acceptation,  unless  they  have  already 
acquired  some  other  fixed  technical  meaning,  and  to  resort  to  correct- 
ive legislation  as  the  true  remedy  for  any  evil  or  inconvenience  thus 
resulting  from  a  fair  interpretation  of  the  law.  I  am  always  desirous 
to  apply  the  same  principle  to  the  construction  of  our  Revised  Statutes. 
Mere  changes  of  phrase  or  remoulding  of  sentences  must  be  far  from 
authorizing  us  to  sf  t  aside  any  less  obvious  meaning  which  has  been 
fixed  and  settled  by  long  and  constant  adjudication.  In  such  instances, 
phrases  and  sentences  re-enacted  with  slight  alteration  are  manifestly 


SECT.    VI.]  DAVIS    V.    SHIELDS.  567 

employed  in  their  strict  legal  sense,  as  much  so  as  single  technical 
words ;  for  there  may  be  a  technical  meaning  in  a  sentence  or  phrase 
differing  from  the  usual  and  popular  one,  as  well  as  in  single  words. 
When  such  interpretations,  however  artificial  at  first,  have  been 
wrought  by  long  usage  into  the  body  of  the  law  and  the  habits  of  those 
who  are  to  be  governed  by  it,  the  harsh  return  to  a  more  ))oj»ular  sig- 
nification would  be  in  clear  contradiction  to  the  legislative  will,  and 
by  unsettling  the  law  would  open  the  door  to  tlie  admission  of  the  very 
uncertainty  and  litigation  it  would  seek  to  exclude.  Nevertheless  it  is 
equally  evident  that  it  Avas  tl\e  design  of  our  revision  to  improve  the 
substance  of  our  enactments,  as  well  as  to  give  greater  simplicity  and 
perspicuity  to  their  language.  In  such  alterations,  where  no  arbitrary 
or  technical  signification  has  been  incorporated  into  the  language  of 
the  law,  we  should  look  to  the  usual  sense  without  resorting  to  the 
analogy  of  old  decisions  to  engraft  again  a  simihir  artificial  sense  upon 
new  Avords.  The  doctrine  which  Lord  Elleuborough  has  strongly  and 
wisely  stated  as  his  own  governing  rule  of  statutory  interpretation,  and 
which  he  did  not  hesitate  to  apply  to  the  English  Statute  of  Frauds 
itself  after  so  many  years  of  forced  constructions,  applies  with  still 
greater  reason  to  our  own  revised  code :  "  In  all  cases  where  the 
words  of  a  statute  have  not  bv  long  habitiial  construction  received  a 
peculiar  meaning,  such  as  they  Avill  alloAV  of"  I  am  always  inclined  to 
giA^e  them  their  natural  ordinary  signification."  Wain  v.  Warlters,  5 
East,  R.  10. 

How  then  stands  the  case  as  to  change  of  language  in  the  section 
now  under  consideration  ?  Does  or  does  not  the  change  of  phra- 
seology evidently  purport  the  intent  to  change  the  law  ?  What  is  the 
signification  of  the  Avords  used  in  the  revised  act,  and  how  do  they 
differ  from  the  language  of  the  former  acts  ?  Our  former  acts,  like 
the  English  Statute  of  Frauds,  required  "  some  note  or  memorandum 
in  writing  to  be  made  and  signed  by  the  parties  or  their  agents  law- 
fully authorized."  1  R.  L.  79.  The  verb  "to  sign"  in  its  primary, 
denA'ative,  and  ancient  sense  signifies  "  to  shew  or  declare  assent  or 
attestation  by  some  sign  or  mark."  Thence  it  early  passed  to  mean 
the  sheAving  or  declaring  such  assent  or  attestation  by  the  customary 
mark  of  the  Avritten  name.  In  ordinary  as  well  as  in  legal  use  it  is 
now  understood  to  mean  "  to  Avrite  the  name  in  any  such  way  as  Avill 
indicate  that  the  Avriting  Avith  AA'hich  it  is  connected  expresses  the 
assertion,  the  promise,  or  the  act  of  the  signer,  according  lo  the  nature 
of  the  Avriting."  It  may  be  at  the  end  or  elsewhere,  as  in  the  margin 
in  the  official  acts  of  some  public  officers,  and  sometimes  in  the 
attestation  of  witnesses.  Thus  one  of  those  ancient  decisions  on  the 
meaning  of  the  Avord  in  the  Statute  of  Wills,  which  led  on  to  much 
bolder  inter}»retation,  says  very  justly,  in  the  quaint  langunge  of  those 
days,  that  the  writing  of  the  name  on  the  same  paper  would  answer, 


568  DAVIS   V.    SHIELDS.  [CHAP.   I. 

"  serviroit  per  tout,  et  n'est  material  si  soit  signe  en  le  top  ou  bottom, 
car  le  statut  ne  dit  subscribed  me  signed."  Hilton  v.  King,  3  Lev.  R. 
86.  But,  as  already  stated,  a  far  greater  latitude  has  been  since  given 
judicially  to  this  word,  until  any  mention  of  the  name  was  held  to  be 
a  signature,  as  in  cases  like  that  of  Knight  v.  Crockford,  1  Esp.  Cases, 
190,  where,  said  Lord  Eldon,  commenting  upon  it,  "  it  is  impossible 
not  to  see  that  the  insertion  of  the  name  at  the  beginning  of  the  paper 
was  not  intended  to  be  a  signature,  and  that  the  paper  was  meant  to 
be  incomplete  until  it  was  further  signed."  Saunderson  v.  Jackson, 
3  Bos.  &  Pul.  R.  239.  Thus  the  word  "  signing  "  in  the  statute  book 
came  to  bear  an  authoritative  meaning  in  certain  connections  beyond 
its  usual  legal  sense,  and  to  include  any  mention  of  the  name  if  made 
by  the  party  himself  or  with  his  assent  express  or  implied,  and  in  con- 
nection with  the  terms  of  the  agreement.  Now,  it  would  seem  that 
the  deliberate  omission  of  a  word  that  had  thus  acquired  a  remarkable 
and  peculiar  extension  by  express  adjudication,  and  the  substitution  of 
another  word,  even  one  synonymous  in  common  use  but  which  had 
never  gained  a  secondary  technical  sense,  would  strongly  indicate  the 
legislative  intent  to  modify  the  substance  of  the  statute.  But  the 
substituted  word  is  "  subscribed."  This  literally  and  according  to  its 
derivation  means  "  to  write  beneath,"  but  in  habitual  use  it  denotes 
the  writing  the  name  at  the  end  of  any  writing  in  token  of  assent  or 
attestation,  according  to  the  import  of  the  writing  itself.  It  has  a 
secondary  meaning,  but  that  is  purely  metaphorical,  denoting  the 
consent,  assent,  or  promise  thus  conveyed,  without  reference  to  the 
external  mode  of  expressing  it,  as  "  I  subscribe  to  Ricardo's  doctrine 
of  rent."  This  Judge  Cowen  intimates  may  be  the  sense  in  which  our 
statute  employs  the  word.  But  this  secondary  sense  is  excluded 
when  actual  writing  is  spoken  of;  and  besides  holds  only  when  the 
word  is  used  as  a  neuter  or  intransitive  verb,  accompanied  by  the  pre- 
position to.  This  distinction  may  be  observed  alike  in  colloquial  use 
and  in  correct  style.  Thus,  "  I  subscribe  to  the  New  York  Review," 
means  a  promise  to  receive  and  pay  for  the  Review ;  but  used  transi- 
tively the  meaning  is  of  literal  subscription,  as  "  I  subscribed  the 
proposals  for  the  New  York  Review."  So  the  clergyman  of 
the  Anglican  Church  subscribes  the  thirty-nine  articles.  This  has 
the  literal  meaning  of  manual  subscription,  denoting  at  the  same  time 
mental  assent.  But  if  it  be  meant  merely  to  say  that  the  theologian 
assents  to  these  doctrines,  it  would  be  said  that  "  he  subscribed  to  the 
articles."  So  also  in  the  grave  and  noble  style  of  Hooker,  in  the 
passage  cited  by  Johnson  to  illustrate  this  use :  "  The  Nicene  Creed 
was  framed  for  the  world  to  subscribe  unto."  But  another  great 
master  of  English  idiom,  when  speaking  of  a  literal  and  manual  sub- 
scription, says :  "  They  united  by  subscribing  a  covenant,  which  they 
pretended  to  be  no  other   than    had    been    subscribed   in  the  reign 


i 


SECT.    VI.]  DAVIS   V.    SHIELDS.  569 

of  King  James,  and  that  his  Majesty  had  himself  subscribed  it." 
Clarendon's  History.  Thus  then,  alike  in  colloquial  use  and  in  that 
of  good  writers,  the  words  "  note  of  the  agreement  in  writing,  sub- 
scribed by  the  parties,"  would  mean  a  note  of  the  agreement  with  the 
names  of  the  parties  signed  below  or  at  the  end  so  as  to  denote  assent 
thereto.  Thus,  taking  the  usual  sense  of  the  words  in  their  literary  or 
their  colloquial  use,  the  Legislature  must  appear  to  have  intentionally 
substituted  a  word  of  known  and  limited  meaning  to  the  word  "  sign," 
having  a  wider  primitive  sense,  as  well  as  a  very  broad  technical  signi- 
fication unknown  to  familiar  usage. 

Let  us  next  look  at  the  legal  authority  indicating  the  technical 
meaning  of  these  two  words.  Have  the  decided  cases  giving  a  legal 
and  professional  sense  to  the  word  "  sign  "  comprehended  either 
directly  or  indirectly  the  analogous  but  not  synonymous  word  "  sub- 
scribe "  ?  A  brief  examination  of  the  legal  use  of  these  two  words 
will  convince  us  that  this  is  not  the  case.  In  the  earliest  adjudica- 
tions of  the  statutory  sense  of  the  word  "  sign,"  it  was  expressly  distin- 
guished between  these  two  words ;  and  the  decision  of  the  court  sup- 
porting a  mention  of  the  name  in  the  beginning  of  the  instrument  as 
a  good  signing  was  founded  on  the  reason  that  "  the  statute  does  not 
say  subscribed,  but  sign."  Hilton  v.  King,  3  Lev.  R,  86  ;  Lemayne 
V.  Stanley,  8  Lev.  1.  I  cite  these  ancient  decisions  because  they  have 
been  kept  alive  by  constant  reference  as  the  Ibundation  of  modern 
decisions.  The  same  distinction  between  the  two  words  in  question 
has  been  made  by  later  English  judges,  among  them  by  Lord  Chan- 
cellor Hardwicke,'if  I  recollect  rightly.  It  is  also  to  be  found  in  the 
most  approved  text-books  on  this  head  of  the  law,  as  in  Roberts  on 
Frauds,  119.  The  same  distinction  is  quite  familiar  in  the  reports 
of  our  own  courts.  In  Merritt  v.  Clason,  12  J.  R.  102,  this  point  was 
immediately  under  consideration ;  and  the  eminent  counsel  by  whom 
the  case  was  argued  insist  on  the  one  side  on  the  plain  distinction 
between  signing  and  subscribing,  and  admit  it  on  the  other.  "  Signing 
does  not  ex  vi  termini  mean  that  the  name  of  the  party  should  be 
subscribed,"  said  the  late  John  Wells,  a  speaker  and  writer  remarkable 
for  his  precision  in  the  use  of  language.  On  the  other  side, 
D,  B.  Ogden  thus  replies :  "  I  do  not  say  that  the  agreement  must  be 
subscribed,  but  that  it  must  be  signed  in  some  part  of  the  con- 
tract." The  point  decided  is  thus  stated  by  the  learned  and  accurate 
reporter  of  that  day,  Mr.  Johnson,  in  the  marginal  note  of  the  case : 
"  A  memorandum  of  a  contract  for  the  purchase  of  goods  written  by 
a  broker  in  his  book  in  the  presence  of  the  vendor,  and  the  terms 
of  the  purchase  being  in  the  body  of  the  memorandum,  but  not 
subscribed  by  the  parties,  is  a  sufficient  memorandum  within  the 
statute."  14  J.  R.  484.  The  language  of  eminent  counsel  and  a  dis- 
tinguished  reporter   is   cited,   not   as   legal   authority,  but   as   iiidis- 


670  DAVIS    V.    SHIELDS.  [CHAP.    I. 

putable  evidence  of  the  usage  of  words,  professionally  and  technically, 
a  very  few  years  before  our  revision  of  the  statutes.  Thus  we  have 
ample  evidence  of  the  legal  distiijction,  as  familiar  to  the  use  of 
judges  and  lawyers  as  to  the  general  understanding,  between  the 
operative  word  of  the  old  statutes  and  that  selected  in  its  place  in  the 
late  revision. 

Finally,  our  learned  Revisers,  in  their  reports  to  the  Legislature  upon 
this  and  the  analogous  point  of  contracts  for  the  sale  of  lands,  &c., 
observe  that  "it  had  been  held  that  under  the  former  statute  the 
literal  act  of  signing  was  not  necessary.  After  setting  out  with  that 
principle,  the  courts  found  themselves  perfectly  at  large  as  to  what 
should  be  considered  as  signing.  To  prevent  difficulties,  the  Revisers 
recommend  that  those  agreements  should  be  suhscrihedr  With 
such  a  constant  and  familiar  distinction  as  to  the  meaning  of  the 
words  in  question,  the  Revisers  recommended  a  re-enactment  of  the 
Statute  of  Frauds  as  to  agreements  for  the  sale  of  chattels,  &c.,  with 
some  modifications,  such  as  that  "  the  agreement  should  be  reduced 
to  writing  at  the  time  it  was  made,  and  be  subscribed  by  the  party  by 
whom  it  is  to  be  performed,  and  by  all  the  parties  when  such  agree- 
ment contains  provisions  to  be  performed  by  each  of  them."  These 
proposed  innovations  were  all  in  opposition  to  the  judicial  con- 
structions of  the  old  law.  The  Legislature  adopted  the  alteration  of 
"subscribing"  for  "signing,"  and  rejected  the  rest.  Thus,  to  my  mind, 
the  chain  of  evidence  is  complete  as  to  the  meaning  of  these  words, 
and  the  obvious  intent  of  the  substitution  of  one  word  for  the  other.  If 
this  conclusion  needs  the  support  of  farther  argument  from  the  history 
and  policy'  of  the  law,  that  may  bo  found  in  abundance. 

The  avowed  design  of  all  the  legislative  enactments  on  this  head 
from  the  original  statute  of  29  Charles  II.  down  to  our  own  dav  was, 
"  the  prevention  of  frauds  and  perjuries "  by  refusing  the  aid  of  the 
law  to  enforce  any  contract  not  supported  by  written  evidence,  or 
which  needed  parol  evidence  to  support  it.  Years  of  litigious  war- 
fare, thousands  of  suits,  and  page  after  page  of  the  reports  had  proved 
that  a  mere  agent's  memorandum  was  not  sufficient  to  exclude  differ- 
ences of  understanding  between  the  parties,  contradictory  testimony 
at  the  trial,  and  grave  doubts  on  the  bench.  Questions  would  still 
arise  as  to  the  agent's  authority  to  make  the  bargain  and  his  accuracy 
in  noting  it  down.  Was  it  not  then  to  be  expected  that  the  Legisla- 
ture in  a  formal  and  deliberate  revision,  aided  by  professional  and  offi- 
cial advisers,  should  endeavor  to  remedy  some  of  the  defects  that  had 
frustrated  the  good  designs  of  former  legislators  ?  One  mode  at  least 
of  attaining  this  end  would  be  the  requiring  an  actual  subscription  to 
the  agreement  or  to  the  statement  ol  its  substance  either  by  the  par- 
ties themselves  or  their  legal  representatives,  so  as  to  prove  this  to  be 
a  ratified  bargain,  and  not  a  note  of  some  imperfect  negotiation. 


SECT.    VI.]  DAVIS   V.    SHIELDS.  571 

When  subscribed  by  the  parties  themselves,  that  memorandum  would 
become  the  contract  itself,  and  so  put  an  end  to  all  questions  about 
prior  negotiations.  When  signed  by  an  agent,  there  would  be  formality 
enough  to  direct  his  attention  to  the  matter  and  induce  him  to  be  sure 
that  he  had  authority  to  sign  in  the  iiarae  of  his  ]»rincipal  the  agree- 
ment on  which  the  contracting  parties  met.  -Additional  words  or  con- 
ditions varying  the  bargain  would  be  excluded  li-om  any  after  insertion 
by  what  the  plaintiffs'  counsel  has  happily  termed  "  the  closing  com- 
pleteness of  the  act  of  subscription."  Adding  then  these  manifest 
considerations  of  public  utility  to  the  cumulative  evidence  of  the  his- 
tory of  the  law  and  the  meaning  of  the  words  successively  employed, 
either  in  their  popular,  their  literary,  or  their  legal  signification,  I  can- 
not doubt  at  all  that  the  subscription  required  by  the  statute  is  no 
longer  satisfied  by  the  bare  mention  of  the  name  in  the  body  of  the 
memorandum,  but  must  be  such  a  subscription  as  clearly  denotes  a 
deliberate  assent  to  the  settled  terms  of  a  contract.  The  agreement 
for  the  sale  of  the  iron  between  the  parties  is  therefore  void  for  want 
of  the  evidence  expressly  demanded  by  the  policy  of  the  law. 

This  conclusion  may  appear  to  many  of  my  colleagues,  as  I  confess 
that  it  does  to  myself,  too  obvious  to  require  the  details  of  argument 
and  authority  that  I  have  presented.  But  it  is  a  conclusion  in  opposi- 
tion to  that  of  able  and  learned  judges ;  and  the  importance  of  the 
rule  to  be  now  settled,  operating  daily  and  hourly  upon  immense 
transactions,  will  excuse  and  even  justify  the  details  into  which  I  have 
entered. 

II.  In  a  court  composed  of  few  members,  where  the  opinions  of  all 
may  be  brought  to  bear  upon  a  single  point,  I  should  have  preferred 
to  rest  the  decision  of  this  cause  here  without  caring  to  examine  any 
other  point  which  has  been  raised.  But  should  there  be  much  differ- 
ence of  opinion  on  the  point  just  considered,  it  may  be  of  importance 
to  the  decision  of  the  cause  to  notice  another  aspect  of  the  case,  in  ray 
judgment  equally  conclusive  against  the  affirmance  of  the  judgment. 
It  besides  ]M-esents  a  question  which  may  often  arise  under  any  under- 
standing of  the  statute  as  to  the  required  subscription  upon  contracts 
of  sale  signed  in  the  most  formal  manner  by  agents  or  persons 
assuming:  to  act  as  such. 

Allowing  then  the  broker's  memorandum  in  his  book  to  contain  a 
valid  subscription  in  its  form,  do  the  facts  shew  a  mutual  and  binding 
contract  entered  into  and  signed  by  authority  of  the  parties  proj^osed 
to  be  charged  as  vendors  ?  A  doubt  naturally  arises  whether,  under 
our  revised  statute,  the  words  "  to  be  subscribed  by  the  parties  to  be 
charged "  do  not  require  that  the  agreement  should  be  from  the  first 
binding  by  means  of  an  authorized  signing  upon  all  the  parties  to  the 
bargain.  If  this  could  be  considered  as  an  entirely  open  question,  I 
should  adhere  to  the  opinion  of  Lord  Chancellor  liedesdale,  that  "  a 


572  DAVIS   V.    SHIELDS.  [CHAP.    I. 

contract  to  be  binding  ought  to  be  mutual  in  its  obligation"  (Law- 
renson  y.  Butler,  1  Schoales  &  Lefroy  R.  13)  ;  so  that  if  one  party- 
could  not  enforce  the  agi-eement,  the  other  could  not.  But  our  revision 
has  here  retained  the  very  words  repeatedly  adjudicated  upon,  and  the 
legal  sense  of  which  had  been  expressly  settled  a  few  years  ago  in  this 
court.  Clason  v.  Merritt,  14  Johns.  R.  485.  This  was  in  conformity 
with  numerous  prior  decisions  as  is  shewn  in  the  opinion  of  Chancellor 
Kent  in  that  case.  An  alteration  of  the  statutory  language  had  been 
recommended  by  the  Revisers,  so  as  to  make  it  conform  with  the  opinion 
of  Lord  Redesdale,  and  to  exclude  the  old  construction,  which  they 
said  "  many  of  the  ablest  judges  in  England  and  this  country  had 
regretted."  Revisers'  Notes,  3  R.  S.  656.  The  Legislature  rejected 
that  alteration,  and  adhered  to  the  old  words.  Here  then  it  seems  to 
me  these  words  must  be  taken  in  their  fixed  and  adjudicated  sense, 
according  to  which  it  is  enough  that  the  agreement  be  signed  or  be 
authorized  to  be  signed  by  the  party  to  be  charged  in  the  suit.  Nor 
is  this  interpretation  without  the  support  of  reasons  of  equity,  inde- 
pendently of  authority.  It  is  within  the  literal  sense  of  the  words 
used.  The  original  contract  is  morally  binding  on  both  sides,  and  the 
promises  to  buy  and  sell  are  mutual  considerations  for  each  other. 
The  statute  then  requires  written  evidence  of  the  bargain.  One  party 
gives  this,  and  it  is  his  own  neglect  that  alone  prevents  him  from 
obtaining  the  same  evidence  from  the  other.  But  he  ought  not  to  take 
advantage  of  his  own  negligence,  nor  should  that  free  him  from  the 
legal  effect  of  his  own  promise  duly  evidenced  in  writing  according  to 
law.  When  therefore  the  other  party  makes  his  legal  claim,  his  decla- 
ration and  claim  furnishes  the  required  note  or  memorandum,  and  the 
statutory  requisition  is  complete.  I  adhere  then  to  the  old  adjudicated 
meaning  of  the  words  retained  from  the  original  statute,  and  consider 
it  sufiicient  if  the  memorandum  was  authorized  by  the  vendors  who 
are  now  to  be  charged,  although  it  might  not  have  been  originally 
binding  upon  the  vendee. 

But  another  question  then  arises,  Does  the  e\adence  shdw  that  the 
contract  sought  to  be  enforced  was  duly  made  by  an  authorized  agent 
and  reduced  to  writing  by  him?  A  bargain  for  the  sale  and  purchase 
of  the  iron  is  made  through  a  broker  upon  certain  terms  offered  by  the 
vendors,  with  the  addition  of  two  other  conditions  demanded  by 
the  vendee  and  agreed  to.  One  of  these  conditions,  "  provided  that  the 
ii-on  should  arrive  in  reasonable  time,"  might  according  to  circum- 
stances prove  beneficial  to  either  party..  The  risk  of  being  obliged  to 
take  the  iron  at  any  time,  however  distant,  was  one  that  the  buyer  did 
not  wish  to  take ;  and  this  condition  was  primarily  for  his  protection, 
but  it  might  also  be  thought  advantageous  by  the  sellers  who  accepted 
it ;  and  so  it  was  in  fact  rendered  by  subsequent  contingencies.  The 
sale  was  also  on  a  six  months'  credit,  which  was  evidently  for  the 


SECT.    VI.]  DAVIS   V.    SHIELDS.  573 

buyer's  convenience.     The  agreement  on  such  terms  was  known  to 
both  parties  and  had  their  assent.     For  the  purposes  of  the  bargain  so 
far  the  broker  was  the  mutual  agent  of  both.     But  he  was  not  there- 
fore the  agent  of  both  or  of  either  to  make  the  note  or  memorandum, 
unless  so  far  as  he  had  their  assent.     No  parties  are  bound  by  a  broker 
who  exceeds  his  authority.     Here  he  makes  an  entry  of  the  agreement, 
omittinof  the  terms  of  credit  and  of  arrival  in  some  reasonable  time. 
Had  this  been  signed  by  the  vendors,  it  would  as  to  them  have  formed 
the  contract  itself,  in  which  all  prior  negotiations  would  have  been 
merged.     But  neither  party  in  person  signs  the  agreement,  and  though 
the  vendors  consent  to  the  real  contract  there  was  not  a  jot  of  evi- 
dence that  they  ever  saw  or  knew  of  the  agreement  as  entered  in  the 
sale-book.     For  the  purpose  of  entering  such  a  different  contract,  the 
broker  does  not  appear  to  be  an  authorized  agent  either  from  his  gen- 
eral powers  or  j5'om  any  after  assent.     He  was  an  agent  to  make  a  bar- 
gain and  communicate  the  terms :  as  such  he  was  empowered  to  make 
a  memorandum  of  the  bargain  thus  made ;  but  he  was  not  authorized 
to  alter  that  agreement  or  to  make  an  entry  of  another  and  different 
contract.     Supposing  in  this  case  that  instead  of  omitting  two  condi- 
tions, one  important  to  the  buyer,  the  other,  as  the  event  proved,  bene- 
ficial to  the  seller,  he  had  made  a  note  of  a  sale  of  500  tons  instead  of 
fifty :    Avould  his  authority  to  sell  and  preserve  the  evidence  of  an 
agreement  for  the  sale  of  fifty  tons  enable  him  to  bind  his  principal  to 
the  larger  contract?     Or  would  any  subsequent  ratification   by  the 
vendee  alone  make  such  a  contract  binding  upon  the  other  party? 
The  agreement  to  sell  on  certain  terms  was  vaUd  in  itself;  but  it  must 
be  reduced  to  writing,  or  it  is  void  by  the  statute.     No  note  of  that 
bargain  as  actually  agreed  upon  is  made ;  but  there  is  an  entry  of  a 
contract  varying  in  its  terms  from  that,  and  not  shewn  to  the  parties 
or  assented  to  by  them.     If  it  be  now  ratified  by  the  buyer,  it  is  bind- 
ing upon  him,  if  the  sellers  judge  proper  to  enforce  it;  but  how  is  it 
binding  upon  the  sellei'S  who  have  never  so  assented  and  who  now 
reject  the  terms  ?     This  case  then  falls  within  the  principle  laid  down 
by  Chief  Justice  Abbott  in  Grant  v.  Fletcher,  5  Barn.  &  Ores.  436.    "  A 
broker  may  bind  both  parties  by  signing  the  same  contract  on  behalf 
of  both  parties.     But  if  he  does  not  sign  the  same  contract  for  both, 
neither  will  be  bound."     It  has  therefore  often  been  decided  that,  when 
a  broker  delivers  a  different  note  of  the  contract  to  each  party,  there  is 
no  mutual  contract.     Here  the  note  differs  from  the  real  conti-act,  and 
if  it  be  afterwards  ratified  or  adopted  by  one  party,  then  there  is  a  dif- 
ferent contract  as  to  the  two.     The  case  resembles  that  of  Hinde  v. 
Whitehouse,  7  East,  568,  where  Lord  Ellenborough  said :  "  In  treating 
this  as  the  memorandum  of  the  actual  sale  we  must  intend,  contrai-y  to 
the  fact,  that  the  goods  were  sold  for  ready  money  and  the  sale  unat- 
tended by  tlie  circumstances  mentioned  in  the  conditions  of  sale."     In 


574  DAVIS   V.    SHIELDS.  [CHAP.    I. 

short,  the  agreement  of  sale  when  made  and  reduced  to  writing  cannot 
be  explained  away  or  contradicted  by  parol  proof.  But  if  the  writing 
or  signing  be  by  an  agent  or  broker,  then  parol  or  other  evidence  is 
not  only  admissible,  but  necessary,  to  shew  that  he  is  authorized  to  sign 
just  such  a  contract.  The  evidence  hei-e  negatives  that  authority ;  and 
whatever  may  have  been  the  intention  of  the  parties,  or  however  much 
or  little  the  stipiilation  of  the  arrival  of  the  iron  within  a  reasonable 
time  seemed  essential  to  the  bargain  in  the  minds  of  the  vendors, 
there  is  still  no  actual  agreement  for  the  sale  of  goods  concluded  by 
the  parties  of  which  a  note  or  memorandum  in  writing  has  been  made. 

I  must  add  a  single  remark  as  to  the  policy  of  the  law.  I  do  not  see 
how  we  can  sustain  this  entry  as  a  binding  note  of  the  sale  upon  any 
presumed  equity  of  this  particular  case  without  giving  a  very  dangerous 
extension  to  the  implied  authority  of  brokers  or  other  agents  for  sales. 
To  constitute  the  simple  fact  of  being  authorized  to  make  a  bargain  as 
the  conclusive  or  even  the  presumptive  evidence  of  being  also  author- 
ized to  sign  any  memorandum  of  the  bargain,  however  variant  from  the 
real  one,  and  then  to  substitute  that  memorandum  for  the  contract 
itself  at  the  pleasure  of  either  party,  would  jilace  all  principals  at  the 
mercy  of  the  fraud,  the  mistake,  or  the  carelessness  of  brokers  or  agents, 
whether  selected  by  themselves  or  by  the  persons  with  whom  they 
may  happen  to  contract. 

The  judgments  of  the  courts  below  should  be  reversed  on  both  or 
either  of  the  grounds  above  stated. 

Senator  Paige  expressed  the  opinion  that  by  the  substitution  of  the 
word  "  subscribed  "  for  the  word  "  signed,"  used  in  the  old  Statute  of 
Frauds,  the  Legislature  did  not  intend  to  change  the  law.  This  he 
thou2;ht  was  manifest  from  the  consideration  that  in  the  Statute  of 
Wills  the  two  words  were  used  as  synonymous:  the  40th  section 
requires  the  will  to  be  subscribed  by  the  testator,  and  the  next  sec- 
tion speaks  of  the  testator's  nam^e  being  signed  by  a  third  person  under 
his  direction.  2  K..  S.  7,  §§  40,  41.  The  word  "signed"  as  used  in 
the  Statute  of  Frauds,  he  said,  had  received  a  fixed  judicial  construc- 
tion, which  he  thought  should  be  applied  to  the  word  "  subscribed." 
He  therefore  considered  the  memorandum  of  the  broker  sufficient,  and 
should  vote  for  an  affirmance  of  the  judgment. 

On  the  question  being  put.  Shall  this  judgment  be  reversed?  all  the 
members  of  the  court  present  at  the  hearing  of  the  argument,  except 
Senator  Paige,  voted  in  the  affirmative  :  he  voted  in  the  negative. 

Whereupon  the  judgment  of  the  Supreme  Court  was  reversed.^ 
•  Approved  and  followed  in  James  v.  Patten,  2  Seld.  9.  —  Ed. 


SECT.    VI.]  CUMMINGS    V.    ARNOLD.  575 


GEORGE   CUMMINGS  and  Others  v.   SMITH   ARNOLD   and 

Another. 

Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1842. 

[Reported  in  3  Metcalf,  486.] 

Assumpsit  on  the  following  agreement:  "October  26th,  1838.  This 
is  to  shew  that  I  agi-ee  to  furnish  and  deliver  to  Cuinmings,  Hildreth, 
&  Co.,  of  Boston,  all  the  printing  cloths  which  I  make  in  my  looms, 
which  are  on  35-inch  cloths,  and  which  make  15U  pieces  of  cloth  per 
week ;  the  quality  to  be  the  same  as  those  sold  by  H.  Power  to  Cum- 
mings,  Hildreth,  &  Co.,  on  my  account ;  the  warp  being  64  picks  to 
the  inch,  the  filling  60  picks  or  threads  to  the  inch.  These  goods, 
to  the  amount  of  150  pieces  per  week,  I  agree  to  deliver  to  Cummings, 
Hildreth,  &  Co.,  in  Boston,  up  to  March  1st,  1839,  at  eight  and  one- 
quarter  cents,  say  8^  yd.,  on  eight  months'  credit.  Smith  Arnold  & 
Co."  The  declaration  averred  that  the  plaintiffs  had  always  been 
ready  and  desirous  to  receive  and  pay  for  said  goods  according  to  the 
terms  of  said  agreement,  yet  that  the  defendants  had  not  delivered 
and  furnished  the  same. 

The  defendants  filed  the  following  specifications  of  defence :  — 
"1.  That  it  was  agreed  [by  parol]  between  the  plaintiffs  and  defend- 
ants at  the  time  when  the  above  contract  was  entered  into,  and  after 
its  execution  and  delivery,  that  the  plaintiffs  should  give  in  payment 
for  the  goods  satisfactory  promissory  notes,  such  as  would  be  discounted 
at  the  bank  where  the  defendants  did  business  ;  which  notes  were  not 
given  as  agreed,  but  were  refused.  2.  That  after  the  making  of  the 
above  agreement,  a  proposition  was  made  by  the  plaintiffs  to  pay  cash 
for  the  goods  at  five  per  cent,  discount :  that  AiTiold  one  of  the  de- 
fendants, to  whom  this  proposition  was  made,  then  being  in  Boston, 
told  the  plaintiffs  he  thought  the  defendants  should  accept  the  offer, 
but  wished  to  consult  with  his  partner;  for  which  purpose  time  was 
allowed  him ;  that  he  went  home  and  consulted  his  partner,  and  wrote 
immediately  to  the  plaintiffs  that  they  (the  defendants)  should  accept 
the  proposition ;  but  that  the  plaintifls  afterwards  refused  to  adhere 
to  the  bargain,  as  it  was  not  closed  at  the  time  the  proposition  was 
made." 

At  tlie  trial  before  Putnam,  J.,  the  defendants  offered  to  prove  the 
oral  agreements  mentioned  in  their  specification,  and  that  they  were 
made  on  a  legal  and  valid  consideration.  But  the  judge  refused  to 
admit  the  prootj  and  a  verdict  was  returned  for  the  plaintiffs.  The 
defendants  moved  for  a  new  trial. 

This  case  was  argued  at  the  last  March  term. 


576  CUMMINGS   V.    ARNOLD.  [CHAP.    I. 

£.  /Summer,  for  the  defendants.  As  it  does  not  appear  that  the 
cloths  were  in  existence  when  the  original  written  agreement  was  made, 
that  agreement  was  not  required  by  the  Statute  of  Frauds  to  be  in 
writing.  Clayton  v.  Andrews,  4  Burr.  2101 ;  Towers  v.  Osborne,  1 
Stra.  506  ;  Groves  v.  Buck,  3  M.  &  S.  178  ;  Cooper  v.  Elston,  7  T.  R. 
14;  Rondeau  v.  Wyatt,  2  H.  Bl.  63;  Sewall  v.  Fitch,  8  Cow.  215 ;  Ben- 
nett V.  Hull,  10  Johns.  364;  Crookshank  v.  Burrell,  18  Johns.  58; 
Jackson  v.  Covert,  5  Wend.  139 ;  Mixer  v.  Howarth,  21  Pick.  205 ; 
Spencer  v.  Cone,  1  Met.  283. 

The  original  agreement  not  being  within  the  Statute  of  Frauds,  the 
evidence  of  the  subsequent  oral  agreement  should  have  been  received. 
Whenever  a  new  agreement  is  made,  however  soon  after  the  first,  — 
even  though  the  parties  have  not  separated,  —  such  new  agreement  is  a 
waiver  or  alteration  of  the  first,  and  binds  the  parties.  3  Phil.  Ev.  (4th 
Am.  ed.)  1461,  1462,  1477,  1478,  and  cases  there  cited;  6  Ves.  337, 
note ;  Cufi  v.  Penn,  1  M.  &  S.  21 ;  Keating  v.  Price,  1  Johns.  Cas.  22  ; 
Fleming  v.  Gilbert,  3  Johns.  528 ;  M'Meen  v.  Owen,  1  Yeates,  135  ; 
Watkins  v.  Hodges,  6  Har.  &  J.  38. 

Codma7i,  for  the  plaintiifs.  The  evidence  of  the  oral  agreement 
was  propei'ly  rejected,  as  it  was  ofiered  to  vary  a  contemporaneous 
written  agreement.  Vattel,  Book  II.,  c.  17,  §§  265,  266;  3  Phil.  Ev. 
(4th  Am.  ed.)  1466,  1467,  note.  A  contract  which  is  within  the  Stat- 
ute of  Frauds  cannot  be  varied  by  parol  if  the  new  contract  be  one 
which  is  also  within  the  statute.  3  Stark.  Ev.  1048, 1050;  1  Phil.  Ev. 
(4th  Am.  ed.)  559,  561,  562 ;  Goss  v.  Lord  Nugent,  5  Barn.  &  Adolph. 
58 ;  Chit.  Con.  (5th  Am.  ed.)  110,  113,  777  ;  Marshall  v.  Lynn,  6  Mees. 
&  Welsh.  109  ;  Harvey  v.  Grabham,  5  Adolph.  &  Ellis,  73,  74;  Stowell 
V.  Robinson,  3  Bing.  N".  R.  928 ;  s.  c.  5  Scott,  196. 

The  first  and  last  agreements  were  within  the  Statute  of  Frauds. 
Garbutt  v.  Watson,  5  Barn.  &  Aid.  613  ;  s.  c.  1  Dowl.  &  Ryl.  219. 
Where  goods  would  not  exist  in  a  manufactured  state  were  it  not  for 
an  order,  and  the  order  is  for  goods  to  be  sold,  the  case  is  within  the 
statute.  Smith  v.  Surman,  9  Barn.  &  Cress.  568  ;  Watts  v.  Friend,  10 
Barn.  &  Cress.  448 ;  Dole  v.  Stimpson,  21  Pick.  387. 

Wilde,  J.  This  case  comes  before  us  on  exceptions  to  the  rulings 
of  the  court  at  the  trial,  whereby  the  evidence  ofiered  by  the  defend- 
ants was  rejected  on  the  ground  that  the  facts  ofiered  to  be  proved 
would  not  constitute  a  legal  defence.  The  action  is  founded  on  a 
written  contract,  by  which  the  defendants  undertook  to  deliver  to  the 
plaintiffs  at  a  stipulated  price  a  certain  quantity  of  cloths  for  printing, 
from  time  to  time  between  the  26th  day  of  October,  1838,  and  the  fii'st 
of  March  following. 

The  defendants  admit  that  the  written  contract  was  not  performed 
by  them  according  to  the  terms  of  it ;  and  they  rely  on  two  oral  agree- 
ments made  subsequently  to  the  execution  of  the  written  contract,  by 


SECT.    VI.]  CUMMINGS   V.    ARNOLD.  677 

the  last  of  which  it  was  agreed  that  the  plaintiffs  should  pay  cash  for 
the  goods  to  be  sent  to  thena  by  the  defendants,  —  they  discounting  five 
per  cent,  on  the  stipulated  price  whenever  the  goods  sent  should  amount 
to  the  value  of  81000,  not  before  paid  for;  that  under  this  last  verbal 
agreement  the  defendants  delivered  150  pieces  of  goods,  and  that  the 
plaintiffs  refused  to  perform  said  agreement  on  their  part.  The 
defendants  also  offered  to  prove  that  each  of  these  verbal  agreements 
was  made  on  a  legal  and  good  consideration.  The  question  is,  whether 
these  facts,  if  proved,  would  constitute  a  legal  defence  to  the  action. 

The  general  rule  is  that  no  verbal  agreements  between  the  parties 
to  a  written  contract,  made  before  or  at  the  time  of  the  execution  of 
such  contract,  are  admissible  to  vary  its  terms  or  to  affect  its  construc- 
tion. All  sucli  verbal  agreements  are  considered  as  varied  by  and 
merged  in  the  written  contract.  But  this  rule  does  not  apply  to  a  sub- 
sequent oral  agreement  made  on  a  new  and  valuable  consideration 
before  the  breach  of  the  contract.  Such  a  subsequent  oral  agreement 
may  enlarge  the  time  of  peribrmance,  or  may  vary  any  other  terms  of 
the  contract,  or  may  waive  and  discharge  it  altogether. 

This  rule  is  laid  down  by  Lord  Denman  in  Goss  v.  Lord  Nugent,  5 
Barn.  &  Adolph.  65,  as  a  well  established  principle,  in  these  terms  : 
"  After  the  agreement  has  been  reduced  into  writing  it  is  competent  to 
the  parties  at  any  time  before  breach  of  it,  by  a  new  contract  not  in 
writing,  either  altogether  to  waive,  dissolve,  or  annul  the  former  agree- 
ment, or  in  any  manner  to  add  to,  or  subtract  from,  or  vary,  or  qualify 
the  terms  of  it,  and  thus  to  make  a  new  contract ;  which  is  to  be  proved 
partly  by  the  written  agreement,  and  partly  by  the  subsequent  verbal 
terms  engrafted  upon  what  will  be  thus  left  of  the  written  agree- 
ment." 

The  same  principle  substantially  is  maintained  by  numerous  cases 
both  in  England  and  in  this  country.  Milton  v.  Edgworth,  5  Bro.  P. 
C.  (2d.  ed.)  813;  Bui.  N.  P.  152;  1  Mod.  262;  2  Mod.  259;  12  Mod. 
538;  3  T.  K.  590;  1  East,  631;  12  East,  578;  1  Esp.  R.  54;  3  Stark. 
Ev.  1002;  Chit.  Con.  (5th  Am.  ed.)  108;  14  Johns.  330;  9  Cow.  115; 
1  Johns.  Cas.  22;  3  Johns.  Cas.  60;  3  Johns.  531;  12  Wend.  446;  13 
Wend.  71 ;  9  Pick.  298 ;  13  Pick.  446 ;  2  Watts,  456 ;  5  Cow.  497  ;  7 
Cow.  50;  3  Fairf.  441 ;  4  N.  Hamp.  40;  6  Ilalst.  174;  1  A.  K.  Marsh. 
582. 

In  Dow  V.  Tuttle,  4  Mass.  414,  it  was  decided  that,  where  the  promisee 
of  a  note  payable  at  a  day  certain  contracts  at  the  time  the  note  is 
given  not  to  demand  payment  of  it  until  a  certain  time  after  its 
maturity,  such  contract  is  a  collateral  promise,  for  the  breach  of  which, 
if  there  be  a  legal  consideration,  an  action  may  lie,  but  that  it  is  no  bar 
to  an  action  on  the  note  when  due  by  the  terms  of  it.  But  this  case 
was  decided  on  the  ground  that  the  agreement  offered  to  be  pioved  in 
the  defence  was  made  at  the  time  of  making  the  note,  and  was  repug- 
voL.  1.  j37 


578  CUMMINGS   V.   ARNOLD.  [CHAP.    I. 

nant  to  the  terms  of  it.     This  decision  therefore  is  not  inconsistent 
with  the  doctrine  maintained  in  the  cases  cited. 

But  the  plaintiffs'  counsel  contends  that,  however  the  general  prin- 
ciple may  be  as  to  the  effect  of  a  parol  agreement  on  a  previous  written 
contract,  it  is  not  applicable  to  the  present  case,  the  parol  agreement 
being  void  by  the  Statute  of  Frauds ;  and  that  to  allow  a  parol  agree- 
ment to  be  engrafted  upon  a  written  contract  would  let  in  all  the 
inconveniences  which  were  intended  to  be  obviated  by  the  statute.  In 
considering  this  objection  we  have  met  with  many  conflicting  decisions, 
but  for  which  we  should  have  had  but  little  difiiculty  in  disposing  of 
the  question  raised.  And  notwithstanding  the  doubts  excited  by  some 
of  these  decisions,  we  have  been  brought  to  a  conclusion  which  coin- 
cides, as  we  think,  with  the  true  meaning  of  the  statute.  The  language 
of  the  4th  section  (1  Rev.  Sts.  c.  74),  on  which  the  question  depends,  is 
peculiar.  It  does  not  require,  that  the  note  or  memorandum  in  writing 
of  the  bargain  should  be  signed  by  both  the  contracting  parties,  but 
only  "  by  the  party  to  be  charged  thereby  or  by  some  person  there- 
unto by  him  lawfully  authorized." 

"  The  principal  design  of  the  Statute  of  Frauds  was,"  as  Lord  Ellen- 
borough  remarks  in  Cuff  u.Penn,  1  M.  &  S.  26,  "that  parties  should 
not  have  imposed  on  them  burdensome  contracts  which  they  never 
made,  and  be  fixed  with  goods  which  they  never  contemplated  to  pur- 
chase." The  statute  therefore  requires  a  memorandum  of  the  bargain 
to  be. in  writing,  that  it  may  be  made  certain;  but  it  does  not  under- 
take to  regulate  its  performance.  It  does  not  say  that  such  a  contract 
shall  not  be  varied  by  a  subsequent  oral  agreement  for  a  substituted 
performance.  That  is  left  to  be  decided  by  the  rules  and  principles  of 
law  in  relation  to  the  admission  of  parol  evidence  to  vary  the  terms  of 
written  contracts.  We  have  no  doubt  therefore  that  accord  and  satis- 
faction by  a  substituted  performance  would  be  a  good  defence  in  this 
action.  So  if  the  plaintiffs  had  paid  for  the  goods  according  to  the 
oral  agreements  to  pay  cash  or  give  security,  and  the  defendants  had 
thereupon  completed  the  delivery  of  the  goods  contracted  for,  it  would 
have  been  a  good  performance  of  the  written  contract.  This  has  been 
prevented  (if  the  defendants  can  prove  what  they  offered  to  prove)  by 
the  plaintifls'  refusal  to  j^erform  on  their  part  a  fair  and  valid  contract. 
And  it  is  a  well  settled  principle  that,  if  two  contracting  parties  are 
bound  to  do  certain  reciprocal  acts  simultaneously,  the  ofler  of  one  of 
the  parties  to  perform  the  contract  on  his  part,  and  the  refusal  of  the 
other  to  comply  with  the  contract  on  his  part,  will  be  equivalent  to  a 
tender  and  refusal ;  and  in  the  present  case  we  think  it  equivalent  to 
an  accord  and  satisfaction,  which  was  prevented  by  the  fault  of  the 
plaintiffs,  who  agreed  for  a  valuable  consideration  —  if  what  the  defend- 
ants offered  to  shew  be  true  —  to  vary  the  terms  of  the  written  con- 
tract as  to  the  time  of  payment,  and  afterwards  refused  to  comply  with 


SECT.    VI.]  CUMMINGS   V.    ARNOLD.  579 

their  agreement.  If  the  defendants  on  their  pai't  had  refused  to  per- 
form the  verbal  agreement,  then  indeed  it  could  not  be  set  up  in  defence 
of  the  present  action ;  for  the  party  who  sets  up  an  oral  agreement  for 
a  substituted  i)erformanoe  of  a  written  contract  is  bound  t(j  prove  that 
he  has  ])erfonned  or  has  been  ready  to  perform  the  oral  agreement. 

This  distinction  avoids  the  difficulty  suggested  in  some  of  the  cases 
cited,  where  it  is  said  that  to  allow  a  party  to  sue  partly  on  a  written 
and  partly  on  a  verbal  agreement  would  be  in  direct  opposition  to  the 
requisitions  of  the  statute;  and  it  undoubtedly  would  be  ;  but  no  jiarty 
having  a  right  of  action  can  be  compelled  to  sue  in  this  form.  He  may 
always  declare  on  the  written  contract ;  and  unless  the  defendant  can 
prove  performance  according  to  the  tenns  of  the  contract  or  according 
to  the  agreement  for  a  substituted  performance,  the  plaintiff  would  be 
entitled  to  judgment.  We  think  therefore  that  the  evidence  of  the 
oral  agreements  oftered  at  the  trial  should  have  been  admitted  ;  the 
same  not  being  within  the  Statute  of  Frauds,  and  the  evidence  being 
admissible  by  the  rules  of  law. 

In  support  of  this  view  of  the  case  I  shall  not  attempt  to  reconcile 
all  the  conflicting  opinions  which  have  been  held  in  similar  or  nearly 
similar  cases,  some  of  which  appear  to  have  been  decided  on  very  sub- 
tle and  refined  distinctions.  I  will  however  refer  to  a  few  decisions 
which  bear  directly  on  the  present  case.  The  case  of  Cuff  v.  Penn, 
1  M.  &  S.  21,  is  a  strong  authority  in  favor  of  the  defendants,  as  the 
facts  on  which  the  decision  in  that  case  depended  are  in  all  respects 
substantially  similar  to  those  offered  to  be  proved  in  this  action.  That 
was  an  action  of  assumpsit  for  not  accepting  a  quantity  of  bacon,  which 
by  a  written  contract  the  defendant  agreed  to  purchase  of  the  plaintiff, 
to  be  delivered  at  certain  fixed  times.  After  a  part  of  the  bacon  had 
been  delivered  the  defendant  requested  the  plaintiff,  as  the  sale  was 
dull,  not  to  press  the  delivery  of  the  residue  ;  and  the  plaintiff  assented. 
The  defendant  afterwards  refused  to  accept  the  residue,  and  set  up  the 
Statute  of  Frauds  in  defence;  but  the  court  held  that  there  was  a 
parol  dispensation  of  the  performance  of  the  written  contract  as  to  the 
times  of  delivery,  which  was  not  affected  by  the  Statute  of  Frauds. 
Lord  Ellenborough  says :  "  I  think  this  case  has  been  argued  very  much 
on  a  misunderstanding  of  the  Statute  of  Frauds,  and  the  question  has 
been  embarrassed  by  confounding  two  subjects  quite  distinct ;  namely, 
the  provision  of  the  statute,  and  the  rule  of  law  whereby  a  party  is 
precluded  from  giving  parol  evidence  to  vary  a  written  contract."  "  It 
is  admitted,"  he  adds,  in  another  part  of  his  opinion,  "  that  there  was 
an  agreed  substitution  of  other  days  than  those  originally  specified  for 
the  performance  of  the  contract ;  still  the  contract  remains.  Suppose 
a  delivery  of  live  hogs  instead  of  bacon  had  been  substituted  and 
accepted :  might  not  that  have  been  given  in  evidence  as  accord  and 
satisfaction?  So  here  the  parties  have  chosen  to  take  a  substituted 
performance." 


580  CUMMINGS   V.    AENOLD.  [CHAP.    I. 

The  principle  on  which  this  was  decided  is  laid  down  in  several 
other  cases,  some  of  which  have  been  already  cited  on  the  other  point 
of  defeiice. 

At  the  argument  of  the  case  of  Goss  v.  Lord  Nugent,  Parke,  J., 
remarked  that  "in  Cuff  v.  Penn,  and  some  other  cases  relating  to 
contracts  for  the  sale  of  goods  above  £10,  it  has  been  held  that  the 
time  in  which  the  goods  by  the  agreement  in  wiiting  were  to  be 
delivered  might  be  extended  by  a  verbal  agreement.  But  I  never 
could  understand  the  principle  on  which  those  cases  proceeded ;  for 
the  new  contract  to  deliver  within  the  extended  time  must  be  proved 
partly  by  writing  and  partly  by  oral  evidence."  But  there  is  no 
necessity  for  the  plaintiff  to  declare  partly  on  the  written  and  partly 
on  the  oral  agreement.  He  may  always,  as  before  remarked,  declare 
on  the  written  contract ;  and  the  defendant  will  be  bound  to  prove  a 
performance  according  to  the  terms  of  it  or  according  to  the  terms 
of  a  substituted  performance ;  and  performance  in  either  way  may  be 
proved  by  parol  evidence. 

Lord  Denman,  who  delivered  the  opinion  of  the  court  in  Goss  v. 
Lord  Nugent,  does  not  question  the  correctness  of  the  decision  in 
Cuff  V.  Penn ;  and  his  remarks  on  another  branch  of  the  Statute 
of  Frauds  seem  to  be  confirmatory  of  the  principle  laid  down  by 
Lord  Ellenborough  in  the  latter  case.  "It  is  to  be  observed,"  he 
says,  "  that  the  statute  does  not  say  in  distinct  terms  that  all  con- 
tracts or  agreements  concerning  the  sale  of  lands  shall  be  in  writing, 
and  there  is  no  clause  which  requires  the  dissolution  of  such  con- 
tracts to  be  in  writing."  In  that  action  however  the  plaintiff  declared 
partly  on  the  written  and  partly  on  the  verbal  contract,  and  on  that 
ground  it  was  rightfully  enough  decided  that  the  action  could  not  be 
maintained. 

In  Stowell  V.  Robinson,  3  Bing.  N.  R.  928,  and  5  Scott,  196,  it 
was  held  that  the  time  for  the  performance  of  a  written  contract  for 
the  sale  of  lands  could  not  be  enlarged  by  a  subsequent  oral  agree- 
ment, although  that  agreement  was  pleaded  by  the  defendant  as  a  bar 
to  the  action.  The  plea  was  that  at  the  time  stipulated  for  the  per- 
formance of  the  written  contract  neither  party  was  ready  to  com- 
plete the  sale ;  and  the  time  for  the  performance  was  agreed  by  the 
parties  to  be  j^ostponed.  That  decision  seems  to  be  founded  on  the 
doubt  suggested  by  Parke,  J.,  in  Goss  v.  Lord  Nugent,  and  upon 
the  decision  in  that  case,  without  noticing  the  distinction  in  the  two 
cases.  And  it  appears  to  us  that  the  case  of  Stowell  v.  Robinson 
was  decided  on  a  mistaken  construction  and  application  of  the 
Statute  of  Frauds ;  and  that  the  distinction  between  the  contract  of 
sale  which  is  required  to  be  in  writing,  and  its  subsequent  perform- 
ance as  to  which  the  statute  is  silent,  was  overlooked  or  not  suffi- 
ciently considered  by  the  court ;  otherwise  the  decision  perhaps  might 
liave  been  different.     We  think  there  is  no  substantial  difference,  so 


SECT.    VI.]  SUYDAM   V.    CLARK.  581 

far  as  it  relates  to  the  Statute  of  Frauds,  between  the  plea  in  that 
case  and  the  plea  of  accord  and  satisfaction,  or  a  ))k'a  that  the  written 
contract  had  been  totally  dissolved  before  breach  by  an  oral  agree- 
ment ;  either  of  which  pleas  would  have  been  a  good  and  sufficient 
bar  to  the  action.  We  are  aware  that  the  principle  on  which  Stowell 
V.  Robinson  was  decided  is  supported  by  other  English  cases  cited  ; 
but  the  principle  on  which  the  case  of  Cuff  v.  Penn  was  decided  is 
in  our  jtidgnient  more  satisfactory,  and  better  adapted  to  the  adminis- 
tration of  justice  in  this  and  similar  cases. 

It  is  to  be  observed  in  the  present  case  that  the  oral  agreements 
offered  to  be  proved  by  the  defendants  did  not  vary  the  terras  of  the 
written  contract  as  to  its  performance  on  their  part ;  the  only  alter- 
ation was  as  to  the  time  of  payment  by  the  ])laintiffs.  Such  an 
alteration,  made  on  a  good  consideration  and  bet'oro  any  breach  of 
the  contract,  may,  we  think,  be  proved,  without  any  infringement  of 
the  Statute  of  Frauds  or  any  principle  of  law. 

JVew  trial  granted.^ 


SUYDAM,   REED,  &  Co.  v.   CLARK  &   COLEIVIAN. 

Superior  Court  op  the  City  of  New  York,  September,  1848. 

[Reported  in  2  Sandford,  133.] 

Assumpsit  to  recover  the  difference  on  a  contract  of  the  defend- 
ants to  purchase  flour,  which  not  being  performed  the  flour  was 
re-sold  at  their  risk. 

The  cause  was  tried  before  the  Chief  Justice  ^  on  the  14th  of  April, 
1848.  The  plaintiffs  called  W.  L.  Roberts,  who  testified  that  he  was 
a  produce  brqker  in  this  city,  and  made  the  sale  and  purchase  of  the 
flour  between  the  parties.  The  following  is  the  bought  note  which  he 
sent  to  the  plaintiffs  :  — 
No.  274.  New  York,  July  13th,  1S47. 

Gentlemen,  —  We  have  this  day  sold  for  your  account  to  Clark  &  Coleman 
1000  barrels  superfine  Hour,  whereof  750  barrels  are  *' T.  Wiman  "  at  $6  per 
barrel ;  and  250  barrels  "  Scio"  at  $5.87A  per  barrel. 

The  750  barrels  to  be  delivered  when  it  arrives,  not  later  than  three  days ; 

and  the  "  Scio  "  to  be  marked  "  Genesee." 

Roberts  Bkos.,  Brokers. 
To  SuYDAM,  Reed,  &  Co. 

'  See  Stearns  v.  Hall,  9  Cush.  31,  ace. ;  Ladd  v.  King,  1  Rhode  Island,  224,  contra. 
—  Ed. 

•J  Oakley. —  Ed. 


582  SUYDAM   V.    CLARK.  [CHAP.    I. 

The  following  is  the  sold  note  which  he  sent  to  the  defendants  :  — 

No.  274.  New  York,  July  13th,  1847. 

Gentlemen, — We  have  this  day  bought  for  your  account  of  Suydam, 
Reed,  &  Co.,  1000  barrels  superfine  flour,  -whereof  750  barrels  are  "  T.  Wiman  " 
at  $6  per  barrel;  and  250  barrels  "  Scio  "  at  $5.87^  per  barrel.  To  be 
delivered  when  it  arrives,  not  later  than  three  days ;  and  the  "  Scio  "  to  be 
marked  "  Genesee." 

Roberts  Bros.,  Brokers. 

To  Clark  &  Coleman. 

1 

The  defendants'  counsel  moved  for  a  nonsuit  on  the  ground  [^inter 
alia]  that  the  brokers'  notes  of  the  contract  delivered  to  the 
respective  parties  varied,  and  did  not  constitute  a  contract,  and  none 
had  been  proved  by  the  plaintiffs.  .  .  .  The  judge  granted  the  mo- 
tion, and  the  plaintiffs'  counsel  excepted. 

S.  Sherwood,  for  the  plaintiffs,  cited  14  John.  485  ;  3  Wend.  112  ; 
26  ibid.  363. 

A.  8.  Johnson,  for  the  defendants,  cited  3  Wend.  459 ;  26  ibid.  341 ; 
5  Barn.  &  Cr.  436 ;  9  Mees.  &  Welsh.  600  ;  2  Campb.  326  ;  3  iUd.  274 ; 
7  Dowl.  &  Ryl.  131. 

By  the  Court.  Vanderpoel,  J.  We  think  the  variance  here  is 
fatal.  The  broker  was  the  agent  of  both  parties  :  he  must  be  deemed 
to  have  been  employed  by  the  one  to  buy  and  by  the  other  to  sell ; 
and  the  notes  which  he  delivers  to  the  parties  evidence  their  con- 
tract. According  to  the  note  delivered  to  the  plaintiffs,  the  750 
barrels  only  were  to  be  delivered  when  it  arrived,  not  later  than 
three  days ;  whereas,  according  to  the  note  delivered  to  the  defend- 
ants, the  whole  quantity,  a  thousand  barrels,  was  to  be  delivered  on 
its  arrival,  not  later  than  three  days.  By  the  latter  note  then  the 
obligation  of  the  defendants  to  take  the  thousand  barrels  was  con- 
ditioned on  its  arrival  and  delivery  within  three  days.  Whether  the 
terms  of  the  latter  note  were  more  or  less  beneficial  to  the  defendants 
than  the  former  cannot  be  material.  Both  parties  had  the  right  to 
determine  that  question  for  themselves  when  they  entered  into  the 
contract. 

In  Grant  v.  Fletcher,  5  Barn.  &  Cress.  436,  it  was  expressly  held 
that  the  broker  is  the  agent  for  both  parties,  and  as  such  may  bind 
them  by  signing  the  same  contract  on  behalf  of  buyer  and  seller. 
But  that  if  he  does  not  sign  the  same  contract  for  both  parties,  neither 
will  be  bound ;  and  that  where  a  broker  delivers  a  different  note  of  the 
contract  to  each  of  the  contracting  parties,  there  is  no  valid  contract. 
Davis  V.  Shields,  26  Wend.  341 ;  Peltier  v.  Collins,  3  Wend.  459.  .  .  . 

The  motion  to  set  aside  the  no7isuit  is  denied, 

I  Only  80  much  of  the  caae  is  given  as  relates  to  the  Statute  of  Frauds,  —  Ed. 


SECT.    VI.]         SALMON    FALLS   MANUF,    CO.    V.    GODDARD.  583 


THE     SALMON     FALLS     MANUFACTURING     COMPANY, 

Plaintiff  in  Error,  v.   WILLIAM   W.   GODDARD. 

Supreme  Court  of  the  United  States,  December  Term,  1852. 

[Reported  in  20  Curtis,  276,  14  Hoioard,  446.] 

The  case  is  stated  in  the  opinion  of  the  court. 

C.  J3.  Goodrich,  for  the  plaintiffs. 

Johnson  and  George  T.  Davis,  contra. 

Nelson,  .J.,  delivered  tlie  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States  for 
the  district  of  Massachusetts. 

The  suit  was  brought  by  the  plaintiffs  in  the  court  beloAv  to  recover 
the  price  of  300  bales  of  brown  and  of  100  cases  of  blue  drills,  which 
they  had  previously  sold  to  the  defendant. 

The  contiMct  for  the  purcliase  was  made  with  the  house  of  JVIason 
&  Lawrence,  agents  of  the  plaintiffs  in  Boston,  on  the  19th  Sep- 
tember, 1850,  and  a  memorandum  of  the  same  signed  by  the  parties. 
A  bill  of  pai-cels  was  made  out  under  date  of  30th  Septeml)er,  stating 
the  purchase  of  the  goods  by  the  defendant,  carrying  out  prices  and 
footuig  up  the  amount  at  $18,565.03;  also  the  terms  of  ]>ayment, — 
note  at  twelve  months,  payable  to  the  treasurer  of  the  plaintiffs.  This 
was  forwarded  to  the  defendant  on  the  11th  October,  and  in  pur- 
suance of  an  order  from  him  the  300  bales  were  sent  from  tlu'ir 
establishment  at  Salmon  Falls  by  the  railroad,  and  arived  at  the  depot 
in  Boston  on  the  30th  October,  of  which  notice  was  given  to  the 
defendant  on  the  same  day,  and  a  delivery  tendered.  He  requested 
that  the  goods  should  not  be  sent  to  his  warehouse  or  place  of 
delivery,  for  the  reason,  as  subsequently  stated  by  his  clerk,  there  was 
no  room  for  storage.  The  agents  of  the  plaintiffs  the  next  day 
renewed  the  tender  of  delivery  by  letter,  adding  that  the  goods 
remained  at  the  depot  at  his  risk  and  subject  to  storage,  to  which  no 
answer  was  returned.  On  the  night  of  the  4th  November  the  railroad 
depot  was  consumed  by  fire,  and  with  it  the  300  bales  of  the  goods 
in  question.  The  price  was  to  be  paid  by  a  note  at  twelve  months, 
which  the  defendant  refused  to  give ;  upon  Avhich  refusal  this  action 
was  brought. 

The  court  below  at  the  trial  held  tliat  the  written  memorandum, 
made  at  the  time  of  enterins;  into  the  contract  between  the  asjents  of 
the  plaintiffs  and  the  defendant,  was  not  sufficient  to  take  tlie  case  out 
of  the  Statute  of  Frauds,  and  as  there  was  no  acceptance  of  the  goods 
the  plaintiffs  could  not  recover. 

As  we  differ  with  the  learned  judge  who  tried  the  cause  as  to  the 
sufficiency  of  the  written  memorandum,  the  question  upon  the  statute 


584  SALMON   FALLS   MANUF.    CO.   V.   GODDAED.  [CHAP.    I. 

is  the  only  one  that  it  will  be  material  to  notice.     The  memorandum 

is  as  follows  :  — 

Sept.  19,  —W.  W.  Goddard,  12  mos. 

HOO  bales  S.  F.  drills 7i 

100  cases  blue    do 8| 

Credit  to  commence  Avlien  ship  sails  ;    not  after  Deer.  1  — 

delivered  free  of  charge  for  truckage. 
The  blues,  if  color  satisfactory  to  purchasers. 

R.  M.  M. 
W.  W.  G. 

The  statute  of  Massachusetts  on  this  subject  is  substantially  the 
same  as  that  of  29  Car.  2,  c.  3,  §  17,  and  declares  that  no  contract  for 
the  sale  of  goods,  &c.,  shall  be  valid,  &c.,  "  unless  some  note  or  memo- 
randum in  writing  of  the  bargain  be  made  and  signed  by  the  party  to 
be  charged  thereby  or  by  some  person  thereunto  by  him  lawfully 
authorized." 

The  word  "  bargain "  in  the  statute  means  the  terms  upon  which 
the  respective  parties  contract ;  and  in  the  sale  of  goods  the  terms  of 
the  bargain  must  be  specified  in  the  note  or  memorandum,  and  stated 
with  reasonable  certainty,  so  that  they  can  be  understood  from  the 
writing  itself  without  having  recourse  to  parol  proof;  for  unless  the 
essential  terms  of  the  sale  can  be  ascertained  from  the  writing  itself  or 
by  a  reference  contained  in  it  to  something  else,  the  memorandum  is 
not  a  com])liance  with  the  statute. 

This  brief  note  of  the  contract  however,  like  all  other  mercantile 
contracts,  is  subject  to  explanation  by  reference  to  the  usage  and 
custom  of  the  trade,  with  a  view  to  get  at  the  true  meaning  of  the 
parties  as  each  is  presumed  to  have  contracted  in  reference  to  them. 
And  although  specific  and  express  provisions  will  contx'ol  the  usage 
and  exclude  any  such  explanation,  yet,  if  the  terms  are  technical,  or 
equivocal  on  the  face  of  the  instrument,  or  made  so  by  reference  to 
exti-aneous  circumstances,  parol  evidence  of  the  usage  and  practice 
in  the  trade  is  admissible  to  explain  the  meaning.  2  Kent,  C.  556, 
and  note  3  ;  ibid.  260,  and  note;  Long  on  Sales,  197  (ed.  1839)  ;  1  Gale 
&  Davis.  52. 

Extraneous  evidence  is  also  admissible  to  shew  that  a  person  whose 
name  is  afiixed  to  the  contract  acted  only  as  an  agent,  thereby 
enabling  the  principal  either  to  sue  or  be  sued  in  his  own  name ;  and 
this,  though  it  purported  on  its  face  to  have  been  made  by  the  agent 
himself,  and  the  principal  not  named.  Higgins  v.  Senior,  8  M.  & 
Wels.  834;  Trueman  v.  Loder,  11  Ad.  &  Ell.  589.  Lord  Denman 
observed  in  the  latter  case  "  that  parol  evidence  is  always  necessary 
to  shew  that  the  party  sued  is  the  party  making  the  contract,  and 
bound  by  it ;  whether  he  does  so  in  his  own  name  or  in  that  of  another, 
or  in  a  feigned  name,  and  whether  the  contract  be  signed  by  his  own 
hand  or  that  of  an  agent,  are  inquiries  not  different  in  their  nature 


SECT.    VI.]  SALMON    FALLS  MANUP.    CO.    V.   GODDARD.  585 

from  the  question,  Who  is  the  person  who  has  just  ordered  goods  in  a 
shop?  If  lie  is  sued  for  the  price,  and  liis  identity  made  out,  the  con- 
tract is  not  varied  by  appearing  to  have  been  made  by  him  in  a  name 
not  his  own." 

So  the  signature  of  one  of  the  parties  is  a  sufficient  signing  to 
chai-ge  the  firm.     Soames  v.  Spencer,  1  D.  &  R.  32 ;    Long  on  Sales, 

58. 

It  has  also  been  held  in  the  case  of  a  sold  note  which  expressed 
"eighteen  pockets  of  hops  at  100s.,"  that  parol  evidence  was  admissible 
to  shew  that  the  100s.  meant  the  price  per  cwt.  Spicer  v.  Cooper, 
1  Gale  &  D.  52,  5  Jurist,  1036. 

The  memorandum  in  that  case  was  as  follows :  — 

Sold  to  Waite  Spicer,  of  S.  Walden,   18  pos.  Kent  hops,  as  under  July  23, 

1840 ;  10  pos.  Barlow  East  Kent,  1839  ;  8  pos.  Springall  Goodliurst  Kent,  1839, 

lOOs.  Delivered. 

John  Cooper. 

Evidence  was  admitted  on  the  trial  to  prove  that  the  100s.  was 
understood  in  the  trade  to  refer  to  the  price  per  cwt.,  and  the  ruling 
approved'  by  the  King's  Bench.  Lord  Deumau  put  a  case  to  the 
counsel  in  the  argument  to  illustrate  his  view,  that  bears  upon  the  case 
before  us.  Suppose,  he  said,  the  contract  had  been  for  ten  biitts  of 
beer,  at  one  shilling,  the  ordinary  price  of  a  gallon  —  and  intimated 
that  the  meaning  could  hardly  be  mistaken. 

Now,  within  the  principles  above  stated,  we  are  of  opinion  that  the 
memorandum  in  question  was  a  sufficient  compliance  with  the  statute. 
It  was  competent  to  shew  by  parol  proof  that  Mason  signed  for  the 
firm  of  Mason  &  Lawrence,  and  that  the  house  was  acting  as  agents 
for  the  plaintiffs,  a  company  engaged  in  manufacturing  the  goods 
which  Avere  the  subject  of  the  sale ;  and  also  to  shew  that  the  figures 
7;^  and  8|,  set  opposite  the  300  bales  and  100  cases  of  goods,  meant 
seven  and  a  quarter  cents  and  eight  and  three-quarter  cents  per  yard. 

The  memorandum  therefore  contains  the  names  of  the  sellers  and 
of  the  buyer,  the  commodity  and  the  price ;  also  the  time  of  credit 
and  conditions  of  the  delivery ;  and  in  the  absence  of  any  specified 
time  or  place  of  delivery,  the  law  will  supply  the  omission,  namely,  a 
reasonable  time  after  the  goods  are  called  for,  and  usual  place  of  busi- 
ness of  the  purchaser,  or  his  customary  place  for  the  delivery  of  goods 
of  this  desci'iption. 

In  respect  to  the  giving  of  the  note,  which  was  to  run  during  the 
period  of  the  credit,  it  appears  to  be  the  uniform  custom  of  the  house 
of  Mason  &  Lawrence  to  take  notes  for  goods  sold  oi  this  descrip- 
tion. The  defendant  was  one  of  their  customers  and  knew  this  usage; 
and  it  is  a  presumption  of  law  therefore  that  the  purchase  was  made 
with  reference  to  it,  there  being  no  stipulation  to  the  contrary  in  the 
contract  of  the  parties. 


586  SALMON   FALLS   MANDF.    CO.    V.    GODDARD.  [CHAP.    L 

We  are-  also  of  opinion,  even  admitting  that  there  might  be  some 
obscurity  in  the  terms  of  the  memorandum,  and  intrinsic  difficulty  in 
a  proper  understanding  of  them,  that  it  would  be  competent,  under 
the  circumstances  of  the  case,  to  refer  to  the  bill  of  parcels  delivered 
for  the  purpose  of  explanation.  We  do  not  say  that  it  would  be  a 
note  in  writing  of  itself  sufficient  to  bind  the  defendant  within  the 
statute  :  though  it  might  be  to  bind  the  plaintiff. 

It  was  a  bill  of  sale  made  out  by  the  seller,  and  contained  his 
understanding  of  the  terms  and  meaning  of  the  contract ;  and  having 
been  received  by  the  buyer,  and  acquiesced  in  (for  the  order  to  have 
the  goods  forwarded  was  given  after  it  was  received)  the  natural 
inference  would  seem  to  be  that  the  interpretation  given  was  according 
to  the  understanding  of  both  parties.  It  is  not  necessary  to  say  that 
this  would  be  the  conclusion  if  the  bill  differed  materially  from  the 
wi'itten  contract ;  that  might  present  a  different  question ;  but  we 
think  it  is  so  connected  with,  and  naturally  resulting  from,  the  trans- 
action, that  it  may  be  properly  referred  to  for  the  purpose  of  explain- 
ing any  ambiguity  or  abbreviations,  so  common  in  these  brief  notes 
of  mercantile  contracts. 

A  printed  bill  of  parcels  delivered  by  the  seller  may  be  a  sufficient 
memorandum  within  the  statute  to  bind  him,  especially  if  subse- 
quently recognized  by  a  letter  to  the  buyer.  2  B.  &  P.  238 ; 
3  Esp.  180.  And  generally  the  contract  may  be  collected  from 
several  dis'tinct  papers  taken  together  as  forming  parts  of  an  entire 
transaction,  if  they  are  connected  by  express  reference  fi-om  the  one 
to  the  others.  3  Ad.  &  Ell.  355;  9  B.  &  Cr.  561;  2  ibid.  945; 
3  Taunt.  169  ;  6  Cow.  445 ;  2  M.  &  Wels.  660 ;  Long  on  Sales,  55, 
and  cases. 

In  the  case  before  us  the  bill  of  parcels  is  not  only  connected  with 
the  contract  of  sale,  which  has  been  signed  by  both  parties,  but  was 
made  out  and  deUvered  in  the  course  of  the  fulfilment  of  it ;  has  been 
acquiesced  in  by  the  buyer,  and  the  goods  ordered  to  be  delivered 
after  it  was  received.  It  is  not  a  memorandum  sufficient  to  bind  him, 
because  his  name  is  not  affixed  to  it  by  his  authority ;  but  if  he  had 
subsequently  recognized  it  by  letter  to  the  sellers,  it  might  have  been 
sufficient.     2  B.  &  P.  238 ;  2  M.  &  Wels.  653  ;  3  Taunt.  169. 

But  although  we  admit,  if  it  was  necessary  for  the  plaintiffs  to 
rely  upon  the  bill  as  the  note  or  memorandum  within  the  statute, 
they  must  have  failed,  we  think  it  competent  within  the  principle 
of  the  cases  on  the  subject,  from  its  connection  with  and  relation  to 
the  contract,  to  refer  to  it  as  explanatory  of  any  obscurity  or  indefi- 
niteness  of  its  terms,  for  the  purpose  of  removing  the  ambiguity. 

Take,  for  example,  as  an  instance,  the  objection  that  the  price  is 
uncertain,  the  figures  7^  and  8|,  opposite  the  300  bales  and  100 
cases  of  drills,  given  without  any  mark  to  denote  what  is  intended  by 
them. 


SECT.    VI.]         SALMON    FALLS   MANUF.    CO.    V.    GODDARD.  587 

The  bill  of  parcels  carries  out  these  figures  as  so  many  cents  per 
yard,  and  the  atjgregate  amount  footed  up  ;  and  after  it  is  received  by 
the  defendant,  and  with  a  knowledge  of  this  explanation,  he  orders  the 
goods  to  be  forwarded. 

We  cannot  doubt  but  that  the  bill  under  such  circumstances  affords 
competent  evidence  of  the  meaning  to  be  given  to  this  part  of  the 
written  memorandum.  And  so  in  respect  to  any  other  indefinite  or 
abbreviated  item  to  be  found  in  this  brief  note  of  a  mercantile  contract. 

For  these  reasons  we  are  of  opinion  that  the  judgment  of  the  court 
below  must  be  reversed,  and  the  proceedings  remitted  with  directions 
to  award  a  venire  de  novo. 

Catron,  J.,  Daniel,  J.,  and  Curtis,  J.,  dissented. 

Daxtel,  J.,  dissenting.  Upon  the  point  made  in  this  case  on  the 
Statute  of  Frauds  I  entirely  concur  in  the  exposition  of  the  law  just 
announced  by  the  court.  With  respect  however  to  the  proceedings 
ordered  by  this  court  to  be  taken  in  this  case  in  the  Circuit  Court,  I 
am  constrained  to  dissent  from  the  decision  of  my  brethren.  My 
opinion  is  that,  under  the  2d  section  of  the  3d  article  of  the  Constitu- 
tion, the  courts  of  the  United  States  could  not  take  cognizance  of  the 
controversy  between  these  parties;  and  that  therefore  the  proper 
direction  to  the  Circuit  Court  would  have  been  to  dismiss  this  suit  for 
want  of  jurisdiction.  My  reasons  for  the  conclusion  here  expressed 
having  been  given  in  detail  in  the  case  of  Rundle  et  al.  v.  The  Dela- 
ware and  Raritan  Canal  Company,  14  How.  80,  during  the  present 
term,  it  is  unnecessary  to  repeat  them  on  this  occasion. 

Curtis,  J.  I  have  the  misfortune  to  differ  from  the  majority  of  my 
brethren  in  this  case ;  and  as  the  question  is  one  which  enters  into  the 
daily  business  of  merchants  and  at  the  same  time  involves  the  con- 
struction of  a  statute  of  the  Commonwealth  of  Massachusetts,  I  think 
it  proper  to  state  briefly  the  grounds  on  which  I  rest  my  opinion. 

The  first  question  is.  Whether  the  WTiting  of  the  19th  of  September 
is  a  suflicient  memorandum  within  the  3d  section  of  the  74th  chapter 
of  the  Revised  Statutes  of  Massachusetts?  The  writing  is  in  these 
words  and  figures :  — 

Sept.  19,— W.  W.  Goddard,  12  mos. 

300  bales  S.  F.  drills 7^ 

100  cases  blue       ,,       .     .     .     .     < 8| 

Credit  to  commence  when  ship  sails  ;  not  after  Deer.  1  — 

delivered  free  of  charsre  for  truckage. 

R.  M.  M. 

W.  W.  G. 

The  blues,  if  color  is  satisfactory  to  purchaser. 

Does  this  writing  shew  upon  its  face,  and  without  resorting  to  extra- 
neous evidence,  that  W.  W.  Goddard  was  the  purchaser  of  these 
goods  ?     I  think  not.     Certainly  it  does  not  so  state  in  terms ;  nor  can 


588  SALMON    FALLS   MANUF.    CO.    V.    GODDAED.  [CHAP.    I. 

I  perceive  how  the  fact  can  be  collected  from  the  paper  by  any  certain 
intendment.  If  it  be  assumed  that  a  sale  was  made  and  that  Goddard 
was  a  party  to  the  transaction,  what  is  there  on  the  face  of  the  paper 
to  shew  whether  Goddard  sold  or  bought  ?  Extraneous  evidence  that 
he  was  the  seller  would  be  just  as  consistent  with  this  wi'iting  as  extra- 
neous evidence  that  he  was  the  purchaser.  Suppose  the  fact  had  been 
that  Mason  was  the  purchaser,  and  that  the  writing  might  be  explained 
by  evidence  of  that  foct :  it  would  then  be  read  that  Goddard  sold  to 
Mason  on  twelve  months'  credit ;  and  this  evidence  would  be  consist- 
ent with  every  thing  which  the  paper  contains,  because  the  paper  is 
wholly  silent  as  to  the  fact  whether  he  was  the  seller  or  the  purchaser. 
In  Bailey  et  al  v.  Ogden,  3  Johns.  Rep.  399,  an  action  for  not  accept- 
ing sugars,  the  memorandum  was  :  — 

14  December. 

J.  Ogden  and  Co.     Bailey  &  Bogart. 
Brown,  \2\  }      gQ  ^^^  gQ  j 
White,    16^  S 

Debenture  part  pay.' 

1  This  was  an  entry  in  pencil  in  the  pocket  memorandum  book  of  Francis  Huguet, 
who  acted  as  broker  for  the  defendants  in  purchasing  the  sugars.  The  following 
memorandum  of  the  sale  was  also  entered  by  the  plaintiffs  in  their  memorandum 

book :  — 

"  14th  December. 

"  Sold  Huguet  for  J.  Ogden  &  Co.,  notes  with  approved  indorser,         boxes  white, 
do.  brown  Havanna  sugars,  at  12i  for  brown  and  16i  for  white,  payable  at  60 
and  90  days  ;  debenture  we  will  receive  in  part  payment." 

Kent,  C.  J.,  delivered  the  following  opinion  as  to  the  sufficiency  of  these  memo- 
randa :  "  The  only  memoranda  which  were  made  relative  to  the  transaction  were  an 
entry  of  the  sale  of  the  sugars,  made  by  one  of  the  plaintiffs  in  their  memorandum 
book  immediately  after  the  alleged  sale,  and  the  minute  made  with  the  pencil  of 
Huguet  in  his  pocket  memorandum  book.  The  entry  of  the  plaintiffs,  made  and 
retained  by  them,  was  not  binding  upon  the  defendants,  because  the  statute  requires 
the  note  or  memorandum  to  be  signed  by  the  party  to  be  charged.  The  numerous 
cases  admitting  an  agreement  to  be  valid  within  the  statute,  if  signed  by  one  party 
only,  are  all  of  them  cases  in  which  the  agreement  was  signed  by  the  party  against 
whom  the  performance  was  sought.  Some  of  the  cases  arose  under  the  4th  and  others 
under  the  17th  section  of  the  English  statute,  but  the  words  are  in  this  respect  similar 
and  require  the  same  construction.  2  Cha.  Ca.  164 ;  1  Powell  on  Contracts,  286  ; 
5  Viner,  527,  pi.  17;  1  Vesey,  82;  3  Bro.  C.  C.  162;  3  Atk.  503;  6  East,  307;  7 
Vesey,  jun.  265;  9  Vesey,  jun.  234,  351 ;  1  Esp.  Cas.  190;  Ballow  v.  Walker,  in  this 
court,  Jan.  Term,  1802 ;  i  2  Caines,  120.  It  has  however  been  said  that  there  would 
be  a  want  of  mutuality  if  the  plaintiffs  in  this  case  were  bound  by  their  entry,  and 
the  defendants  should  not  be.  The  same  difficulty  has  occurred  in  other  cases ;  and 
Lord  Redesdale  felt  it  so  strongly  that  he  observed  (Lawrenson  v.  Butler,  1  Schoales 
and  Lefroy,  20),  that  to  enforce  every  agreement,  signed  by  one  party  only,  against 
such  party,  would  be  to  make  the  statute  really  a  statute  of  frauds,  and  that  there  was 

1  Since  reported,  3  Johns.  Cas.  60. 


SECT.    VI.]  SALMON   FALLS   MANUP.    CO.    V.    GODDARD.  589 

Mr.  Justice  Kent  who  delivered  the  opinion  of  the  court,  enumer- 
ating the  objections  to  the  memorandum,  says,  no  person  can  ascertain 
from  tliis  memorandum  which  of  the  parties  was  seller  and  ^\■llich 
buyer;  and  I  think  it  would  be  difficult  to  shew  that  the  memorandum 
now  in  question  is  any  more  intelligible  in  reference  to  this  fact. 

Indeed  I  do  not  understand  it  is  supposed  that  in  the  absence  of  all 
extraneous  evidence  it  could  be  detenuined  by  the  court  as  matter  of 
law,  ui)on  an  inspection  of  the  paper  alone,  that  Goddard  was  the  pur- 
chaser of  these  goods.  The  real  inquiry  is  whether  extraneous 
evidence  of  this  fact  is  admissible. 

Now  it  is  true  the  statute  requires  only  some  note  or  memorandum 
in  writing  of  the  bargain  ;  but  I  consider  it  settled  that  this  writing 
must  shew  who  is  vendor  and  who  is  purchaser.  In  Champion  v. 
Plummer,  1  B.  &  P.  New  Rep.  252,  the  memorandum  contained  the 
name  of  the  vendor,  a  description  of  the  goods  and  their  price,  and 
was  signed  by  the  vendee  ;  yet  it  was  held  that  the  vendee  could  not 
maintain  an  action  thereon,  because  it  did  not  appear  fi-om  the  writing 
that  he  Avas  vendee,  though  it  was  clearly  proved  by  j^arol. 

In  Sherburn  et  al.  v.  Shaw,  1  N.  H.  Rep.  157,  the  plaintiffs  caused 
certain  real  estate  to  be  sold  at  auction,  and  the  defendant  being  the 

no  late  case  in  wliicli  one  party  only  was  bound  by  the  agreement  where  equity  had 
decreed  performance,  though  he  admitted  the  import  of  the  statute  to  be  that  no 
agreement  should  be  ia  force  but  when  signed  by  the  party  to  be  charged.  He  fur- 
ther intimated  that  as  no  man  signed  an  agreement  but  under  a  supposition  that  the 
other  itarty  was  bound  as.  well  as  himself,  if  the  other  party  was  not  bound  he  signed 
it  under  a  mistake,  which  might  be  a  ground  for  relief  in  equity.  Whether  the  plain- 
tiffs in  the  present  case  were  boimd  at  law  by  their  memorandum,  or  if  bound  whether 
they  might  liave  relief  in  equity,  are  questions  not  before  us,  and  concerning  which 
we  are  not  now  to  inquire.  It  is  sufficient  to  say  that  the  defendants  were  not  bound 
by  any  note  or  memorandum  in  writing  of  the  contract,  unless  the  same  was  signed 
by  them  or  their  authorized  agent.  Huguet  was  in  this  instance  their  agent  to  make 
the  purchiise,  and  any  memorandum  made  by  him  respecting  the  purchase  would 
operate  as  a  memorandum  made  by  the  defendants.  But  the  memorandum  which  he 
made  was  too  vague  and  indefinite  to  be  a  compliance  with  the  statute.  The  form  of 
the  memorandum  cannot  be  material ;  but  it  must  state  the  contract  with  reasonable 
certaint}',  so  that  the  substance  of  it  can  be  made  to  appear,  and  be  understood  from 
the  writing  itself  without  having  recourse  to  parol  proof.  This  is  the  meaning  and 
substance  of  the  statute,  and  without  which  the  beneficial  ends  of  it  would  be  entirely 
defeated.  Prec.  in  Cha.  560 ;  3  Atk.  503 ;  1  Vesey,  jun.  333.  The  memorandum 
of  Huguet  is  absolutely  unintelligible.  It  has  not  the  essentials  of  the  contract,  or 
memorandum  of  a  contract.  No  person  can  ascertain  from  it  whicli  of  the  parties 
was  seller  and  which  was  buyer,  nor  whether  there  was  any  actual  sale  between 
them,  nor  what  specific  article  was  the  object  of  the  sale,  or  in  what  quantity,  or  what 
was  the  price.  A  memorandum  much  more  intelligible  than  this,  and  defective  onh'  in 
one  essential  point,  capable  of  full  explanation  by  a  witness,  was  lately  rejected  by  the 
court  of  C.  B.  in  England  on  the  same  ground.  Champion  v.  Plummer,  1  Bos.  & 
Pul.  New  Kep.  252.  There  was  then  no  note  or  memorandum  in  writing  which  took 
the  present  contract  out  of  the  Statute  of  Frauds,  as  far  at  least  as  it  respected  the 
defendants."     3  Johns.  418,  419.  —  Ed. 


590  SALMON   FALLS   MANUF.   CO.    V.    GODDARD.  [CHAP.    I. 

highest  bidder  signed  a  memorandum  agreeing  to  take  the  property : 
this  memorandum  was  written  on  a  paper  headed,  "  Articles  of  sale 
of  the  estate  of  Jonathan  Warner,  deceased,"  containing  the  terms  of 
the  sale  ;  and  this  paper  was  also  signed  by  the  auctioneex-.  Yet  the 
court,  through  Mr.  Justice  Woodbury  who  delivered  the  opin'on,  held 
that,  as  the  paper  failed  to  shew  that  the  plaintiffs  were  the  vendors,  it 
was  radically  defective.  Here  also  there  was  no  doubt  that  the  plain- 
tiffs were  the  vendors,  but  extraneous  evidence  to  supply  this  fact  was 
considered  inadmissible. 

It  seems  to  me  that  the  fact  that  the  defendant  was  the  purchaser 
is,  to  say  the  least,  as  necessary  to  be  stated  in  the  writing  as  any  other 
fact,  and  that  to  allow  it  to  be  proved  by  parol  is  to  violate  the  intent 
of  the  statute  and  encounter  the  very  mischiefs  which  it  was  enacted 
to  prevent.  Chancellor  Kent,  2  Com.  511,  says:  "The  contract  must 
however  be  stated  with  reasonable  certainty,  so  that  it  can  be  under- 
stood from  the  writing  itself  without  having  recourse  to  parol  proof." 
And  this  position  rests  upon  a  current  of  authorities  both  in  England 
and  America,  which  it  is  presumed  are  not  intended  to  be  disturbed. 
But  how  can  the  contract  be  understood  from  the  writing  itself,  when 
that  fails  to  state  which  party  is  vendor  and  which  purchaser? 

I  am  aware  that  a  latent  ambiguity  in  a  contract  may  be  removed 
by  extraneous  evidence  according  to  the  rules  of  the  common  law ; 
and  that  such  evidence  is  also  admissible  to  shew  what  in  point  of  fact 
was  the  subject-matter  called  for  by  the  terms  of  a  contract.  Bradley 
V.  Steam  P.  Co.,  13  Pet.  98.  So  when  an  act  has  been  done  by  a  per- 
son, and  it  is  doubtful  whether  he  acted  in  a  private  or  official  capacity, 
it  is  allowable  to  prove  by  parol  that  he  was  an  agent  and  acted  as 
such.  But  these  cases  fall  far  short  of  proving  that  when  a  statute 
requires  a  contract  to  be  in  writing  you  may  proVe  by  parol  the  fact 
that  the  defendant  was  purchaser,  the  writing  being  silent  as  to  that 
fact ;  or  that  a  writing  which  does  not  state  who  is  vendor  and  who 
purchaser  does  contain  in  itself  the  essentials  of  a  contract  of  sale. 

It  is  one  thing  to  construe  what  is  written  :  it  is  a  very  different 
thing  to  supply  a  substantive  fact  not'  stated  in  the  writing.  It  is  one 
thing  to  determine  the  meaning  and  effect  of  a  complete  and  valid  writ- 
ten contract,  and  it  is  another  thing  to  take  a  writing  which  on  its  face 
imports  no  contract  and  make  it  import  one  by  parol  evidence.  It  is 
one  thing  to  shew  that  a  party  who  appears  by  a  writing  to  have  made 
a  contract  made  it  as  an  agent,  and  quite  a  different  thing  to  prove  by 
parol  that  he  made  a  purchase  when  the  writing  is  silent  as  to  that 
fact.  The  duty  and  power  of  the  court  is  a  duty  and  power  to  give  a 
•construction  to  what  is  written,  and  not  in  any  case  to  permit  it  to  be 
added  to  by  parol.  Least  of  all  when  a  statute  has  required  the  essen- 
tial requisites  of  a  contract  of  sale  to  be  in  writing,  is  it  admissible,  in 
my  judgment,  to  allow  the  fact  that  the  defendant  made  a  purchase  to 


SECT.    VI.]  SALMON    FALLS   MANUF.    CO.    V.    GODDARD.  591 

be  proved  by  parol.  If  this  fact,  which  lies  at  the  basis  of  the  action 
and  to  which  every  other  is  but  incidental,  can  be  proved  by  evidence 
out  of  the  writing  signed  by  the  defendant,  the  statute  seems  to  me  to 
be  disregarded. 

It  has  been  argued  that  the  bill  of  parcels,  sent  to  Goddard  by 
Mason  &  Lawrence  and  received  by  him,  may  be  resorted  to  for  the 
purpose  of  shewing  he  was  the  purchaser.  But  it  is  certainly  the  law 
of  Massachusetts,  where  this  contract  was  made  and  the  case  tried,  as 
I  believe  it  is  of  most  other  States  and  of  England,  that  unless  the 
memorandum  which  is  signed  contains  a  reference  to  some  other  j)aper, 
no  paj)er  not  signed  by  the  party  to  be  charged  can  be  connected  with 
the  memorandum  or  used  to  supply  any  defect  therein.  This  was  held 
in  Morton  et  al.  v.  Dean,  13  Met.  385,  a  case  to  which  I  shall  have 
occasion  more  fully  to  refer  hereafter.  And  in  conformity  therewith 
Chancellor  Kent  lays  down  the  rule  in  2  Com.  511,  and  refers  to  many 
authorities  in  support  of  it.  I  am  not  aware  that  any  court  has  held 
otherwise. 

Tha,t  this  bill  of  parcels  was  of  itself  a  sufficient  memorandum  under 
the  statute,  or  that  it  was  a  paper  signed  by  the  defendant  or  by  any 
person  by  him  thereunto  lawfully  authorized,  I  do  not  understand  to 
be  held  by  the  majority  of  the  court. 

Now  the  memorandum  of  the  lOtli  September  is  either  sufficient  or 
insufficient  under  the  statute.  If  the  former,  there  is  no  occasion  to 
resort  to  the  bill  of  parcels  to  shew  who  was  vendor  and  who  pur- 
chaser ;  if  the  latter,  it  cannot  consistently  Avith  the  statute  be  made 
good  by  another  paper  not  signed  and  connected  M'ith  it  only  by  parol. 
To  charge  a  party  upon  an  insufficient  memorandum,  added  to  by  another 
independent  i)aper  not  signed,  would  be  to  charge  him  when  there  was 
no  sufficient  memorandum  signed  by  him,  and  therefore  in  direct  con- 
flict wdth  the  statute.  It  does  not  seem  to  me  to  be  an  answer  to  say 
that  the  bill  of  parcels  was  made  out  pursuant  to  the  memorandum. 
If  the  signed  memorandum  itself  does  not  contain  the  essentials  of  a 
contract  of  sale,  and  makes  no  reference  to  any  other  pa])er,  in  no  legal 
sense  is  any  other  paper  pursuant  to  it ;  nor  can  any  other  i)aper  be 
connected  with  it  save  by  parol  evidence,  which  the  statute  forbids. 
In  point  of  fact  it  would  be  difficult  to  imagine  any  two  independent 
papers  more  nearly  connected  than  a  memorandum  made  and  signed 
by  an  auctioneer,  and  the  written  conditions  read  by  him  at  the  sale. 
Yet  it  is  settled  that  the  latter  cannot  be  referred  to,  uidess  expressly 
called  for  by  the  very  terms  of  the  signed  memorandum.  Upon  what 
principle  does  a  bill  of  parcels  stand  upon  any  better  ground  ? 

The  distinction  heretofore  has  been  between  pai)ers  called  for  by  the* 
memorandum  by  express  reference,  and  those  not  thus  called  for :  this 
decision,  for  the  first  time  I  believe,  disregards  that  distinction,  and 
allows  an  unsigned  paper,  not  referred  to,  to  be  used  in  evidence  to 
charge  the  purchaser. 


592  SALMON    FALLS   MANUP.    CO.   V.    GODDARD.  [CHAP.    I. 

In  my  judgment  this  memorandum  was  defective  in  not  shewing 
who  was  vendor  and  who  purchaser,  and  oral  evidence  to  supply  this 
defect  was  not  admissible. 

But  if  this  difficulty  could  be  overcome,  or  if  it  had  appeared  on  the 
face  of  the  paper  that  Goddard  was  the  purchaser,  still  in  my  judg- 
ment there  is  no  sufficient  memorandum.  I  take  it  to  be  clearly 
settled  that,  if  the  court  cannot  ascertain,  from  the  paper  itself  or  from 
some  other  paper  therein  referred  to,  the  essential  terms  of  the  sale, 
the  writing  does  not  take  the  case  out  of  the  statute.  This  has  been 
so  often  decided  that  it  is  sufficient  to  refer  to  2  Kent's  Com.  511, 
where  many  of  the  cases  are  collected. 

The  rule  stated  by  the  Chancellor  as  a  just  deduction  from  the 
authorities  is :  "  Unless  the  essential  terms  of  the  sale  can  be  ascer- 
tained from  the  writing  itself,  or  by  a  reference  contained  in  it  to 
something  else,  the' writing  is  not  a  compliance  with  the  statute;  and 
if  the  agreement  be  thus  defective  it  cannot  be  supplied  by  parol  proof, 
for  that  would  at  once  introduce  all  the  mischiefs  which  the  Statute  of 
Frauds  and  Perjuries  was  intended  to  prevent." 

The  statute  then  requires  the  essential  terms  of  the  sale  to  be  in 
writing ;  the  credit  to  be  allowed  to  the  purchaser  is  one  of  the  terms 
of  the  sale. 

And  if  the  memorandum  shews  that  a  credit  was  to  be  given,  but 
does  not  fix  its  termination,  it  is  fatally  defective ;  for  the  court  cannot 
ascertain  from  the  paper  when  a  right  of  action  accrues  to  the  vendee, 
and  the  contract  shewn  by  the  paper  is  not  capable  of  being  described 
in  a  declaration.  The  rights  of  the  parties  in  an  essential  particular 
are  left  undetermined  by  the  paper.  This  paper  shews  there  was  to 
be  a  credit  of  six  [twelve]  months,  and  contains  this  clause :  "  Credit  to 
commence  when  ship  sails ;  not  after  Deer.  1."  According  to  this  paper 
when  is  this  credit  to  commence  ?  The  answer  is,  when  ship  sails,  if 
before  December  1.     What  ship  ?     The  paper  is  silent. 

This  is  an  action  against  Goddard  for  not  delivering  his  note  on 
twelve  months'  credit,  and  it  is  an  indispensable  inquiry  on  what  day, 
according  to  the  contract,  the  note  should  bear  date.  The  plaintiffs 
must  aver  in  their  declaration  what  note  Goddard  was  bound  to 
deliver,  and  the  memorandum  must  enable  the  court  to  say  that  the 
description  of  the  notes  in  the  declaration  is  correct.  They  attempt 
this  by  averring  in  the  declaration  that  the  contract  was  for  a  note 
payable  in  twelve  months  from  the  sailing  of  a  ship  called  the  Crusa- 
der, and  that  this  ship  sailed  on  the  6th  day  of  November.  But  the 
writing  does  not  refer  to  the  Crusader;  and  if  oral  evidence  were 
admissible  to  prove  that  the  parties  referred  to  the  Crusader,  this 
essential  term  of  their  contract  is  derived  from  parol  proof,  contrary  to 
the  requirement  of  the  statute.  It  was  upon  this  ground  the  case  of 
Morton  et  al.  v.  Dean,  and  many  other  similar  cases,  have  been  decided. 


SECT.    VI.]         SALMON    FALLS   MANDF.    CO.    V.    GODDARD.  593 

In  that  case  there  was  a  memorandum  signed  by  the  auctioneer  as  the 
agent  of  both  parties,  containing  their  names  as  vendor  and  vendee, 
the  price  to  be  paid,  and  a  sufficient  description  of  the  property.  But 
it  appeared  that  there  were  written  or  printed  conditions  read  at  the 
sale,  but  not  referred  to  in  the  memorandum,  containing  the  terms  of 
credit,  &c.,  and  therefore  tliat  the  memorandum  did  not  fix  all  the 
essential  jiarts  of  the  bargain,  and  it  was  held  insufficient. 

But,  further,  even  if  oral  evidence  were  admissible  to  shew  that  the 
parties  had  in  view  some  particular  vessel,  and  so  to  explain  or  render 
certain  the  memorandum,  no  such  evidence  was  offered,  and  no  request 
to  leave  that  question  of  fact  to  the  jury  was  made.  Mason,  who 
made  the  contract  with  Goddard,  was  a  witness;  but  he  does  not  pre- 
tend the  parties  had  any  particular  vessel  in  view,  still  less  that  they 
asrreed  on  the  Ci'usader  as  the  vessel  the  sailino-  of  Avhicli  was  to  be 
the  commencement  of  the  credit.  I  cannot  perceive  therefore  how 
either  of  the  counts  in  this  declaration  is  sup]>orted  by  the  evidence, 
or  how  a  different  verdict  could  have  lawfully  been  rendered. 

The  count  for  goods  sold  and  delivered  was  clearly  not  maintained, 
because  when  the  action  was  brought  the  credit  had  not  exj^ired,  even 
if  it  began  on  the  19th  of  September.  One  of  the  special  counts  avers 
that  the  notes  were  to  be  due  twelve  months  from  the  30th  of  Sep- 
tember; but  this  is  inconsistent  with  the  Avritten  memorandum,  and 
there  is  no  evidence  to  support  it.  The  other  special  counts  all  declare 
for  a  note  due  twelve  months  after  the  sailing  of  the  Crusader ;  but,  as 
already  stated,  there  is  no  evidence  whatever  to  support  this  allegation, 
and  a  verdict  of  the  jury  affirming  such  a  conti'act  must  have  been  set 
aside. 

It  may  be  added  also  that  no  one  of  the  j^i'^vers  for  instructions, 
contained  in  the  bill  of  exceptions,  makes  the  fact  tliat  the  2)arties  had 
reference  ^o  the  Crusader  any  element  of  the  contract,  but  that  each 
of  them  asks  for  an  instruction  upon  the  assum})tion  that  this  necessary 
term  of  the  contract  had  not  been  in  any  way  sup})lied. 

I  consider  the  language  of  Chief  Justice  Marshall  in  Grant  v.  Xay- 
lor,  4  Cranch,  234,  applicable  to  this  case.  That  great  judge  says  : 
"Already  have  so  many  cases  been  taken  out  of  the  Statute  of  Frauds, 
which  seem  to  be  within  its  letter,  that  it  may  well  be  doubted  whether 
the  exceptions  do  not  let  in  many  of  the  mischiefs  against  which  the 
rule  Avas  intended  to  guard.  The  best  judges  in  England  have  been 
of  opinion  that  this  relaxing  construction  of  the  statute  ought  not  to 
be  extended  further  than  it  has  already  been  carried,  and  this  court 
entirely  concurs  in  that  opinion." 

I  am  authorized  to  state  that  Mr.  Justice  Catron  concurs  in  this 
opinion. 

VOL.  I.  38 


*• 


594  WILLIAMS   V.    BACON.  [CHAP.   I. 


BENJAMIN    F.    WILLIAMS    v.    FRANCIS    BACON    akd 

Others. 

Supreme  Judicial  Court  of  Massachusetts,  October  Term,  1854. 

[Reported  in  2  Gray,  887.] 

Action  of  contract.  The  declaration  alleged  that  the  defendants 
on  or  about  the  1st  of  June,  1853,  contracted  to  sell  and  deliver  to  the 
plaintiff,  on  hoard  vessel  at  Philadelphia,  on  demand,  500  tons  red  ash 
egg  and  stove  coal  at  the  price  of  13.70  per  ton ;  and  300  tons  white 
ash  coal  at  the  following  prices,  namely,  100  tons  white  ash  egg  coal  at 
$3.45  per  ton,  100  tons  white  ash  stove  coal  at  $3.45  per  ton,  and  100 
tons  white  ash  lump  coal  at  $3.60  per  ton ;  and  that  the  plaintiff  on 
the  16th  of  August,  1853,  demanded  said  coal  of  the  defendants  at 
Philadelphia,  but  they  then  and  ever  since  neglected  and  refused  to 
deliver  the  same  or  any  part  thereof  The  defendants  in  their  answer 
denied  any  purchase  of  coal  by  the  plaintiff  of  the  defendants,  or  any 
agreement  of  the  defendants  to  deliver  coal ;  and  also  relied  on  the 
Statute  of  Frauds. 

At  the  trial  in  the  Court  of  Common  Pleas,  Hale  Remington,  an 
agent  residing  at  Fall  River,  of  the  defendants,  who  lived  in  Philadel- 
phia, being  called  as  a  witness  for  the  plaintiff,  testified  as  follows :  On 
the  3d  of  Jime,  1853,  he  made  a  verbal  contract  with  the  plaintiff  at 
Taunton ;  and  on  the  same  day,  at  Fall  River,  his  clerk  by  his  order 
entered  in  his  book  of  sales,  on  a  page  headed  "  Sales  on  account  of 
F.  Bacon  &  Company,"  the  following  memorandum  (which  was  not 
signed)  :  "  Sold  to  B.  F.  Williams  of  Taunton  500  tons  egg  and  stove 
red  ash ;  200  tons  egg  $3.70 ;  300  tons  stove  $3.70.  Sold  2Q0  tons  egg 
and  stove  white  ash ;  100  lump  $3.60 ;  100  egg  $3.45 ;  100  stove  $3.45." 
On  the  same  day  he  wrote  a  letter  to  the  defendants  (which  was  pro- 
duced upon  the  call  of  the  plaintiff),  in  which  he  said:  "I  sold  this 
morning  to  B.  F.  Williams  of  Taunton,  to  be  shipped  to  Dighton, 
Mass.,  as  follows :  $3.70  for  R.  A.,  and  $3.45  for  W.  A. ;  300  tons  R.  A. 
stove  ;  200  tons  R.  A.  egg ;  100  tons  W.  A.  egg;  100  tons  W.  A.  stove ; 
700  tons,  all  to  be  delivered  before  August  1st.  You  may  ship  it  early 
in  July,  or  before,  if  it  suits  better  to  do  so."  On  the  11th  of  July  he 
received  a  letter  from  the  plaintiff,  asking  for  "  a  statement  of  our  coal 
engagement ; "  to  which  he  replied  by  the  following  letter :  — 

Fall  River,  11  July,  1853. 
Benjamin  F.  Williams,  Esq.,  Taunton. 

Dear  Sii;,  —  Your  favor  of  this  date  is  before  us.  In  reply  would  say  that 
I  have  agreed  to  sell  you  200  tons  red  ash  stove  coal  at  $3.70 ;  300  tons  red  ash 
egg  at  $3.70  ;  100  tons  white  ash  egg  at  $3.45 ;  100  tons  white  ash  stove  $3.45 ; 


SECT.    VI.]  WILLIAMS   V.    BACON.  595 

100  tons  white  ash  lump  $;j.GO.  The  above  prices  to  he  charged  deliverable  on 
board  vessel  at  Philadelphia.  The  coal  is  now  ready  for  delivery,  and  you  will 
please  forward  vessels  as  soon  as  you  please,  and  we  will  put  the  coal  on  board. 
Our  people  will  use  all  exertion  to  procure  vessels  at  j(oin<;  rates  of  freight,  and 
I  presume  they  will  succeed.  If  not,  you  must  send  vessels  for  it.  Freights  are 
now  $1.50  and  $1.45  to  Fall  River.  Coal  is  now  worth  at  Philadelphia  $3.85, 
and  I  think  the  sooner  you  get  your  coal  the  safer  for  you. 

Yours  truly,  Hale  Remington. 

On  the  8tlj  of  Augixst  he  signed  and  gave  the  plaintiif  an  order 
addressed  to  the  defendants,  and  thus  expressed  :  "  Please  deliver  the 
bearer,  for  B.  ¥.  Williams  of  Taunton,  Mass.,  coal  as  he  may  order  it 
from  time  to  time,  —  red  ash,  egg  or  stove,  as  he  may  choose,  500  tons; 
white  ash,  200  tons,  one-half  lum}!,  balance  egg  or  stove."  And  there 
was  evidence  that  the  plaintiff  on  the  16th  of  August  presented  this 
order  to  the  defendants,  who  refused  to  acce})t  it. 

Upon  this  evidence,  Hoar,  J.,  ruled  that  the  action  could  not  be 
maintained,  and  directed  a  verdict  for  the  defendants ;  and  the  plaintiff 
alleged  exceptions. 

M  IT.  JBennett,  for  the  plaintiff.  1.  Remington's  letter  to  the  plain- 
tiff of  July  11th  is  a  sufficient  "note  or  nuiuorandum  in  writing  of  the 
bargain"  to  take  the  case  out  of  the  Statute  of  Frauds.  Rev.  Sts.  c.  74, 
§  4.  It  is  no  objection  that  it  was  made  after  the  contract  was  con- 
cluded, and  so  was  only  a  recital  of  it.  Gale  v.  Nixon,  G  Cow.  445 ; 
Ide  V.  Stanton,  15  Verm.  685;  Jackson  v.  Lowe,  1  Bing.  9;  Saunder- 
son  V.  Jackson,  2  Bos.  &  Pul.  238. 

2.  Remington's  letter  to  the  defendants  of  June  3d  shews  that  the 
contract  declared  uj)on  was  in  fact  made  by  him  in  their  behalf;  and  it 
is  not  necessary  that  the  principal's  name  should  be  signed  to  the  mem- 
orandum ;  it  is  sufficient  if  it  states  the  names  of  the  Aendee  and  of 
the  vendor's  agent.  Batturs  v.  Sellers,  5  Har.  &  Johns.  117  ;  Pugh  v. 
Chesseldine,  11  Ohio,  109;  Allen  v.  Bennet,  3  Taunt.  169;  Whiter. 
Proctor,  4  Taunt.  209 ;  Hicks  v.  Hankin,  4  Esp.  R.  114 ;  Coles  v.  Treco- 
thick,  9  Ves.  234;  Salmon  Falls  Manuf.  Co.  v.  Goddard,  14  How.  454, 
455. 

3.  The  variance  between  the  letter  of  July  11th  and  the  other  papers 
cannot  avail  the  defendants.  If  they  made  any  question  which  con- 
tained the  true  contract,  that  was  a  question  for  the  jury.  The  oidy 
question  here  open  is  whether  there  was  a  memorandum  of  any  con- 
tract. 

2\  D.  Eliot^  for  the  defendants.  1.  The  letter  of  July  ilth  is  not  a 
sufficient  note  or  memorandum  to  take  the  case  out  of  the  statute.  It 
was  not  part  of  the  res  gestce,  but  a  statement,  not  under  oath  and 
made  solely  for  the  benefit  of  the  plaintiff,  of  a  contract  as  to  which 
Remington  had  then  ceased  to  be  agent ;  and  could  not  therefore  affect 
his  principals.     Haven  v.  Brown,  7  Greenl.  424 ;  Fairlie  v.  Hastings,  10 


596  WILLIAMS   V.    BACON.  [CHAP.    I. 

Ves.  (Am.  ed.)  123,  and  note ;  Stiles  v.  Western  Railroad,  8  Met.  46 ; 
Cooley  V.  Norton,  4  Cush.  95 ;  Story  on  Agency,  §§113,  134. 

2.  It  does  not  state  the  parties.  Long  on  Sales,  (Rand's  ed.)  54,  56. 
Smith,  Merc.  Law,  (1st  Am.  ed.)  494  ;  Addison  on  Con.  80 ;  Champion 
V.  Plumraer,  1  New  Rep.  252 ;  Klinitz  v.  Surry,  5  Esp.  R.  267 ;  Bailey 
V.  Ogden,  3  Johns.  399 ;  Sherburne  v.  Shaw,  IN.  H.  157  ;  Nichols  v. 
Johnson,  10  Conn.  192.  If  Remington  had  been  agent  for  other  par- 
ties in  Philadelphia,  this  letter  would  have  been  as  good  against  them 
as  against  the  defendants.  It  does  not  purport  to  be  signed  by  or  in 
behalf  of  any  one  but  Remington.  It  may  bind  him,  but  no  one  else. 
Bradlee  v.  Boston  Glass  Manufactory,  16  Pick.  350  ;  Hawkins  v.  Chace, 
19  Pick.  503  ;  Finney  v.  Bedford  Commercial  Ins.  Co.,  8  Met.  350 ; 
Taber  v.  Cannon,  8  Met.  456 ;  Savage  v.  Rix,  9  N.  H.  263 ;  Graves  v. 
Boston  Marine  Ins.  Co.,  2  Cranch,  419 ;  1  Parsons  on  Con.  48 ;  1  Amer. 
Lead.  Cas.  (3d  ed.)  602. 

3.  It  states  a  different  bargain  from  that  proA^ed  by  Remington's 
testimony  and  the  entry  in  his  book.  Thornton  v.  Kempster,  1  Marsh. 
355 ;  Sievewright  v.  Archibald,  17  Ad.  &  El.  N.  R.  103 ;  Addison  on 
Con.  82;  Smith,  Merc.  Law,  (1st  Am.  ed.)  461,  493.  The  bargain 
proved  was  for  200  tons  e^g^  and  300  tons  stove  red  ash,  and  did  not 
define  where  the  coal  was  to  be  delivered,  thus  leaving  it  to  be  deliv- 
ered at  the  seller's  place  of  business  ;•  the  letter  says,  200  tons  stove  and 
300  tons  Qggt  and  makes  it  all  "  delivei*able  on  board  vessel  at  Phila- 
delphia." The  letter  of  Remington  to  the  defendants  omits  100  tons 
lump ;  calls  for  a  shipment  to  Dighton  by  the  defendants ;  and  a 
delivery  before  the  1st  of  August.  And  the  order  differs  from  all  these 
in  stating  the  kind  as  500  tons  egg  or  stove,  deliverable  to  the  plaintiff 
"  as  he  may  order  it." 

Merrick,  J.  The  presiding  judge  ruled  at  the  trial  that  the  evi- 
dence adduced  by  the  plaintiff  was  insufficient  to  enable  him  to  main- 
tain this  action,  and  directed  a  verdict,  which  was  thereupon  returned, 
for  the  defendants.  To  determine  whether  that  I'uling  was  correct,  it 
is  necessary  to  keep  in  view  the  distinction  between  evidence  of  a  con- 
tract and  evidence  of  a  compliance  with  the  provisions  of  the  Statute 
of  Frauds  in  relation  to  it ;  for  the  defendants  in  attempting  to  sustain 
the  ruling  do  not  now  deny  that  the  testimony  of  Hale  Remington 
afforded  adequate  proof  of  a  verbal  contract  between  the  jjarties, 
whereby  the  plaintiff  agreed  to  purchase  and  the  defendants  to  sell 
the  quantity  and  various  kinds  of  coal  mentioned  in  the  declaration ; 
but  they  insist  that  no  note  or  memorandum  in  writing  was  ever  made 
of  it  and  signed  by  themselves  or  by  any  authorized  person  in  their 
behalf.  And  they  contend  that  the  letter  of  Remington  of  the  11th  of 
July,  1853,  which  is  relied  on  by  the  plaintiff  as  a  sufficient  compliance 
with  the  provisions  of  the  statute  to  give  validity  to  the  contract  and 
make  it  obligatory  upon  them,  cannot  properly  be  allowed  to  have  that 


SECT.    VI.]  WILLIAMS    V.    BACON.  597 

effect ;  first,  becaiise  it  was  no  part  of  the  7'es  ffe.ttcp,  and  constituted  no 
part  of  the  negotiation  between  the  parties,  and  is  only  a  narrative  of 
a  past  transaction ;  and,  secondly,  because  it  does  not  purj)ort  on  its 
face  to  be,  and  is  not  in  fact,  signed  by  them  or  by  any  duly  authorized 
person  in  their  behalf. 

A  note  or  nieinoranduni  in  writing  of  an  oral  contract  is  essentially 
different  from  a  written  contract.  The  latter  sui)ersedes  and  takes  the 
place  of  all  })receding  negotiations,  and  is  conclusive  evidence  of  the 
stipulations  and  bargain  between  the  parties.  But  the  former  may  be 
made  at  any  time  after  the  parties  have  entered  into  engagements  with 
each  other  by  a  verbal  agreement.  Sievewright  v.  Archibald,  17  Ad. 
&  El.  N.  R.  107,  114.  In  the  very  nature  of  such  transactions,  the 
memorandum  must  be  jiosterior  in  point  of  time  to  the  contract  of 
which  it  is  the  record.  And  it  has  accordingly  often  been  determined 
that  documents  and  letters,  though  they  were  all  written  subsequent  to 
the  conclusion  of  the  bargain,  may  be  coupled  together,  if  it  a})pear 
that  they  all  had  relation  to  it,  for  the  purpose  of  shewing  that  a  writ- 
ten memorandum  of  it  was  duly  made  and  signed  by  the  party  to  be 
charged.     Allen  v.  Bennet,  B  Taunt.  169. 

The  evidence  produced  upon  the  trial  in  the  present  case  had  a 
direct  tendency  to  prove  that  a  verbal  contract  for  the  sale  of  coal,  as 
is  alleged  in  the  declaration,  was  made  by  and  between  the  parties  at 
Taunton,  on  the  3d  of  June,  1858.  In  that  negotiation  Remington 
acted  for  the  defendants.  He  was  their  duly  constituted  agent,  and 
was  authorized  in  that  capacity  to  sell  or  to  contract  for  the  sale  of 
coal  on  their  account.  Such  an  agency  implied  the  right  to  do  what- 
ever act  was  necessary  to  make  the  engagements  he  entered  into,  in  the 
exercise  of  the  power  it  conferred  u])on  him,  binding  and  obligatory 
upon  his  principals.  He  was  therefore  legally  comj)etent ;  and  it  was 
lawful  for  him,  after  having  verbally  agreed  with  the  plaintiff  for  the 
defendants  to  sell  him  certain  quantities  of  coal  at  stipulated  prices,  to 
make  a  wi'itten  note  or  memorandum  of  the  bargain,  and  sign  it  for 
them  and  in  their  behalf  And  this  he  might  lawfully  do  at  any  time 
before  his  authority  to  sell,  or  to  complete  a  contract  of  sale,  was 
revoked  or  annulled.  On  the  11th  of  July  he  was  asked  by  the  ])lain- 
tiff  for"a  statement  of  our  coal  engagement;"  to  which  request  he 
replied  in  his  letter  of  that  date.  A  jury  would  be  well  warranted  in 
inferring  from  the  evidence  in  the  case  —  and  indeed  we  think  they 
could  justly  iu'rive  at  no  other  conclusion  —  that  the  ivquest  and  answer 
both  referred  to  the  bargain  which  had  been  previously  made  by  them 
oa  the  3d  of  June  at  Taunton.  If  so,  the  letter  was  a  full  and  com- 
plete memorandum  of  the  bargain.  It  states  explicitly  the  agreement 
to  sell,  the  price,  quantities,  and  description  of  the  different  kinds  of 
coal  sold,  the  place  where  it  was  to  be  delivered,  and  the  time  when 
the  payment  for  it  was  to  be  made. 


598  WILLIAMS   V.    BACON.  [CHAP.    I. 

This  memorandum  therefore,  containing  all  the  elements  of  a  com- 
plete bargain,  was  sufficient  to  meet  the  requirements  of  the  statute,  if 
it  was  signed  in  behalf  of  the  defendants  by  a  person  thereunto  duly 
authorized.  The  letter  was  signed  by  Remington ;  and  he  does  not 
name  his  j^rincipals,  or  express  in  terms  that  in  doing  it  he  acts  as  their 
agent.  But  interpreting  certain  expi-essions  contained  in  it  in  the 
light  afforded  by  a  knowledge  of  the  situation  of  the  parties,  there  can 
be  no  doubt  that  he  wrote  it,  not  for  himself,  but  for  them.  There  is 
nothing  in  the  case  having  any  tendency  to  shew  that  he  ever  made 
any  such  bargain  on  his  own  account,  or  that  he  ever  had  any  such 
coal  of  his  own  to  sell ;  but  it  is  certain  that  he  did  make  such  a  bar- 
gain with  the  plaintiff  on  behalf  of  the  defendants,  and  on  the  same 
day  communicated  to  the  defendants  the  fact  that  he  had  made  it. 
They  i-esided  at  Philadelphia,  and  the  letter  obviously  refers  to  them 
when  the  plaintiff  is  told  in  it  that  the  coal  is  ready  for  delivery  at  that 
place ;  that  "  you  will  forward  vessels  as  soon  as  you  please,  and  we 
will  put  the  coal  on  board.  Our  people  will  use  all  exertions  to  pro- 
cure vessels  at  going  rates  of  freight,  and  I  presume  they  will  siicceed. 
If  not,  you  must  send  vessels  for  it."  These  allusions  could  be  to  no 
persons  but  the  defendants,  who  were  thus  distinctly  pointed  out  as 
the  party  to  be  charged  with  the  obligation  of  performing  the  contract 
referred  to. 

The  signature  of  a  memorandum  which  is  a  sufficient  compliance 
with  the  provisions  of  the  statute  may  be  made  by  an  agent,  though 
he  write  his  own  name  instead  of  that  of  his  principal,  if  it  was  his 
intention  that  the  latter  should  be  bound  by  it.  2  Parsons  on  Con.  291; 
Trueman  v.  Loder,  11  Ad.  &  El.  589,  and  3  P.  &  Dav.  267 ;  White  v. 
Proctor,  4  Taunt.  209. 

There  is  a  very  slight  variance  in  the  statement  of  the  terms  of  the 
contract  between  the  letter  of  the  11th  of  July  and  the  memorandum 
which  Reminoton  caused  to  be  made  of  it  on  his  book  at  Fall  River. 
And  in  his  letter  of  the  3d  of  June  to  the  defendants,  he  omits  to 
mention  the  100  tons  of  lump  coal  which  was  embraced  in  it. 
But  in  reference  to  the  question  arising  lipon  the  bill  of  exceptions, 
these  variances  are  unimportant.  The  plaintiff  made  a  verbal  agree- 
ment with  the  defendants  for  the  purchase  of  a  quantity  of  coal.  He 
subsequently  called  upon  their  agent  for  "  a  statement  of  our  coal 
engagement;"  and  the  letter  of  the  11th  of  July  was  written  in 
answer  to  this  application.  It  was  sent  and  was  received  as  an 
authentic  statement  of  the  terms  and  provisions  of  the  previous 
bargain.  It  is  immaterial  that  it  does  not  in  all  particulars  cori^e- 
spond  with  the  items  contained  in  the  communication  of  Remington 
to  his  principals  under  date  of  the  3d  of  June,  or  in  the  memorandum 
which  he  caused  to  be  placed  on  his  own  book  at  Fall  River.  These 
latter  are  of  importance  only  as  they  serve  to  corroborate  the  other 


SECT.    VI.]  LERNED    V.    WANNEMACHER.  599 

evidence  in  the  case  lulduced  to  prove  that  a  verl)al  contract  had  in 
fact  been  previously  made  by  the  ])arties.  But  having  been  written 
without  the  knowledge  of  the  plaintiff,  he  could  not  have  recognized 
what  was  thus  stated  to  be  true,  or  assented  to  it  as  correct,  and 
of  course  is  not  to  be  bound  by  it.  On  the  other  hand,  it  cannot  be 
doubted  that  in  prej)aring  and  furnishing  to  the  purchaser,  at  his 
request,  a  written  note  of  the  verbal  contract,  the  agent  who  made  it 
would,  with  a  vigilant  and  proper  regard  for  the  rights  of  his  prin- 
cipals, be  careful  to  fall  into  no  error  in  his  representations.  The 
letter  which  he  wrote  to  the  plaintiff  j)rofessed,  and  pui-jjoi'ted  upon 
its  face,  to  recite  with  ])recision  and  accuracy  the  terms  of  the  con- 
tract, and  was  received  and  accepted,  and  has  ever  since  been  relied 
upon,  by.  him  as  a  true  and  correct  statement  of  it.  Both  parties 
having  thus  affirmed  it  and  assented  to  its  correctness,  the  memoran- 
dum contained  in  the  letter  of  the  11th  of  July  must  be  considered 
as  conclusive  evidence  of  the  previous  verbal  bargain. 

Exceptions  sustained. 


THOMAS    P.    LERXED    and    Another    v.    CHARLES    WxVN- 
NEMACHER   and   Another. 

Supreme  Judicial  Court  of  Massachusetts,  November,  1864. 

[Reported  in  9  Allen,  412.] 

Contract  brought  to  recover  damages  for  the  failure  to  deliver  a 
qiiantity  of  coal  sold  by  the  defendants  to  the  plaintiffs.  One  ground 
of  defence  was  that  the  contract  was  not  binding  because  not  executed 
in  conformity  to  the  Statute  of  Fraixds. 

At  the  trial  in  the  Superior  Court  before  Morton,  J.,  the  plaintiffs 
introduced  evidence  tending  to  shew  the  following  ficts:  Albert 
Betteley  was  authorized  to  sign  contracts  for  the  sale  of  coal  in  behalf 
of  the  defendants,  who  were  commission  merchants  in  Philadelphia 
under  the  firm  of  Wannemacher  &  Maxfield.  On  the  31st  of  March, 
1863,  the  plaintiffs  made  a  parol  contract  for  the  purchase  of  1000 
tons  of  coal  of  Betteley,  as  agent  of  the  defendants,  according 
to  the  terms  of  the  Avritten  memorandum  hereinafter  set  out.  The 
plaintiffs  then  signed  and  delivered  to  Betteley,  as  agent  of  the 
defendants,  a  memorandum  of  the  contract,  partly  written  and  partly 
printed,  as  follows,  the  written  parts  being  here  put  in  italics :  — 

Coal,  when  delivered  on  board  of  vessels,  boats,  or  barges,  to  be  in  all 
respects   at  the   pureliaser's  risk  ;    bills  of   lading,  or  ofhor  regular  testimony 


600  LERNED   V.    WANNEMACHER.  [CHAP.    I. 

of  shipment,  to  be  proof  of  such  delivery,  both  as  to  time  and  quantity.  Each 
cargo  of  coal  to  be  settled  for  from  time  to  time  as  delivered,  in  the  mode 
specified  in  the  contract.  Captains  of  vessels  sent  by  purchasers  for  their  coal 
to  bring  written  orders,  and  take  each  his  regular  turn  in  loading.  All  possible 
dispatch  will  be  given  in  loading,  but  no  claims  will  be  allowed  for  demurrage, 
nor  for  the  consequences  of  unavoidable  delay.  No  responsibility  assumed  as 
regards  procuring  vessels,  boats,  or  barges ;  but  every  exertion  will  be  used  to 
engage  them.  Every  effort  will  be  made  for  the  fulfilment  of  this  contract ;  but 
if  prevented  or  obstructed  by  breaches  or  other  unavoidable  occurrences  on  the 
canals  or  railroads  or  at  the  mines,  or  by  combinations,  strikes,  or  turn-outs 
among  miners,  boatmen,  or  laborers,  no  claim  for  damages  will  be  allowed. 
Wannemacher  &  Maxfield,  commission  merchants,  Philadelphia.  Boston, 
March  31,  1863. 

On  the  above  terms  and  conditions,  please  deliver  on  board  at  your  wharves 
at  Philadelphia,  to  be  shipped  to  Camhridgeport,  10  feet  of  water,  7  bridges, 
1000  tons  .  .  .  Sivatara  ;  800  Stove,  200  Egg ;  Swatara  $4.50. 

Terms  cash,  or  approved  paper  at  interest  added  from  date  of  bill 

of  lading  or  other  proof  of  shipment ;    United  States  tax  to  be  added.      We  will 

send  our  own  vessels.     After  Ji7-st  cargo  is  shipped,   the  purchaser  has  the  right 

to  refuse  the  balance  if  not  satisfactory. 

T.  P.  Lerned  &  Son. 

At  the  same  time  Betteley  signed  the  name  of  "  Wannemacher  & 
Maxfield,  by  Albert  Betteley  "  to  a  memorandum  precisely  similar  to 
the  above  in  every  respect,  except  that  the  name  of  the  plaintiffs  was 
not  signed  to  it,  and  delivered  the  same  to  the  plaintiffs.  Two  or 
three  weeks  afterwards  Betteley,  as  agent  of  the  defendants,  wrote 
upon  the  back  of  the  memorandum  delivered  to  him  by  the  plaintiffs 
these  words :  "  To  be  shipped  immediately,  if  vessels  are  not  sent ; " 
and  the  plaintiffs  signed  the  same,  and  redelivered  the  memorandum 
to  him.  Both  of  the  above  papers  were  put  in  evidence  by  the  plain- 
tiffs, the  one  signed  by  them  being  produced  by  the  defendants  on 
notice.  The  price  of  coal  subsequently  increased  in  the  market,  and 
the  defendants  refused  to  deliver  the  said  lOOO  tons. 

Upon  the  introduction  of  this  evidence  the  judge  ruled  that  the 
action  could  not  be  maintained,  and  a  verdict  was  accordingly  taken 
for  the  defendants.     The  plaintiffs  alleged  exceptions. 

G.  A.  /Somerbij,  for  the  plaintiffs,  besides  cases  cited  in  the  opinion, 
cited  Brettel  v.  Williams,  4  Welsh.,  Hurlst.  &  Gord.  623  ;  Jackson  v. 
Lowe,  1  Bing.  9 ;  Johnson  v.  Dodgson,  2  M,  &  W.  653 ;  Tallman  v. 
Franklin,  14  N.  Y.  584. 

C.  A.  Welch,  for  the  defendants.  There  was  no  sufficient  memo- 
randum of  the  contract  in  writing  signed  by  the  defendants  or  their 
agent.  The  paper  signed  by  Betteley  is  not  and  does  not  profess  to 
be  a  memorandum  of  a  bargain.  The  name  of  the  plaintiffs  is  not 
contained  in  it;  there  is  no  request  to  deliver  to  any  person  in 
particular ;  and  there  is  no  promise.  The  paper  signed  by  the  plain- 
tiffs  is    simply  a  request  by  them  :    there  is  no  acceptance  by  the 


SECT.    VI.]  LERNED    V.    WANNEMACHER.  601 

defendants,  and  consequently  no  contract.  The  two  papers  cannot  be 
taken  together,  because  neither  refers  to  the  other:  they  do  not 
harmonize  in  substance  or  forai ;  and  they  cannot  be  connected  by 
parol.     See  Morton  v.  Dean,  13  Met.  385  ;    Kenworthy  v.  Schofield, 

2  B.  &  C.  945 ;  Salmon  Falls  Manuf.  Co.  v.  Goddard,  14  How.  461 ; 
First  Baptist  Church  v.  Bigelow,  16  Wend.  28  ;  Talman  v.  Franklin, 

3  Duer  R.  395  ;  O'Donnell  v.  Leeman,  43  Maine,  158.  Even  if  the 
two  papers  can  be  taken  together  and  harmonized  by  corrections,  they 
make  no  sufficient  memorandum  of  a  contract.  They  shew  no  assent 
or  agi-eement  on  the  part  of  the  defendants.  The  fact  of  there  having 
been  any  bargain  on  their  part  rests  entirely  in  ])arol,  and  this  is  what 
the  statute  seeks  to  avoid.  Osborn  v.  Phelj)S,  19  Conn.  63,  73 ; 
Bailey  v.  Ogden,  3  Johns.  399,  400,  418.  Besides,  even  if  there  were  a 
sufficient  memorandum,  the  contract  shewn  thereby  was  subsequently 
changed  by  a  paper  signed  by  the  plaintiffs  only,  which  constituted  a 
new  contract,  capable  of  being  enforced  against  the  plaintiffs,  but  not 
against  the  defendants. 

Hoar,  J.  The  ruling  to  which  exce])tions  were  taken  at  the  trial 
was  this :  that  the  i)laintiffs  could  not  maintain  their  action  upon  the 
contract  set  forth  in  the  declaration,  because  it  was  a  contract  for  the 
sale  of  merchandise  for  the  price  of  more  than  fifty  dollars,  and  there 
was  no  acceptance  of  any  part  of  the  goods,  or  giving  any  thing  in 
earnest  to  bind  the  bargain  or  part  i)ayment,  and  no  sufficient  note  or 
memorandum  in  writing  of  the  bargain  made  and  signed  l>y  the 
defendants  or  by  any  person  thereunto  by  them  lawfully  authorized. 
Gen.  Sts;  c.  105,  §  5.  And  the  question  before  us  is  of  the  sufficiency 
of  the  memorandum  produced. 

The  first  objection  is  that  neither  the  memorandum  signed  by  the 
purchasers  and  delivered  to  the  sellers,  nor  the  counterpart  signed  by 
the  sellers  and  delivered  to  the  ])urchasers,  contains  in  itself  a  com- 
plete statement  of  the  bargain ;  that  there  is  nothing  in  the  papers 
themselves  by  which  they  can  be  connected,  and  it  is  not  sufficient  to 
connect  them  by  j^arol ;  and  that  if  connected,  they  are  only  orders, 
and  do  not  amount  to  a  contract. 

On  examining  the  meniorandum  retained  by  the  sellers,  which  is 
signed  by  the  plaintiffs,  we  think  it  is  a  complete  memorandum  of  the 
bargain  proved,  and  would  undoubtedly  have  been  sufficient  in  an 
action  by  the  defendants  against  the  plaintiffs.  It  must  be  observed 
that  the  contract  itself,  and  the  memorandum  which  is  necessary  to  its 
validity  under  the  Statute  of  Frauds,  are  in  their  nature  distinct  things. 
The  statute  presu])poses  a  contract  by  i)arol.  Marsh  v.  Hyde,  3  Gray, 
333.  The  contract  may  be  made  at  one  time,  and  the  note  or  memo- 
randum of  it  at  a  subsequent  time.  The  contract  may  be  proved  by 
parol,  and  the  memorandum  may  be  sup])lied  by  documents  and  letters 
written  at  various  times,  if  they  all  a])i)ear  to  have  relation  to  it,  and 


602  LERNED    V.    WANNEMACHER.  [CHAP.   I. 

if  coupled  together  they  contain  by  statement  or  reference  all  the 
essential  parts  of  the  bargain,  signed  by  the  party  to  be  charged  or  his 
agent.  Williams  v.  Bacon,  2  Gray,  387.  Now  it  was  proved  by  parol 
testimony  that  the  contract  declared  on  was  made  orally  by  the  defend- 
ants, through  their  agent,  with  the  plaintiff;  and  that  the  memorandum 
was  delivered  to  the  defendants  by  the  plaintiffs  as  a  statement  of  the 
terms  of  the  bargain.  In  the  printed  part  it  is  spoken  of  as  "  this  con- 
tract "  and  "  the  contract."  It  recites  that  "  every  effort  wdll  be  made 
for  the  fulfilment  of  this  contract."  It  then  contains  a  request  to  the 
defendants  to  deliver  the  coal  "  on  the  above  terms  and  conditions " 
"at  your  wharves  at  Philadelphia,"  —  the  defendants'  place  of  business, 
"to  be  shipped  to  Cambridgeport,"  —  the  plaintiffs'  place  of  business. 
The  quantity,  price,  and  terms  of  payment  are  then  stated.  It  says, 
"  We  will  send  our  own  vessels,"  an  agreement  to  receive  ;  and  con- 
cludes with  an  option  to  "  the  purchaser "  to  refuse  all  but  the  first 
cargo  if  that  is  not  satisfactory.  That  there  is  a  contract,  —  a  seller,  a 
purchaser,  a  thing  sold,  a  price,  a  place  of  deliA'ery,  and  terms  of  pay- 
ment,—  all  sufficiently  appear.  It  is  true  that  part  of  the  paper  is  in 
form  an  order ;  but  we  can  have  no  doubt  that,  taking  the  Avhole 
together,  it  shews  an  agreement  to  purchase.  As  was  said  by  Mansfield, 
C.  J.,  in  Allen  v.  Bennet,  3  Taunt.  169 :  "  The  defendant's  counsel  dis- 
tinguishes between  an  order  and  an  agreement  to  buy ;  but  if  I  go  to 
a  shop  and  order  goods,  do  I  not  agree  to  buy  them  ?  " 

The  only  defect  then  is  the  want  of  the  signature  of  the  defendants 
or  that  of  their  authorized  agent.  If  this  had  been  the  only  paper 
executed,  it  would  deserve  serious  consideration  whether,  if  shewn  to 
have  been  made  as  a  memorandum  of  a  bargain  concluded  between 
the  parties,  delivered  as  such  by  the  plaintiffs  and  accepted  as  sucli  by 
the  agent  of  the  defendants,  the  printed  name  of  the  defendants  would 
not  have  been  sufficient,  upon  the  authorities,  to  answer  the  require- 
ments of  the  statute  as  a  signature  by  them.  Saunderson  v.  Jackson, 
3  Esp.  R.  180;  s.  c.  2  B.  &  P.  238.  But  we  do  not  put  the  case  on 
this  ground,  because  the  counterpart  of  the  contract  delivered  by  the 
defendants  to  the  plaintiffs  is  signed  by  them  through  their  agent 
Betteley.  As  a  sei»arate  paper,  that  is  in  its  turn  defective  by  reason 
of  not  containing  the  name  of  the  purchaser.  But  the  two  papers  were 
prepared  at  one  time,  and  delivered  simultaneously  as  parts  of  the 
same  transaction.  The  one  produced  by  the  plaintiffs  is  signed  so  as 
to  chai-ge  the  defendants.  They  gave  to  the  defendants  one  by  which 
they  were  themselves  bound.  The  two  shew  clearly,  when  construed 
by  their  own  language  as  applied  to  the  existing  circumstances,  which 
party  was  the  seller  and  which  the  jDurchaser.  And  we  can  see  no 
reason  upon  principle  or  authority  why  they  should  not  have  the  same 
effect  as  if  both  the  signatures  were  to  the  same  paper.  The  intrinsic 
evidence  which  they  afford  that  they  refer  to  the  same  transaction  is 


SECT.    Vr.]  LERNED   V.    WANNEMACHER.  603 

very  strong  and  competent  for  the  consirleration  of  a  jury ;  and  in  the 
absence  of  all  proof  that  a  precisely  similar  contract  was  made  by 
either  party  with  any  other  i)erson,  Avould  be  extremely  cogent. 

The  case  does  not  much  resemble  any  of  those  cited  for  the  defend- 
ants, in  which  the  doctrine  has  been  stated  that  when  the  memorandum 
is  made  out  from  several  pajjers  they  must  be  shewn  upon  their  face  to 
have  a  mutual  relation  to  each  other;  and  tliat  this  relation  cannot  be 
established  by  extrinsic  evidence.  This  is  the  rule  of  the  text-books 
(2  Kent's  Com.  6th  ed.,  511 ;  Browne  on  Statute  of  Frauds,  §  350) ; 
and  its  general  correctness  is  well  settled.  Morton  v.  Dean,  13  Met. 
385.  Most  of  the  cases  to  which  we  have  been  referred  have  been 
those  of  sales  at  auction,  whore  the  conditions  of  sale  were  not  con- 
tained in  or  annexed  to  the  memorandum  which  was  signed.  Here  the 
whole  terms  and  conditions  of  the  l)argain  are  stated  alike  in  the  two 
copies  of  the  memorandum,  one  of  which  is  signed  by  each  party. 

There  are  however  two  specific  objections  which  deserve  attention. 
In  each  jjaper  the  statement  is  made,  "  We  will  send  our  own  vessels ;" 
and  as  they  are  signed,  one  by  the  plaintiffs  and  the  other  by  the 
defendants,  it  is  urged  that  the  meaning  of  the  word  "we"  becomes 
uncertain,  or  that  the  two  parts  of  the  memorandum  are  made  contra- 
dictory. Beside  this,  one  part  of  the  contract  was  altered  by  the  addi- 
tional agreement  written  by  the  defendants'  agent  and  signed  by  the 
plaintiffs,  "  to  be  shipped  immediately,  if  vessels  are  not  sent;"  and  no 
corresponding  alteration  has  been  signed  by  the  defendants. 

The  first  difiiculty  seems  to  be  capable  of  a  satisfactory  solution. 
The  printed  part  of  the  memorandum  clearly  contemplates  that  the 
shipment  of  the  coal  is  to  be  made  in  vessels  to  be  furnished  by  the 
vendors,  although  they  assumed  no  responsibility  about  the  vessels 
except  reasonable  diligence  in  procuring  them.  The  insertion  of  the 
written  clause,  "  We  will  send  our  own  vessels,"  could  only  be  explained 
as  importing  a  change  in  this  respect.  In  the  part  of  the  contract 
signed  by  the  plaintifis,  "we"  would  mean  the  purchaser.  In  the 
other  part  the  phrase  follows  the  expression  "  your  wharves,"  when 
speaking  of  the  wharves  of  the  defendants;  and  "we"  is  thus  used  in 
contradistinction  from  "  you,"  the  vendors.  The  agent  of  the  vendors 
signs  the  paper;  but  still,  if  not  with  perfect  grammatical  correctness 
of  expression,  it  is  sutficiently  obvious  that  in  using  the  word  "we"  he 
means  the  purchasers. 

The  additional  clause  written  upon  the  part  of  the  memorandum 
retained  by  the  defendants  presents  a  more  difiicult  question,  though  it 
shews  very  clearly  who  were  meant  by  "we"  in  the  part  of  the  con- 
tract just  considered.  But  it  is  obvious  that  it  was  not  meant  to 
impair  the  contract  which  had  been  made.  It  is  an  additional  stijtula- 
tion  to  take  effect  upon  a  contingency  which  has  not  haj)pened.  The 
evidence  shewed  that  vessels  were  sent  by  the  })laintifts.     And  if  the 


604  SANBORN   V.    FLAGLER.  [CHAP.    I. 

contingency  had  happened,  it  was  only  the  substitution  of  a  new  mode 
of  ])erformance  of  which  the  defendants  or  phiintiffs  might  have  availed 
themselves,  even  if  made  only  by  parol.  Cummings  v.  Arnold,  3  Met. 
486 ;  Stearns  v.  Hall,  9  Cush.  31.  If  it  were  not  binding  on  the 
defendants  because  no  memorandum  of  it  was  signed  by  them,  it  could 
not  prevent  the  plaintiifs  from  enforcing  the  original  contract.  It  is 
obviously  inadmissible  for  the  defendants  to  set  it  up  as  changing  the 
contract  as  evidenced  by  the  completed  memorandum,  and  at  the  same 
time  to  deny  its  obligation  for  want  of  their  own  signature. 

It  was  held  by  the  English  Court  of  Exchequer  in  the  recent  case  of 
Bluck  V.  Gompertz,  7  Welsh.,  Hurlst.  &  Gord.  862,  that  where  a  correc- 
tion was  made  upon  the  memorandum  of  a  contract  by  the  defendant, 
and  signed  only  by  the  plaintiff,  the  original  signature  of  the  defendant 
was  a  sufficient  signing  under  the  statute.  That  decision  would  be 
applicable  to  the  present  case  if  the  memorandum  had  been  contained 
in  one  paper,  or  if  the  indorsement  had  been  made  upon  the  part  con- 
taining the  signature  of  the  defendants'  agent.  It  is  more  doubtful 
whether  it  can  be  held  to  have  the  same  effect  where  the  memorandum 
is  contained  on  separate  papers,  and  we  do  not  put  the  decision  on  that 
ground. 

The  other  grounds  of  exception  taken  at  the  trial  have  not  been 
insisted  on  by  the  jjlaintiff 's  counsel,  and  are  clearly  untenable. 

JEkcceptions  sustained.^ 


S.   T.   SANBORN  and  Another  v.  JOHN  H.   FLAGLER. 
Supreme  Judicial  Court  of  Massachusetts,  November,  1864. 

[Reported  in  9  Allen,  474.] 

Contract  brought  originally  by  the  plaintiffs,  who  were  partners 
under  the  firm  of  Sanborn,  Richardson,  &  Co.,  against  John  H.  Flagler 

and Holdane,  as  partners  under  the  firm  of  Holdane  &  Co.     The 

writ  was  served  only  upon  Flagler,  and  he  alone  appeared  to  defend 
the  action.  The  plaintiffs  alleged  that  the  defendants  had  refused  to 
deliver  to  them  fifty  tons  of  best  refined  iron,  in  accordance  with  the 
terms  of  a  written  agreement  entered  into  between  them. 

The  defendant  in  his  answer  set  up  among  other  defences  the 
Statute  of  Frauds. 

At  the  trial  in  the  Superior  Court  before  Morton,  J.,  Josiah  B. 
Richardson,  one  of  the  plaintiffs,  was  called  to  the  stand  and  produced 

1  See  Rhoades  v.  Castner,  12  Allen,  130.  —  Ed. 


SECT.    VI.]  SANBORN    V.    FLAGLER.  605 

to  be  oifored  in  evidence  a  paper,  of  which  the  following  is  a  copy  as 
near  as  can  be  made  :  — 

Will  deliver  S.  R.  &  Co.  best  refined  iron  50  tons  within  90  days  —  at  5  ct 
p  lb  4  of  cash.  Plates  to  be  10  to  16  inches  wide  and  9  ft  to  11  long.  This 
oflFer  good  till  2  o'clock  Sept.  11,  1862. 

J.  H.  F.        J.  B.  R. 

The  witness  was  proceeding  to  testify  in  relation  to  the  execution 
and  delivery  of  the  same,  when  the  defendant  objected  that  the  paper 
was  not  on  its  face  or  in  fact  any  siifticient  note  or  memorandum  in 
writing  of  the  alleged  bargain  signed  by  the  party  to  be  charged,  and 
that  parol  evidence  was  not  admissible  to  add  to,  modify,  or  explain 
the  paper  so  as  to  make  it  such  a  memorandum  as  could  be  admitted. 
But  the  judge  ruled  that  the  paper  w^as  a  sufficient  note  or  memoran- 
dum under  the  statute,  and  would  bind  the  defendant  if  he  was  a 
member  of  the  firm  of  Holdane  &  Co.  The  witness  then  testified  that 
the  agreement  was  Avritten  by  him,  and  that  he  and  the  defendant  signed 
their  initials,  the  defendant  writing  the  initials  "  J.  II.  F.,"  and  he  the 
initials  "  J.  B.  R.,"  and  that  before  two  o'clock  on  the  day  named,  and 
before  the  defendant  left  the  plaintiffs'  office,  he  accepted  the  prop- 
osition, and  so  stated  to  the  defendant  verbally.  The  witness  also 
testified  that  he  signed  his  initials  on  behalf  of  the  plaintiffs,  and  tliat 
he  understood  the  defendant  to  sign  for  the  firm  of  Holdane  &  Co. 
This  evidence  was  not  controverted  by  the  defendant. 

The  judge  ruled  that  said  paper  with  the  explanation  given,  if 
Richardson  was  believed,  was  a  sufficient  note  or  memorandum,  and 
was  binding  on  the  defendant  if  the  jury  found  him  to  be  a  partner  as 
alleged. 

The  jury  found  a  verdict  for  the  plaintiffs,  and  the  defendant  alleged 
exceptions. 

C.  T.  Russell,  for  the  defendant,  cited  Abeel  v.  Radcliff",  13  Johns. 
297 ;  Goss  v.  Nugent,  5  B.  &  Ad.  58 ;  Watenuan  v.  Meigs,  4  Cush. 
497 ;  Champion  v.  Plummer,  1  New  R.  252 ;  Sherburne  v.  Shaw, 
1  N.  H.  157;  Webster  v.  Ela,  5  N.  H.  540;  Bailey  v.  Ogdens, 
3  Johns.  419  ;  Nichols  v.  Johnson,  10  Conn.  192 ;  Morton  v.  Dean, 
13  Met.  385 ;  Brown  v.  Parker,  7  Allen,  337  ;  Shaw  v.  Finney,  13  Met. 
453 ;  Sylvester  v.  Smith,  9  Mass.  119 ;  Pentz  v.  Stanton,  10  Wend. 
275  ;  Colly,  on  Part.  §  414 

A.  A.  Banney,  for  the  plaintiffs. 

BiGELOW,  C.  J.  The  note  or  memorandum  on  which  the  plaintiflTs 
rely  to  maintain  their  action  contains  all  the  requisites  essential  to 
constitute  a  binding  contract  within  the  Statute  of  Frauds.  It  is  not 
denied  by  the  defendant  that  a  verbal  acceptance  of  a  written  offer  to 
sell  merchandise  is  sufficient  to  constitute  a  complete  and  obligatoiy 
agreement,  on  which  to  charge  the  person  by  whom  it  is  signed.     In 


606  SANBORN  V.    FLAGLER.  [CHAP.  I. 

such  case,  if  the  memorandum  is  otherwise  sufficient  when  it  is 
assented  to  by  him  to  wdioni  the  proposal  has  been  made,  the  con- 
tract is  consummated  by  the  meeting  of  the  minds  of  the  two  parties, 
and  the  evidence  necessary  to  render  it  valid  and  capable  of  enforce- 
ment is  supplied  by  the  signature  of  the  party  sought  to  be  charged 
to  the  offer  to  sell.  Indeed,  the  rule  being  well  settled  that  the 
signature  of  the  defendant  only  is  necessary  to  make  a  binding  con- 
tract within  the  provisions  of  the  statute  relating  to  the  sales  of  mer- 
chandise, it  necessarily  follows  that  an  oifer  to  sell  and  an  express 
agreement  to  sell  stand  on  the  same  footing,  inasmuch  as  the  latter, 
until  it  is  accepted  by  the  other  party,  is  in  effect  nothing  more  than 
a  proposition  to  sell  on  the  terms  indicated.  The  acceptance  of  the 
contract  by  the  party  seeking  to  enforce  it  may  always  be  proved  by 
evidence  aliunde. 

The  objections  on  which  the  defendants  rely  are  twofold.  The  first 
is  that  the  note  or  memorandum  <Ioes  not  set  foi'th  upon  its  face,  in 
such  a  manner  as  to  be  understood  by  the  court,  the  essential  elements 
of  a  contract.  But  this  position  is  not  tenable.  The  nature  and 
description  of  the  merchandise,  the  quantity  sold,  the  jDrice  to  be  paid 
therefoi-,  the  terms  of  payment,  and  the  time  within  which  the  article 
was  to  be  delivered,  are  all  cleai-ly  set  forth.  But  it  is  urged  that  the 
paper  does  not  disclose  which  of  the  parties  is  the  purchaser  and 
which  the  seller,  and  that  no  purchaser  is  in  fact  named  in  the  paper. 
This  would  be  a  fatal  objection  if  well  founded.  There  can  be  no 
contract  or  valid  memorandum  of  a  contract  which  does  not  shew 
who  are  the  contracting  parties.  But  there  is  no  such  defect  in  the 
note  or  memorandum  held  by  the  plaintiffs.  The  stipulation  is 
explicit  to  deliver  merchandise  to  S.  R.  &  Co.  It  certainly  needs  no 
argument  to  demonstrate  tliat  an  agreement  to  deliver  goods  at  a 
fixed  price  and  on  specified  terms  of  payment  is  an  agreement  to 
sell.  Delivery  of  goods  at  a  stipulated  price  constitutes  a  sale ;  an 
agreement  for  such  delivery  is  a  contract  of  sale.  Nor  can  there  be 
any  doubt  raised  as  to  the  intrinsic  import  of  the  memorandum  con- 
cerning the  character  or  capacity  in  which  the  parties  are  intended 
to  be  named.  A  stipulation  to  deliver  merchandise  to  a  person 
clearly  indicates  that  he  is  the  purchaser,  because  in  every  valid  sale 
of  goods  deliA'Cry  must  be  made  by  the  vendor  to  the  vendee.  We 
can  therefore  see  no  ambiguity  in  the  insertion  of  the  name  of  the 
purchaser  or  seller.  The  case  is  much  stronger  in  favor  of  the  validity 
of  the  memorandum  in  this  respect  than  that  of  Salmon  Falls 
Manuf  Co.  v.  Goddard,  14  How.  446.  There  only  the  names  of  the 
parties  were  inserted,  without  any  word  to  indicate  which  was  the 
buyer  and  which  was  the  seller.  It  was  this  uncertainty  in  the  memo- 
randum which  formed  the  main  ground  of  the  very  able  dissenting 
opinion  of  Mr.  Justice  Curtis  in  that  case.     So  in  the  leading  case  of 


SECT.    VI.]  SANBORN   V.    FLAGLER.  607 

Bailey  v.  Ogdens,  3  Johns.  899,  there  was  nothing  in  the  memoran- 
dum to  shew  which  of  tlie  two  parties  named  agreed  to  sell  the  mer- 
chandise. But  in  the  case  at  bar,  giving  to  the  paper  a  reasonable 
interpretation,  as  a  brief  document  drawn  up  in  the  haste  of  business 
and  intended  to  express  in  a  tew  words  the  temis  of  a  bargain,  we 
cannot  entertain  a  doubt  that  it  indicates  with  sufficient  clearness  that 
the  plaintiffs  were  the  purchasers,  and  the  delendant  the  seller  of  the 
merchandise,  on  the  terms  therein  expressed.  Indeed  we  can  see  no 
reason  why  a  written  agreement  by  one  ])arty  to  deliver  goods  to 
another  jnirty  does  not  as  clearly  shew  that  the  latter  is  the  ])ur- 
chaser  and  the  former  the  seller  as  if  the  agreement  had  been  in 
express  terms  by  one  to  sell  goods  to  the  other. 

The  other  objection  to  the  memorandum  is  that  the  name  of  the 
party  sought  to  be  charged  does  not  appear  on  the  face  of  the  paper. 
If  by  this  is  meant  that  the  signatures  of  all  the  persons  who  are 
named  as  defendants  are  not  affixed  to  the  memorandum,  or  that  it  is 
not  signed  with  the  coj)artnership  name  under  which  it  is  alleged  that 
the  persons  named  as  defendants  do  business,  the  fact  is  certainly  so. 
But  it  is  not  essential  to  the  validity  of  the  memorandum  that  it 
should  be  so  signed.  An  agent  may  write  his  own  name,  and  thereby 
bind  his  principal ;  and  parol  evidence  is  competent  to  prove  that  he 
signed  the  memoramlum  in  his  capacity  as  agent.  On  the  same  prin- 
cii)le,  a  partner  may  by  his  individual  signature  bind  the  firm,  if  the 
contract  is  within  the  scope  of  the  business  of  the  firm,  which  may  be 
shewn  by  extrinsic  evidence.  Soames  v.  Spencer,  1  D.  &  R.  32 ;  Long 
on  Sales,  38 ;  Browne  on  Statute  of  Frauds,  §  367  ;  Higgins  v.  Senior, 
8  M.  &  W.  834 ;  Williams  v.  Bacon,  2  Gray,  387,  393.  Besides,  in 
the  case  at  bar,  the  action  is  in  effect  against  Flagler  alone.  He  only 
has  been  served  with  process  and  appears  to  defend  the  action. 
Whether  he  signed  as  agent  for  the  firm  or  in  his  individual  capacity 
is  immaterial.     In  either  aspect  he  is  liable  on  the  conti'act. 

It  is  hardly  necessary  to  add  that  the  signature  is  valid  and  binding, 
though  made  with  the  initials  of  the  party  only,  and  that  parol 
evidence  is  admissible  to  explain  and  a]i])ly  them.  Phillimore  v.  Barry, 
1  Camp.  513;  Salmon  Falls  Manuf.  Co.  v.  Goddard,  icbi  siqyra  ;  Barry 
V.  Coombe,  1  Pet.  640.  deceptions  overruled. 


608  WHITTIER   V.    DANA.  [CHAP.    I. 


SETH    WHITTIER     aot)     Another    n.    JAMES    DANA     and 

Another. 

Supreme  Judicial  Court  of  Massachusetts,  January  Term,  1865. 

[Repo)-ted  in  10  Allen,  326.] 

Contract  upon  a  written  agreement  dated  October  9th,  1863,  by 
which  the  defendants  agreed  to  sell  to  the  plaintiffs  two  hundred 
thousand  of  Brewer  bricks,  more  or  less,  at  18.25  a  thousand,  cash  on 
delivery,  to  be  delivered  any  time  before  December  20th.  The  declara- 
tion alleged  that  the  plaintiffs  demanded  the  delivery  of  the  bricks 
according  to  the  contract,  and  were  ready  and  offered  to  pay  for  the 
same ;  but  the  defendants  being  unable  then  to  deUver  them,  it  was 
specially  agreed  between  the  parties  that  the  time  for  the  delivery 
should  be  extended,  and  it  was  extended  from  time  to  time  by  special 
agreement  down  to  the  time  of  suing  out  this  wiit,  when  the  defend- 
ants refused  to  deliver  the  bricks. 

The  defendants  in  their  answer  denied  each  and  every  allegation  of 
the  declaration. 

At  the  trial  in  the  Superior  Court  before  Russell,  J.,  before  any  testi- 
mony was  offered  the  defendants  objected  that  the  action  could  not  be 
maintained ;  but  the  objection  was  overruled. 

The  plaintiffs  then  proved  the  written  contract,  and  introduced  evi- 
dence tending  to  shew  an  oral  extension  of  the  time  of  delivery  till 
the  opening  of  river  navigation  in  the  spring ;  whereupon  the  defend- 
ants requested  the  court  to  rule  that  the  plaintiffs  had  failed  to  main- 
tain their  action ;  but  this  was  refused. 

Certain  evidence  was  introduced  and  offered  as  to  the  value  of 
Brewer  bricks  and  other  bricks  in  the  spring  of  1864,  the  time  when 
the  defendants  finally  refused  to  deliver  said  bricks;  and  questions 
arose  concerning  the  same,  which  are  now  immaterial. 

The  defendants  requested  the  court  to  instruct  the  jury,  amongst 
other  things,  as  follows:  1.  Unless  the  jury  are  satisfied  iipon  the  evi- 
dence that  there  was  an  agreement  for  an  extension  of  the  time  of 
delivery  of  the  bricks  and  of  payment  therefor,  the  j^laintifls  cannot 
maintain  this  action ;  2.  If  the  jury  shall  find  that  there  was  a  parol 
agreement  for  an  extension  of  the  written  contract,  the  plaintiffs  can- 
not recover  upon  such  parol  agreement  upon  their  declaration,  because 
the  same  is  not  in  writing.  The  judge  gave  the  first  instruction  as 
requested,  and  declined  to  give  the  second. 

The  jury  returned  a  verdict  for  the  plaintiffs,  and  the  defendants 
alleged  exceptions. 


SECT.    VI,]  WHITTIER    V.    DANA.  609 

H.  C.  Siitchins,  for  the  defendants. 

0.  Stevens,  for  tlie  plaintiifs. 

Hoar,  J.  The  i)rincipal  question  in  tliis  case  is  governed  by  the 
decisions  of  this  court  in  Cummings  v.  Arnold,  3  Met.  486,  and  Stearns 
V.  Hall,  9  Cush.  31,  in  both  of  which  the  doctrine  was  recognized  and 
affirmed  that,  where  a  written  contract  Avithin  the  Statute  of  Frauds 
has  been  varied  by  a  subsequent  parol  agreement,  affecting  the  mode  of 
performance  only,  the  action  can  be  maintained  only  upon  the  written 
contract ;  because  to  allow  a  party  to  sue  partly  on  a  written  and  partly 
on  an  oral  agreement  would  be  in  direct  contravention  of  the  statute. 
But  it  Avas  further  held  in  Cummings  v.  Arnold  that,  in  defence  to  an 
action  on  the  written  contract,  the  defendant  may  shew  that  he  has 
performed  it  according  to  an  oral  agreement  for  a  substituted  perform- 
ance, or  being  ready  to  do  so  was  prevented  by  the  act  of  the  plaintiff. 
And  in  Stearns  v.  Hall  a  plaintiff  who  declared  upon  the  original  con- 
tract in  writing  was  allowed  to  prove,  in  answer  to  the  defence  t\\?X  he 
had  not  ])erformed  the  contract  according  to  its  terms,  that  a  ditlerent 
performance  had  been  agreed  to  be  substituted  by  parol,  and  that  he 
had  j^erformed  or  had  been  ready  to  perform  the  substituted  agreement. 
The  whole  doctrine  is  well  stated,  and  the  authorities  collected  and 
reviewed,  in  Browne  on  Statute  of  Frauds,  (2d  ed.)  §§  409-428. 

The  plaintiffs  might  therefore  maintain  this  action  upon  a  declara- 
tion framed  uj)on  the  written  contract,  and  the  substituted  perfoi'mance 
agreed  on  would  not  avail  the  defendants  as  they  have  not  done  or 
offered  to  do  what  it  required.  Lerned  v.  Wannemacher,  9  Allen, 
412. 

On  examining  the  declaration,  it  appears  that  the  written  contract  is 
set  forth,  and  a  substantial  breach  of  it;  but  the  plaintiffs  go  further, 
and  allege  the  extension  of  the  contract  time  by  agreement  of  the 
parties,  and  a  breach  of  the  new  agreement.  Whether  the  new  agree- 
ment was  in  writing  is  not  averred,  but  the  evidence  shewed  it  to  liave 
been  made  by  parol. 

It  may  be  questionable  whether  there  was  any  thing  erroneous  or 
fatally  defective  in  the  declaration.  It  set  forth  a  good  cause  of  action? 
and  conformed  to  the  truth  of  the  case.  The  plaintiffs  could  not 
know  that  the  defendants  would  rely  upon  the  Statute  of  Frauds. 
When  they  did  rely  on  it,  the  declaration  could  have  been  amended 
by  striking  out  the  latter  averments,  if  an  amendment  was  necessary. 
But  the  ruling  that  the  plaintiffs  could  not  recover  upon  the  declara- 
tion, without  proof  that  there  was  an  agreement  for  an  extension  of  the 
time  of  performance,  was  made  at  the  request  of  the  defendants,  and  is 
not  excepted  to ;  and  we  allude  to  it  only  because  it  may  be  material 
upon  a  new  trial. 

The  defendants  then  asked  for  the  instruction   "that,  if  the  jury 
should  find  that  there  was  a  parol  agreement  for  an  extension  of  the 
VOL   I.  39 


610  BOARDMAN   V.    SPOONER.  [CHAP.   I. 

written  contract,  the  plaintiffs  could  not  recover  upon  such  parol 
agreement,  because  the  same  is  not  in  writing."  This  instruction, 
which  was  refused  by  the  court,  ought  to  have  been  given  ;  and  upon 
this  point  the  exceptions  are  sustained,  and  a  new  trial  granted. 

This  ruling  shews  the  other  exceptions  to  be  immaterial.  The  evi- 
dence as  to  damages  related  to  the  price  of  the  brick  at  the  time  of  the 
defendants'  final  refusal  to  deliver  them  in  the  spring,  which  was  not 
the  true  subject  of  inquiry.  The  question  should  have  been  as  to  the 
damages  sustained  at  the  time  the  written  contract  was  broken.  So  it 
is  unnecessary  to  decide  whether  the  parol  agreement  was  shewn  to  be 
an  extension  of  the  time  of  delivery  to  the  opening  of  navigation  or 
until  the  date  of  the  writ.  Exceptions  sustained. 


BENJAMIN    G.    BOARDMAN    v.    WILLIAM    B.     SPOONER 

AND   Others. 

Supreme  Judicial  Court  of  Massachusetts,  November,  1866. 

[Reported  in  13  Allen,  353.] 

Contract  brought  to  recover  for  five  bales  of  dead  green  hides,  and 
one  bale  of  dry  hides,  weighing  in  all  4986  pounds,  at  seventeen  cents 
a  pound,  $847.62  and  interest.  The  answer  denied  the  purchase,  and 
set  up  that  the  alleged  sale  was  void  by  the  Statute  of  Frauds. 

At  the  trial  in  the  Superior  Court  before  Vose,  J.,  it  appeared  that  on 
the  9th  of  September,  1865,  William  C.  Morey,  a  broker  in  hides  and 
goat-skins,  bargained  with  the  plaintiff  for  the  purchase  from  him  of 
the  hides  in  question  at  seventeen  cents  a  pound,  and  took  from  him  a 
memorandum  of  the  weights,  and  told  the  plaintiff  to  charge  the  hides 
to  the  defendants;  he  not  having  instructions  at  that  time  to  make 
any  purchase  for  them.  Immediately  afterwards  Morey  'sent  his 
brother  Charles  H.  Morey,  with  the  memorandum  of  weights,  to  Mr. 
Butler,  one  of  the  defendants,  to  inform  him  that  he  could  have  the 
hides  of  the  plaintiff  at  seventeen  cents  a  pound.  Charles  accordingly 
went  and  delivered  the  message.  Butler  asked  who  should  be  the 
judge  of  the  quality.  Charles  replied,  "  Mr.  Butler."  Butler  said,  if 
that  was  so,  he  would  take  them.  Charles  returned  to  his  brother's 
office,  and  there,  by  direction  of  his  brother  and  in  his  presence,  made 
the  following  entry  in  his  brother's  book :  "  Boston,  September  9, 1865. 
Sold  Wm.  B.  Spooner  &  Co.,  ace.  B.  G.  Boardman,  5  bales  D.  G.  cow 
hides,  1  bale  dry  do.,  (o)  17c  pr  lb.  net  cash,  delivered  in  N.  Y." 


SECT.  VI.]  BOARDMAN  V.    SPOONER.  611 

On  the  same  day  the  plaintiff  sent  a  bill  of  the  hides,  with  an  order 
for  their  delivery,  to  the  broker,  Avho  sent  thera  to  Butler.  The  hides 
were  then  in  the  warehouse  of  a  general  warehouseman  in  tlie  city  of 
New  Yoi'k,  and  the  order  was  on  the  storekeejier,  as  follows :  "  Boston, 
September  9,  1865.  Please  deliver  the  bearer  four  bales  marked  H.  J. 
B.,  and  two  bales  No.  24  and  50  of  Tucker,  Carter,  &  Co.  invoice,  and 
oblig-e  B.  G.  Boardman,  by  E.  M.  Dennie.  To  Storekeeper,  Coe's 
Wharf,  N.  Y."  The  bill  was  as  follows :  "  Boston,  September  9,  1865. 
Messrs.  Wm.  B.  Spooner  &  Co.  bought  of  W.  G.  Boardman,  133  Milk 
St.,  cash,  delivered  in  N.  Y.,  6  bales  D.  G.  and  dry  Patnas,  5028  lbs. 
less  tare,  42,  4986  lbs.,  17,  $847.62,"  together  with  figures  shewing  the 
weight  of  each  bale. 

Nothing  iurther  passed  between  the  plaintiff  and  defendants  until 
after  September  18,  1865,  when  the  warehouse  in  New  York  and  the 
liides  were  destroyed  by  fire.  There  was  no  evidence  whether  the 
storekeeper  had  or  had  not  been  informed  of  the  existence  of  the  order 
upon  him,  or  whether  the  defendants  had  made  any  demand  u])on  him 
for  the  hides.  These  six  bales  were  all  the  hides  belonoino-  to  the 
plaintiff  in  that  warehouse,  and  were  of  })rime  quality,  and  the  weights 
were  correct.  The  memorandum  of  weights,  the  delivery  order,  and 
the  bill  were  produced  by  the  defendants  at  the  trial,  on  notice  from 
the  plaintiff;  and  when  so  produced,  the  memorandum  of  weights  and 
the  bill  were  stamped  with  the  name  of  the  del'endants'  firm  with  a 
machine.  It  did  not  appear  when  or  for  what  purpose  they  w^ere  so 
stamped.^  .  .  . 

The  judge  ruled  that  this  evidence,  which  was  introduced  by  the 
plaintiff,  was  insufficient  to  take  the  case  out  of  the  Statute  of  Frauds, 
and  directed  a  verdict  for  the  defendants  ;  and  the  plaintiff  alleged 
exceptions. 

X  J).  Ball^  for  the  plaintiff.  There  was  a  sufficient  acceptance  and 
receipt  of  the  hides  by  the  defendants  by  their  acceptance  of  the  bill 
and  order  for  their  delivery.  Searle  v.  Keeves,  2  Esp.  R.  598 ;  Lack- 
ington  V.  Atherton,  7  Man.  &  Gr.  360 ;  Lucas  v.  Dorrien,  7  Taunt.  278 ; 
HoUingsworth  y.  Najner,  3  Caines'  K.  182;  Wilkes  v.  P'erris,  5  Johns. 
335,  344 ;  Pratt  v.  Parkman,  24  Pick.  46 ;  Whipple  v.  Thayer,  16  Pick. 
25;  Carter  «.  Willard,  19  Pick.  1 ;  De  AVolf  y.  Gardner,  12  Cush.  19; 
Gibson  v).  Stevens,  8  How.  384,  397.  Nothing  further  remained  to  be 
done  by  the  plaintiff.  No  assent  on  the  part  of  the  warehouseman, 
who  was  a  mere  bailee,  was  necessaiy.  The  defendants'  silence  till 
after  the  fire  shews  an  accejjtance.  Bushel  v.  Wheeler,  15  Q.  B.  442, 
Slight  evidence  of  delivery  is  sufficient.  Stinson  v.  Clark,  6  Allen, 
340.  There  need  not  be  such  an  acceptance  as  would  preclude  subse- 
quent objections  to  the  quality.  Morton  v.  Tibbett,  15  Q.  B.  428  ; 
Richmond  Iron  Works  v.  Woodruff,  8  Gray,  447.  In  this  case  the 
1  Tlio  parts  omitted  relate  to  a  question  of  usage.  —  Ed. 


612  BOARDMAN   V.    SPOONER.  [CHAP.    I. 

hides  were  of  prime  quality ;  and  by  the  terms  of  the  sale  Butler  could 
not  make  a  groundless  objection  to  them. 

The  note  or  memorandum  in  writing  was  sufficient  to  satisfy  the 
Statute  of  Frauds.  The  broker  was  the  agent  of  the  defendants,  and 
an  entry  by  him  in  his, book  is  sufficient.  And  it  is  not  necessary  that 
all  the  particulars  of  the  bargain  should  appear  in  the  writing.  Salmon 
Falls  Manuf  Co.  v.  Goddard,  14  How.  446.  There  was  no  warranty 
that  the  hides  were  of  good  quality ;  and  therefore  no  mention  of  the 
quality  in  the  memorandum  was  necessary.  The  memorandum  was 
complete  without  it.  .  .  . 

Stamping  the  bill  with  the  defendants'  stamp  was  a  sufficient  note  or 
memorandum  in  writing.  Johnson  v.  Dodgson,  2  M.  &  W.  653,  659, 
660;  Saunderson  v.  Jackson,  3  Esp.  R.  180;  Schneider  v.  Norris,  2  M. 
&  S.  286. 

JF.  M  Parker,  for  the  defendants.  The  receipt  of  the  bill  of  parcels 
and  order  for  delivery  of  goods  was  not  such  an  acceptance  as  will 
take  the  sale  out  of  the  Statute  of  Frauds.  Carter  v.  Willard,  19 
Pick.  1 ;  Bentull  v.  Burn,  3  B.  &  C.  423 ;  Farina  v.  Home,  16  M.  &  W. 
119:  Tuxworth  v.  Moore,  9  Pick.  347;  Burge  v.  Cone,  6  Allen,  412. 
The  broker's  note  was  not  a  sufficient  memorandum  in  writing  because 
not  signed  by  himself,  but  by  his  clerk.  See  Coddington  v.  Goddard, 
16  Gray,  ;  Henderson  y.  Baruewall,  1  Y.  &  Jerv.  387 ;  Story  on 
Agency,  §§  29,  109 ;  Browne  on  Statute  of  Frauds,  §  370.  It  was  also 
insufficient  in  substance.  Coddington  v.  Goddard,  above  cited ;  Mor- 
ton V.  Tibbett,  15  Q.  B.  428 ;  Browne  on  Statute  of  Frauds,  §  371 

Foster,  J.  The  first  ground  upon  which  the  plaintiff  relies  to  sat- 
isfy the  requirements  of  the  Statute  of  Frauds  (Geri.  Sts.  c.  105,  §  5)  is 
that  the  purchaser  has  accepted  and  received  part  of  the  goods  sold. 
The  only  act  proved  tending  to  support  this  proposition  is  the  follow- 
in  «•:  On  the  day  of  the  contract  a  bill  of  the  hides,  which  were  in  a 
general  warehouse  in  New  York  and  deliverable  there,  was  made  out 
to  the  defendants,  together  with  an  order  to  deliver  them  to  the  bearer, 
and  the  plaintiff  sent  these  papers  to  the  broker,  who  on  the  same  day 
handed  them  to  one  of  the  defendants.  The  defendants  are  not  shewn 
to  have  done  any  thing  except  to  take  and  keep  the  bill  and  order. 
Nor  does  it  appear  that  any  notice  of  the  transaction  was  given  to  the 
warehouseman. 

The  statute  is  silent  as  to  the  delivery  of  goods  sold,  which  is  the 
act  of  the  seller.  It  requires  the  acceptance  and  receipt  of  some  part 
thereof,  which  are  subsequent  acts  of  the  buyer.  We  are  aware  of  no 
authority  for  holding  this  provision  to  be  complied  with  where  nothing 
more  appears  to  have  taken  place  than  in  the  present  instance.  When 
goods  are  in  the  custody  of  a  third  person,  an  order  for  their  delivery 
with  notice  to  that  person  (but  never  without  such  notice  in  this  State) 
has  been  decided  to  be  sufficient  to  pass  the  property  as  against  attach- 


SECT.  71.]  BOARDMAN   V.    SPOONER.  613 

ing  creditors  of  the  vendor.  Tuxworth  v.  Moore,  9  Pick.  347 ;  Carter 
V.  Willard,  19  Pick.  1 ;  Burge  v.  Cone,  6  Allen,  412.  But  some  well 
considered  English  cases  hold  that  to  constitute  acceptance  and  receipt 
under  the  Statute  of  Frauds  there  must  also  be  an  assent  by  the  party 
in  whose  custody  the  goods  are  to  hold  them  for  the  vendee.  Bentall 
V.  Bura,  3  B.  &  C.  423;  Farina  v.  Home,  16  M.  &  W.  119.  In  the 
present  case  there  was  no  evidence  from  which  a  jury  would  be  author- 
ized to  infer  an  acceptance  and  rccei])t  by  the  purchaser. 

Next,  the  plaintifi*  insists  that  there  was  a  note  or  memorandum  in 
writing  of  the  bargain,  made  and  signed  by  the  party  to  be  charged 
thereby  or  by  some  person  thereunto  by  him  lawfully  authorized.  The 
vendor's  bill  of  sale  or  of  parcels  unsigned  by  the  vendee,  who  is  the 
party  to  be  charged,  does  not  of  course  bind  the  latter.  Hawkins  y. 
Chace,  19  Pick.  502.  The  stamping  of  the  purchasers'  name  and  a 
date  on  the  bill  and  memorandum  of  weights  at  some  time  while  these 
papers  were  in  their  possession,  without  evidence  when  or  for  what  pur- 
pose this  was  done,  did  not  show  that  they  had  adopted  such  a  stamp 
as  a  signature,  and  affixed  it  to  the  instruments  with  the  intent  to  bind 
themselves  thereby.  This  may  have  been  done  for  their  own  conven- 
ience to  show  the  date  of  the  reception  of  the  pa^Dcrs.  If  designed  as 
the  signature  of  a  memorandum  obligatory  on  the  vendees,  we  should 
expect  to  find  the  papers  in  the  custody  of  the  party  for  whose  benefit, 
and  not  of  the  one  by  whom,  they  were  signed.  We  do  not  regard  the 
mere  fact  that,  when  these  papers  were  produced  at  the  trial  by  the 
defendants,  they  were  found  to  be  so  stamped,  as  a  circumstance  which 
either  a  court  or  jury  would  be  at  liberty  to  treat  as  proof  of  a  signa- 
ture by  the  party  to  be  charged. 

We  have  therefore  to  consider  the  sufficiency  of  the  entry  of  the 
transaction  upon  the  broker's  book.  This  is  not  aided  by  the  contents 
of  the  memorandum  of  weights,  because  the  two  instruments  contain 
no  reference  to  each  other,  and  the  connection  between  them  cannot 
be  proved  by  oral  evidence,  if  there  were  any  such  in  the  case.  Morton 
V.  Dean,  13  Met.  385. 

In  the  conversation  between  the  broker's  clerk  and  Mr.  Butler,  one 
of  the  defendants,  relied  upon  to  prove  the  verbal  bargain,  the  latter 
asked  who  should  be  the  judge  of  the  quality :  the  clerk  re2)Iied,  "  Mr. 
Butler."  Butler  then  said,  if  that  Avas  so,  he  would  take  the  hides. 
This  stipulation  is  wholly  omitted  from  the  entry  on  the  broker's  book, 
which  contains  no  statement  as  to  the  quality  of  the  hides.  By  the 
true  construction  of  the  "wi'iting  the  contract  of  the  defendants  was 
absolute  to  purchase  the  hides,  if  they  answered  the  description  and 
were  "  five  bales  dead  green  and  one  bale  dry."  This  was  an  engage- 
ment essentially  different  from  the  one  actually  made,  according  to 
which  Butler  or  the  firm  were  to  judge  of  the  quality ;  Avhich  would 
be  a  conditional  bargain  to  take  the  hides  if  upon  examination  by  the 
VOL.  I.  40 


614  CODDINGTON   V.    GODDARD.  [CHAP.  I. 

vendees  or  one  of  them  the  quality  proved  satisfa(?tory,  or  so  good  that 
it  ought  reasonably  to  be  satisfactory  to  the  purchasers.  The  latter 
interpretation,  if  adopted,  would  not  destroy  the  value  of  the  pur- 
chasers' right  of  examination  and  to  judge  in  the  first  instance  of  the 
quality.  The  omission  of  the  condition  that  the  purchase  was  subject 
to  the  apf)roval  of  the  vendees  as  to  the  quality  constitutes  a  material 
variance  between  the  contract  as  made  and  as  written  down  in  the 
broker's  book.  .  .  . 

Upon  full  consideration  we  conclude  that  the  entry  in  the  broker's 
book  is  insufficient,  because  it  fails  to  correspond  with  and  omits  an 
essential  portion  of  the  actual  bargain  of  the  parties.  We  need  not 
therefore  examine  the  question  whether  an  entry  by  a  broker's  clerk, 
sufficient  in  substance,  would  comply  with  the  Statute  of  Frauds.  The 
ruling  of  the  court  below  that  the  defendants  were  entitled  to  a  ver- 
dict is  sustained,  and  the  exceptions  are  overruled. 


THOMAS  B.  CODDINGTON  axd   Othees  v.  WILLIAM  W. 

GODDARD. 

Supreme  Judicial  Court  op  Massachusetts,  November,  1860. 

[Reported  in  16  Gray,  436.^] 

Action  of  contract  to  recover  damages  for  not  delivering  two  hun- 
dred thousand  pounds  of  copper  alleged  to  have  been  sold  by  the 
defendant  to  the  plaintiff.  Trial  and  verdict  for  the  plaintiff  before 
Merrick,  J.,  who  reported  the  case  to  the  full  court,  in  substance  as  fol- 
lows :  — 

Charles  Canterbury,  called  as  a  witness  for  the  plaintiffs,  testified 
that  he  was  a  merchandise  broker ;  that  on  the  9th  of  December,  1856, 
acting  under  instructions  contained  in  a  telegraphic  despatch  from  the 
plaintiffs,  merchants  in  New  York,  which  he  received  between  two  and 
three  o'clock  in  the  afternoon,  he  called  at  the  defendant's  place  of 
business  in  Boston,  and  not  finding  him  there,  followed  him  to  his 
house,  where  he  had  an  interview  with  him,  and  stated  to  him  the 
plaintiffs'  offer  to  buy  three  hundred  thousand  pounds  of  copper,  at 
twenty-four  and  a  quarter  cents  per  pound,  on  a  credit  of  nine  months, 
with  satisfactory  paper,  and  deliverable  on  board  a  vessel  in  Boston 
bound  for  New  York,  the  seller  to  pay  freight  to  New  York,  and  the 
buyer  to  pay  the  insurance;  that  the  defendant  asked  if  the  steamer, 

1  This  case  has  been  published  since  the  preceding  sheets  were  struck  off.  — Ed. 


SECT.  VI.]  CODDINGTON   V.   GODDARD.  615 

whicli  had  that  day  tirrived  in  New  York,  brouglit  intelligence  of  any- 
advance  in  the  price  of  copper  in  Euroj)e ;  to  which  the  broker  replied, 
"None  that  I  know  of;"  and  the  defendant,  after  a  moment's  hesita- 
tion, said  that  he  would  sell  to  the  plaintiffs  two  hundred  thousand 
pounds  of  copper  on  the  terms  proposed,  reserving  the  right  to  add 
one  hundred  thousand  on  the  next  day  if  he  should  then  elect  to  do 
so ;  that  the  broker  urged  him  to  sell  the  whole  of  the  three  hundred 
thousand  pounds  then,  saying  that  the  purchase  was  made  for  exporta- 
tion, and  would  take  that  quantity  out  of  this  market ;  but  the  defend- 
ant said  he  would  not  do  difierently  from  what  he  had  proposed ;  and 
the  broker  then  said,  "  Well,  if  that  is  the  ultimatum,  it  is  a  sale,"  and, 
returning  to  his  office,  communicated  to  the  plaintiffs  by  telegraph 
what  he  had  done,  informing  them  that  he  should  write  the  particulars 
by  the  next  mail ;  which  he  did ;  and  made  a  memorandum  in  his  books 
of  the  transaction,  according  to  his  usual  custom. 

This  memorandum  was  on  a  page  of  a  book  headed, "  Boston,  Decem- 
ber, 1856,"  and  was  in  the  following  terms:  — 

9th.  W.  W.  Goddard  to  T.  B.  Coddington  &  Co.  200,000  pounds  Chili  pig 
copper,  24^  a  9  raos.  from  delivery,  f.  o.  b.  packet  here  for  N.  Y.,  seller  paying 
freight,  and  buyer  paying  insurance  to  N.  Y.  To  be  96  per  cent  pure  copper, 
and  paper  satisfactory  to  seller. 

The  broker  testified  that  in  this  memorandum  the  figures  denoting 
the  quantity  were  written  in  pencil,  in  order  to  facilitate  alteration  in 
case  the  defendant  should,  as  he  had  a  right  to  do,  elect  to  deliver  a 
larger  quantity.  No  sale  note  or  letter  relating  to  the  sale  or  entry 
was  sent  by  the  broker  to  the  defendant.  .  .  } 

The  defendant,  being  called  as  a  witness,  testified  that  in  his  inter- 
view with  the  broker  he  said  that  he  would  sell  to  the  plaintiffs  two 
hundred  thousand  pounds  of  copper  in  case  no  intelligence  had  been 
received  by  the  steamer  of  any  advance  in  the  price  of  the  article  in 
Europe,  reserving  the  right  to  add  one  hundred  thousand  pounds  the 
next  day  on  the  same  terms  at  his  option.  And  he  contended  that,  if 
there  was  any  verbal  contract  for  the  sale  of  two  hundred  thousand 
pounds  of  copper,  it  was  upon  this  condition,  and  upon  the  further  con- 
dition that  the  copi)er,  if  sold  and  delivered,  should  be  exported  by  the 
plaintiffs,  and  therefore  the  plaintiffs  could  not  recover. 

The  defendant  also  contended  that  the  entry  in  the  broker's  books 
was  not  a  sufiicient  memorandum  in  writing  to  take  the  case  out  of 
the  Statute  of  Frauds ;  because  no  authority  was  shown  in  the  broker 
to  sign  the  memorandum  in  his  behalf  or  in  behalf  of  the  jilaintiffs ; 
because  it  was  not  intended  by  the  broker,  when  he  made  it,  as  a  com- 
plete and  final  statement  of  the  bargain  made ;   because  it  did  not 

*  Tlie  parts  omitted  have  no  connection  with  the  Statute  of  Frauds.  —  Ed. 


616  CODDINGTON   V.   GODDARD.  [CHAP.  I. 

state  all  the  material  terms  of  the  bargain ;  because  it  was  not  signed 
as  requix-ed  by  the  statute ;  and  because  the  broker  was  not  author- 
ized by  the  defendant  to  make  the  bargain  so  entered  by  him. 

But  the  judge  ruled  that  if  Canterbury  was  a  merchandise  broker, 
and  that  was  known  to  the  parties,  and  they  were  dealing  with  him  in 
this  transaction  in  his  capacity  of  broker,  and  made  a  contract  through 
him  for  the  purchase  and  sale  of  two  hundred  thousand  pounds  of 
copper,  this  gave  him  authority  to  bind  them  both  by  making  a  memo- 
randum of  the  contract  in  writing,  and  signing  it  in  their  behalf  re- 
spectively ;  that  the  memorandum  in  his  book  was  sufficient  in  form  to 
bind  the  parties,  if  he  had  authority  to  make  and  sign  it  for  them ; 
that  if  he  did,  in  fact,  make  the  entry  in  his  book  as  and  for  a  com- 
plete note  or  memorandum  of  the  contract  of  sale  made  by  the  par- 
ties through  him,  such  memorandum  was  conclusive  evidence  of  the 
terms  of  the  contract,  and  was  to  be  considered  and  treated  in  all 
respects  as  if  it  was  a  written  contract  signed  by  the  parties  them- 
selves ;  that  it  was  in  its  terms  a  perfect  and  complete  statement  of  a 
contract,  and  capable  of  a  clear  and  intelligible  exposition,  and  there- 
fore parol  evidence  was  inadmissible  to  contradict  or  vary  the  terms 
of  it ;  and  that  even  if  the  defendant  did  in  his  verbal  contract  with 
Canterbury  make  the  sale  upon  such  conditions  as  he  contended,  he 
could  not  avail  himself  of  either  of  those  conditions,  because  they 
were  not  contained  or  expressed  in  the  memorandum.  To  these  rul- 
ings the  defendant  alleged  exceptions. 

C  B.  Goodrich  and  0.  G.  Peabody^  for  the  defendant.  .  .  .  The 
entry  in  the  broker's  book  is  insufficient,  because,  1st.  It  does  not 
show  who  is  buyer  and  who  seller.  2  Kent  Com.  511 ;  Bailey  v. 
Ogden,  3  Johns.  399 ;  Sherburne  v.  Shaw,  1  N.  H.  157 ;  Champion  v. 
Plummer,  1  New  Rep.  252;  Elmore  v.  Kingscote,  5  B.  &  C.  583. 
2d.  It  does  not  state  in  what  sum,  nor  in  whose  name,  nor  for  whose 
benefit  the  copjjer  was  to  be  insured,  nor  when,  where,  or  by  what  test 
the  assay  of  the  copper  was  to  be  made.  3d.  It  does  not  mention  the 
defendant's  right  to  add  one  hundred  thousand  pounds.  4th.  It  is 
not  signed  by  the  broker.  Goom  v.  Aflalo,  6  B.  &  C.  117 ;  Heyman  v. 
Neale,  2  Campb.  337;  Smiths.  Sparrow,  2  Car.  &  P.  544;  Grant  v. 
Fletcher,  5  B.  &  C.  436 ;  Henderson  v.  Barnewall,  1  Yo.  &  Jerv.  387 ; 
Thornton  v.  Charles,  9  M.  &  W.  802  ;  Sieve wright  w.  Archibald,  17 
Q.  B.  102 ;  Davis  v.  Shields,  26  Wend.  341 ;  Dennison  v.  Carnahan, 

1  E.  D.  Smith,  144.  The  mention  of  the  names  of  the  parties  at  the 
top  of  the  entry  by  the  broker  is  not  a  sufficient  signature.  Cabot  v. 
Haskins,  3  Pick.  83  ;  Hawkins  v.  Chace,  19  Pick.  505 ;  James  v.  Patten, 

2  Seld.  11 ;  Merritt  v.  Clason,  12  Johns.  102,  and  14  Johns.  484;  Davis 
■0.  Shields,  26  Wend.  341;  Propert  v.  Parker,  1  Russ.  &  Myl.  625; 
Holmes  v.  Mackrell,  3  C.  B.  (n.  s.)  789  ;  Lobb  v.  Stanley,  5  Q.  B.  574. 

The  ruling  that  parol  evidence  was  incompetent  to  show  that  the 


SECT.  VI.]  CODDINGTON    V.    GODDARD.  617 

defendant  agreed  to  the  sale  upon  conditions  not  expressed  in  the 
entry  was  erroneous.  Davis  v.  Shields,  2G  Wend.  364-3GG ;  Goodman 
V.  Griffiths,  1  11.  &  N.  574 ;  Pym  v.  Campbell,  6  P^l.  &  Bl.  370 ;  Pitts  v. 
Beckett,  13  M.  &  W.  743 ;  Russell  on  Factors,  75,  78,  79,  86. 

C.  A.  Welch  and  M  Bangs,  for  the  plaintiffs. 

BiGELow,  C.  J.  .  .  .  There  can  be  no  doubt  that  the  broker,  if  he 
acted  as  the  agent  of  both  parties  in  completing  the  contract  of  sale, 
was  empowered  to  do  all  that  was  necessary  to  make  the  bargain  valid 
and  binding  in  law.  For  this  purpose  he  had  authority  to  make  the 
requisite  memorandum  to  satisfy  the  Statute  of  Frauds.  Rev.  Sts.  c. 
74,  §  4.  It  is  not  denied  that  this  memorandum  may  well  be  made 
in  the  book  of  a  broker.  Indeed,  such  entry  may  be  resorted  to  as 
the  oiiginal  evidence  of  the  contract,  even  when  bought  and  sold  notes 
of  the  bargain,  differing  from  each  other,  have  been  delivered  to  the 
parties.     Sievewright  v.  Archibald,  17  Q.  B.  102,  109. 

But  it  is  objected  that  the  memorandum  made  by  the  broker  in  the 
present  case  was  insufficient  to  take  the  case  out  of  the  operation  of 
the  statute,  because  it  does  not  show  who  were  the  vendor  and  vendee 
of  the  merchandise.  This  would  be  a  fotal  objection  if  it  was  well 
founded;  for  although  a  memorandum  of  this  nature  may  be  very 
brief,  it  must  nevertheless  show  with  reasonable  certainty  who  were 
the  parties  to  the  contract,  and  the  terms  of  the  sale,  so  that  they  may 
appear  from  the  writing  itself.  But  in  the  present  case  the  entry  is 
perfectly  intelligible  and  free  from  doubt.  If  it  is  read  Avith  reference 
to  the  book  in  which  it  is  made,  as  an  entry  by  a  broker  in  the  regular 
course  of  his  business  as  an  agent  of  third  parties  for  the  purchase  and 
sale  of  goods,  it  clearly  indicates  a  sale  from  defendant  to  the  plain- 
tiffs.    It  is  susceptible  of  no  other  interpretation. 

It  is  also  objected  that  the  memorandum  is  deficient,  because  it  does 
not  state  the  amount  for  which  insurance  was  to  be  procured,  nor  for 
whose  benefit,  and  because  it  contains  no  stipulation  concerning  the 
mode  or  place  in  which  the  assaying  of  the  copper  was  to  be  had,  in 
order  to  ascertain  its  purity.  The  answer  to  these  objections  is  that 
the  memorandum  states  with  accuracy  the  terms  of  the  contract  as 
testified  to  by  the  broker,  and  that  there  Avas  no  proof  at  the  trial  that 
there  was  any  agreement  made  concerning  the  particulars  of  the  bar- 
gain which  are  now  alleged  to  be  omitted. 

Nor  does  it  affect  the  validity  of  the  memorandum,  that  the  broker 
did  not  include  in  it  the  stipulation  made  by  the  defendant,  that  he 
should  have  the  right  to  add  to  the  sale  one  hundred  thousand  pounds 
of  copper  the  next  day.  This  was  a  wholly  separate  and  independent 
agreement,  which  in  no  way  affected  the  sale  actually  made,  and  which 
could  not  be  properly  entered  in  the  book  of  the  broker,  unless  it  had 
ripened  into  a  sale  by  the  election  of  the  defendant  on  the  next  day 
to  sell  the  additional  quantity  to  the  plaintiffs.     But  he  made  no 


618  CODDINGTON  V.   GODDARD.  [CHAP.  I. 

such  election,  and  there  was  therefore  no  contract  as  to  that  portion 
of  the  copper  of  which  the  broker  was  empowered  to  make  a  memo- 
randum. 

The  remaining  objection  to  the  sufficiency  of  the  entry  in  the  book 
as  a  memorandum  within  the  statute  is  that  it  was  not  duly  signed  by 
the  broker  or  the  parties.  We  know  pf  no  case  in  which  it  has  been 
held  that  the  signature  of  the  name  of  the  agent  through  whoni  the_ 
contract  is  negotiated  should  appear  in  the  writing.  It  is  sufficient  if 
the  names  of  the  parties  to  be  charged  are  properly  inserted,  either  by 
themselves  or  by  some  persons  duly  authorized  to  authenticate  the 
document.  Brokers  and  auctioneers  are  deemed  to  be  the  agents  of  both 
parties,  and  by  virtue  of  their  employment  stand  in  such  relation  to 
their  principals  that  they  can  sign  the  names  of  the  parties  to  a  con- 
tract of  sale  effected  through  their  agency.  Such  authority  is  implied 
from  the  necessity  of  the  case ;  because  without  it  they  could  not  com- 
plete a  contract  of  sale  so  as  to  make  it  legally  binding  on  the  parties. 
Nor  is  it  at  all  material  that  the  names  should  be  written  at  the  bottom 
of  the  memorandum.  It  is  sufficient  if  the  names  of  the  principals  are 
inserted  in  such  form  and  manner  as  to  indicate  that  it  is  their  con- 
tract, by  which  one  agrees  to  sell  and  the  other  to  buy  the  goods  or 
merchandise  specified,  upon  the  terms  therein  expressed.  It  is  the 
substance,  and  not  the  form,  of  the  memorandum,  which  the  law  re- 
gards. The  great  purpose  of  the  statute  is  answered,  if  the  names  of 
the  parties  and  the  terms  of  the  contract  of  sale  are  authenticated  by 
written  evidence,  and  do  not  rest  in  parol  proof  Penniman  v.  Harts- 
horn, 13  Mass.  87 ;  Hawkins  v.  Chace,  19  Pick.  502,  505  ;  Fessenden  v. 
Mussey,  11  Cush.  127  ;  Morton  v.  Dean,  13  Met.  385 ;  Salmon  Falls 
Manuf  Co.  v.  Goddard,  14  How.  446. 

The  only  other  exception  taken  to  the  ruling  of  the  court  presents  a 
question  of  some  difficulty.  To  understand  it,  it  is  necessary  to  recur 
to  the  positions  assumed  by  the  respective  parties  at  the  trial.  The 
plaintiffs  contended  and  offered  evidence  to  show  that  the  sale  was  an 
absolute  one,  and  was  made  upon  the  terms  set  out  in  the  written 
memorandum.  The  defendant,  on  the  other  hand,  insisted  and  en- 
deavored to  prove  that  the  contract  of  sale  was  a  conditional  one,  and 
was  not  to  take  effect,  if  intelligence  had  been  received  by  the  steamer 
of  an  advance  in  the  price  of  copper,  nor  unless  the  plaintiffs  should 
agree  to  export  it,  if  the  sale  and  delivery  were  completed.  In  this 
state  of  the  case,  one  of  the  points  urged  by  the  defendant  was  that 
the  broker  had  no  authority  to  bind  him  by  the  memorandum  which 
was  offered  in  evidence.  Among  the  instructions  given  to  the  jury, 
they  were  told  that  if  the  defendant  did,  in  his  verbal  contract  entered 
into  with  Canterbury,  make  the  sale  on  the  conditions  above  stated, 
he  could  not  avail  himself  of  either  of  them,  because  they  were  not 
contained  in  the  written  memorandum  made  by  the  broker.     This 


SECT.  VI.]  CODDINGTON   V.   GODDARD.  619 

instruction  was  strictly  accurate  as  applied  to  the  contract,  if  it  was 
made  by  the  authorized  agent  of  both  the  parties.  But  upon  the  issue 
whetlier  the  broker  Avas  authorized  to  sign  the  memorandum  offered 
in  proof  as  the  agent  of  the  defendant,  it  shuts  him  out  from  the  bene- 
fit of  testimony  which  has  a  direct  and  material  bearing.  Upon  the 
facts  as  they  appear  in  the  report  of  the  case,  the  broker  was  not  the 
general  agent  of  the  defendant.  He  had  no  authority  to  bind  him, 
except  such  as  was  derived  from  the  verbal  contract  into  which  he 
entered  for  the  sale  of  the  copper.  He  was  in  the  strictest  sense  a  t 
special  agent  for  a  special  and  single  object,  and  could  not  bind  the  * 
defendant  beyond  the  limits  conferred  by  the  precise  terms  of  the 
agreement  to  which  he  assented.  He  was  his  agent  only  to  sign  a 
memorandum  which  contained  the  whole  contract,  with  the  temis  and 
conditions  annexed  to  it  by  him.  A  broker,  from  the  very  nature  of 
his  employment,  has  only  a  limited  authority,  when  it  appears,  as  it 
does  in  the  present  case,  that  he  had  no  relation  to  a  party,  other  than 
what  is  derived  from  a  single  contract  of  sale.  When  he  applies  to  a 
vendor  to  negotiate  a  sale,  he  is  not  his  agent.  He  does  not  become 
so  until  the  vendor  enters  into  the  agreement  of  sale.  It  is  from  this 
agreement  that  he  derives  his  authority,  and  it  must  necessarily  be 
limited  by  its  terms  and  conditions.  He  is  then  the  special  agent  of 
the  vendor  to  act  in  conformity  with  the  contract  to  which  his  princi- 
pal has  agreed,  but  no  further,  and  he  cannot  be  regarded  as  his  agent, 
unless  he  comjdies  with  the  terms  of  his  special  authority  as  derived 
from  the  contract.  In  short,  a  broker  is  authorized  to  sign  only  that 
contract  into  which  the  vendor  has  entered,  not  another  and  different 
contract.  If  he  omits  to  include  in  the  memorandum  special  excep- 
tions and  conditions  to  the  bargain,  he  signs  a  contract  which  he  has 
no  authority  to  make,  and  the  party  relying  upon  it  must  fail,  because 
it  is  shown  that  the  broker  was  not  the  agent  of  the  vendor  to  siirn 
that  contract.  It  would  seem  to  follow  as  a  necessary  consequence 
that  evidence  of  the  verbal  agreement  into  which  the  defendant  en- 
tered for  the  -sale  of  the  copper  was  competent  and  material  on  the 
question  of  the  extent  of  his  authority  to  bind  the  defendant. 

Nor  does  the  admission  of  this  evidence  for  this  purpose  at  all  con- 
travene the  rule,  that  parol  proof  is  incompetent  to  vary  or  control  a 
written  contract.  It  is  offered  for  a  wholly  different  purpose.  It 
bears  solely  on  a  preliminary  inquiry.  The  object  is  not  to  explain  or 
alter  a  contract,  but  to  show  that  no  contract  was  ever  entered  into, 
because  the  person  who  executed  it  had  no  authority  to  make  it. 
The  authority  of  an  agent  may  ahvays  be  shown  by  parol ;  but  the 
contracts  into  which  he  enters  within  the  scope  of  his  authority,  when 
reduced  to  writing,  can  be  proved  only  by  the  writing  itself 

The  necessity  of  admitting  evidence  of  the  verbal  contract  entered 
into  with  a  broker,  in  cases  where  his  authority  is  drawn  in  question, 


620 


CODDINGTON   V.    GODDAED.  [CHAP. 


is  quite  obvious.  If  such  proof  were  incompetent,  a  broker  wbo  had 
entered  into  negotiations  with  a  person  might  make  a  memorandum  of 
a  contract  wholly  different  from  that  which  he  was  authorized  to  sign, 
and  thereby  effectually  preclude  all  proof  that  no  such  contract  was 
ever  made.  Allen  v.  Pink,  4  M.  &  W.  144 ;  Pitts  v.  Beckett,  13  M  & 
W  743  750.  -^^^  ^^^^^  granted. 


CHAPTER  II.         -^'tf  .<^  ''/f^'-/- 


EXECUTORY  AND  EXECUTED  SALES.  ^.^^         y 

SECTION  I.  /_ 

Unconditional  Sales  of  Specific  Goods  to  which  nothing  remains  to 

be  done. 

JAMES  TARLING  v.  BAXTER. 

In  the  King's  Bench,  Hilary  Term,  1827. 

[Reported  in  6  Barneicall  ^  Cresstvell,  360.] 

AssincpsiT  to  recover  back  £145  paid  by  the  plaintiff  to  the  defend- 
ant's use.  The  declaration  contained  counts  for  money  had  and  received, 
and  the  other  common  counts.  Plea,  general  issue,  with  a  notice  of  set- 
off for  goods  sold  and  delivered,  and  bargained  and  sold.  At  the  trial 
before  Abbott,  C.  J.,  at  the  London  sittings  after  Hilary  term,  1826,  a 
verdict  was  found  for  the  plaintiff  for  £145,  subject  to  the  ojiinion  of 
this  court  on  the  following  case :  — 

On  the  4th  of  January,  1825,  the  plaintiff  bought  of  the  defendant" 
a  stack  of  hay  belonging  to  the  defendant,  and  then  standing  in  a  field 
belonging  to  the  defendant's  brother.  The  note  signed  by  the  defend- 
ant, and  delivered  to  the  plaintiff  was  in  these  words,  "  I  have  this  day 
agreed  to  sell  James  Tarling  a  stack  of  hay,  standing  in  Canonbury 
Field,  Islington,  at  the  sum  of  £145,  the  same  to  be  paid  on  the  fourth 
day  of  February  next,  and  to  be  allowed  to  stand  on  the  premises  until 
the  first  day  of  May  next."  And  the  following  note  was  signed  by  the 
plaintiff  and  delivered  to  the  defendant :  "  I  have  this  day  agreed  to 
buy  of  Mr.  John  Baxter,  a  stack  of  hay,  standing  in  Canonbury  Field, 
Islington,  at  the  sum  of  £145,  the  same  to  be  paid  on  the  fourth  day  of 
February  next,  and  to  be  allowed  to  stand  on  the  premises  until  the 
first  day  of  May  next,  the  same  hay  not  to  be  cut  until  paid  for.  Janu- 
ary 4, 1825."  At  the  meeting  at  which  the  notes  were  signed,  but  after 
the  signature  thereof,  the  defendant  said  to  the  plaintiff,  "  You  will 
particularly  oblige  me  by  giving  me  a  bill  for  the  amount  of  the  hay." 


622  TARLING   V.    BAXTER.  [CHAP.  II. 

The  plaintiff  rather  objected.  The  defendant's  brother,  S.  Baxter,  on 
the  eighth  of  the  same  month  of  January,  took  a  bill  of  exchange  for 
£145  to  the  plaintiff,  drawn  upon  him  by  the  defendant,  dated  the  4th 
of  January,  1825,  payable  one  month  after  date,  which  the  plaintiff 
accepted.  The  defendant  afterwards  indorsed  it  to  George  Baxter,  and 
the  plaintiff  paid  it  to  one  Taylor,  the  holder,  when  it  became  due. 
The  stack  of  hay  remained  on  the  same  field  entire  until  the  20th  of 
January,  1825,  when  it  was  accidentally  wholly  consumed  by  fire,  with- 
out any  fault  or  neglect  of  either  party. 

A  few  days  after  the  fire  the  plaintiff  applied  to  the  defendant  to 
know  what  he  meant  to  do  when  the  bill  became  due ;  the  defendant 
said,  "  I  have  paid  it  away,  and  you  must  take  it  up  to  be  sure.  I  have 
nothing  to  do  with  it,  why  did  you  not  remove  the  hay."  The  plaintiff 
said,  "  he  could  not  because  there  was  a  memorandum  '  that  it  should 
not  be  removed  until  the  bill  was  paid  ; '  would  you  have  suffered  it  to 
be  removed  ?  "  and  the  defendant  said,  "  certainly  not."  The  defend- 
ant's set-off  was  for  the  price  of  the  hay  agreed  to  be  sold  as  aforesaid. 
The  question  for  the  opinion  of  the  court  was,  whether  the  plaintiff 
under  the  circumstances  was  entitled  to  recover  the  sum  of  £145,  or 
any  part  thereof 

Chitty,  for  the  plaintiff.     The  loss  in  this  case  must  fall  upon  the  de- 
fendant.    There  is  a  difference  between  the  two  contracts;  the  one 
contains  a  stipulation  not  in  the  other,  that  the  hay  was  not  to  be  cut 
until  paid  for.     Now  if  that  be  a  material  part  of  the  contract,  then 
there  was  no  one  sufiicient  contract  in  writing  to  satisfy  the  Statute  of 
Frauds ;  but  assuming  that  there  was  a  complete  contract  of  sale  with- 
out the  stipulation,  and  that  the  plaintiff  thereby  consented  to  waive  a 
right  which  he  otherwise  would  have  had,  still  the  property  in  the  hay 
had  not  passed  to  the  vendee  because  this  was  a  sale  upon  credit,  and 
the  vendee  was  not  entitled  to  have  possession  of  the  goods  until  the 
credit  expired ;  and  if  so  the  property  did  not  vest  in  him  until  the 
credit  expired.    [Holkoyd,  J.    In  Comyn's  Dig.,  tit.  Agreement  (B.  3), 
it  is  laid  down,  "  that  if  a  sale  be  of  goods  for  such  a  price,  and  a  day 
of  payment  limited,  the  contract  will  be  good,  and  the  property  altered 
by  the  sale,  though  the  money  be  not  paid ; "  and  R.  10  H.  7,  8  a ;  14 
H.  8,  20  a ;  and  Dyer,  30  a,  are  cited.     And  again,  "  if  A.  sell  a  horse 
to  B.  upon  condition  that  he  pay  £20  at  Christmas,  and  afterwards  sell 
it  to  D.,  the  sale  to  D.  is  void,  though  B.  afterwards  do  not  pay ; "  and 
Plowden's  Com.  432  b,  is  cited,  and  the  reason  there  given  is,  that  A. 
at  the  time  of  the  second  contract  had  no  interest  in,  nor  property,  nor 
possession  of  the  horse,  nor  any  thing  but  a  condition;  and  therefore 
the  second  contract  was  merely  void.]    It  is  true  that  in  Noy's  Maxims, 
p.  88,  it  is  laid  down,  that  "  if  I  sell  my  horse  for  money  I  may  keep 
him  until  I  am  paid,  but  I  cannot  have  an  action  of  debt  until  he  be 
delivered,  yet  the  property  of  the  horse  is  by  the  bargain  in  the  bar- 


SECT.  I.]  TARLING    V.    BAXTER.  623 

gainee  or  buyer ;  but  if  he  presently  tender  me  my  money  and  I  refuse 
it,  he  may  take  the  horse  or  have  an  action  of  detinue."  But  that 
relates  clearly  to  the  case  of  a  ready-money  bargain.  In  Goodall  v. 
Skelton,^  A.  agreed  to  sell  goods  to  B.,  who  paid  a  certain  sum  as  earn- 
est ;  the  goods  were  packed  in  cloth  furnished  by  the  buyer,  and  de- 
posited in  a  building  belonging  to  the  seller  until  the  buyer  should  send 
for  them,  but  the  seller  declared  at  the  same  time  that  they  should  not 
be  carried  away  till  he  was  paid.  It  was  held  that  the  seller  could  not 
maintain  an  action  for  goods  sold  and  delivered.  In  the  present  case 
the  hay  was  to  remain  in  possession  of  the  seller,  and  not  to  be  cut  till 
paid  for.  This  is  distinguishable,  therefore,  from  Hinde  v.  Whitehouse,^ 
where  sugars  in  the  king's  warehouse  were  held  to  pass  to  the  buyer  by 
the  contract  of  sale,  although  the  duties  were  not  paid.  It  is  more  like 
Tempest  v.  Fitzgerald,^  where  the  purchaser  of  a  horse  for  ready  money 
rode  the  horse,  and  requested  that  it  might  remain  in  B.'s  possession 
for  a  further  time,  at  the  expiration  of  which  he  promised  to  fetch  it 
away  and  pay  the  price.  This  was  assented  to  by  the  seller,  and  it  was 
held,  that  the  seller  could  not  recover  on  a  count  for  horses  bargained 
and  sold,  there  having  been  no  acceptance  of  the  horse  within  the  mean- 
ing of  the  Statute  of  Frauds. 

Bayley,  J.  It  is  quite  clear  that  the  loss  must  fall  upon  him  in 
whom  the  property  was  vested  at  the  time  when  it  was  destroyed  by 
fire.  And  the  question  is,  in  whom  the  property  in  this  hay  was  vested 
at  that  time  ?  By  the  note  of  the  contract  delivered  to  the  plaintiff 
the  defendant  agreed  to  sell  the  plaintiff  a  stack  of  hay  standing  in 
Canonbury  Field,  at  the  sum  of  £145,  the  same  to  be  paid  for  on  the 
fourth  day  of  February  next,  and  to  be  allowed  to  stand  on  the  prem- 
ises until  the  first  day  of  May  next."  Now  this  was  a  contract  for  an 
immediate,  not  a  prospective  sale.  Then  the  question  is,  In  whom  did 
the  property  vest  by  virtue  of  this  contract  ?  The  right  of  property 
and  the  right  of  possession  are  distinct  from  each  other ;  the  right  of 
possession  may  be  in  one  person,  the  right  of  property  in  another.  A 
vendor  may  have  a  qualified  right  to  retain  the  goods  unless  payment 
is  duly  made,  and  yet  the  property  in  these  goods  may  be  in  the 
vendee.  The  fact  in  this  case,  that  the  hay  was  not  to  be  paid  for 
until  a  future  period,  and  that  it  was  not  to  be  cut  until  it  was  paid  for, 
makes  no  difference,  provided  it  was  the  intention  of  the  parties  that 
the  vendee  should  by  the  contract,  immediately  acquire  a  right  of  prop- 
erty in  the  goods,  and  the  vendor  a  right  of  property  in  the  price.  The 
rule  of  law  is,  that  where  there  is  an  immediate  sale,  and  nothing  re- 
mains to  be  done  by  the  vendor  as  between  him  and  the  vendee,  the 
property  in  the  thing  sold  vests  in  the  vendee,  and  then  all  the  conse- 
quences resulting  from  the  vesting  of  the  property  follow,  one  of  which 

1  2  H.  Bl.  316.  2  7  East,  558.  »  3  B.  &  A.  680. 


624  GILMOUR   V.   SUPPLE.  [CHAP.  II. 

is,  that  if  it  be  destroyed,  the  loss  falls  upon  the  vendee.  The  note  of 
the  buyer  imports  also  an  immediate,  perfect,  absolute  agreement  of 
sale.  It  seems  to  me  that  the  true  construction  of  the  contract  is,  that 
the  parties  intended  an  immediate  sale,  and  if  that  be  so,  the  property 
vested  in  the  vendee,  and  the  loss  must  fall  upon  him.  The  rule  for 
entering  a  nonsuit  must  therefore  be  made  absolute. 

HoLROYD,  J.  I  think  that  in  this  case  there  was  an  immediate  sale 
of  the  hay,  accompanied  Avith  a  stipulation  on  the  part  of  the  vendee, 
that  he  would  not  cut  it  till  a  given  period.  Now,  in  the  case  of  a  sale 
of  goods,  if  nothing  remains  to  be  done  on  the  part  of  the  seller,  as 
between  him  and  the  buyer  before  the  thing  purchased  is  to  be  deliv- 
ered, the  property  in  the  goods  immediately  passes  to  the  buyer,  and 
that  in  the  price  to  the  seller ;  but  if  any  act  remains  to  be  done  on 
the  part  of  the  seller,  then  the  property  does  not  pass  imtil  that  act  has 
been  done.  I  am  of  opinion,  therefore,  in  this  case,  not  only  that  the 
property  immediately  passed  to  the  buyer  by  the  contract,  but  that  the 
seller  thereby  immediately  acquired  a  right  in  the  price  stipulated  to 
be  paid  for  the  goods,  although  that  was  not  to  be  paid  until  a  future 
day.  The  property  having  passed  to  the  vendee,  and  having  been  acci- 
dentally destroyed  before  the  day  of  payment,  the  loss  must  fall  upon 

him. 

LiTTLEDALE,  J.  The  parties  on  the  4th  of  January  stipulated  for 
the  sale  and  purchase  of  a  stack  of  hay  to  be  paid  for  in  a  month. 
Thus  the  case  would  have  stood  but  for  the  note  of  the  contract  de- 
livered to  the  buyer,  and  in  that  there  was  a  stipulation  that  the  pur- 
chaser should  not  cut  until  the  money  was  paid ;  but  the  property  in 
the  hay  had  already  passed  by  the  contract  of  sale  to  the  purchaser, 
and  the  latter  afterwards  merely  waived  his  right  to  the  immediate 
possession.  Then  the  property  having  passed  to  the  buyer,  the  loss 
must  fall  upon  him  ;  and  consequently  this  rule  for  entering  a  nonsuit 
miust  be  made  absolute.  Hule  absolute. 

?  — 


^    ,  ALLAN  GILMOUR,  Appellant,  ai^d  JOHN  SUPPLE,  Respondent. 
>'^  \  J^     In  the  Privy  Council,  February  26  and  March  20,  1858.i 
ppeal  from  the  Court  of  Error  and  Appeal  of  Upper  Canada. 
[Reported  in  11  Moore's  Privy  Council  Cases,  551.] 


This  was  an  action  brought  by  the  respondent  against  the  appel- 
lant in  the  Court  of  Common  Pleas  at  Toronto,  in  Upper  Canada,  to 


\  1  Present :  The  Eight  Hon.  T.  Pemberton  Leigh,  the  Eight  Hon.  Sir  Edward 

r^    Kyan,  tli,e  Eight  Hon.  Sir  John  Dodson,  and  the  Eight  Hon.  Sir  Cresswell  Cresswell. 


SECT.  I.]  GILMOUR  V.   SUPPLE.  625 

recover  the  sura  of  £2,307  Is.  7d.,  the  price  of  71,445  feet  of  timber, 
at  7^d.  per  foot. 

The  declaration  contained  a  special  count  and  indebitatus  counts. 
The  special  count  alleged  that,  in  consideration  that  the  respondent 
would  sell  and  deliver  to  the  ap})ellant  a  raft  of  timber,  then  at  Ca- 
rouge,  at  l^d.  per  foot,  and  deliver  it  at  Indian  Cove  Booms,  the  appel- 
lant promised  to  pay  for  the  raft  one-third  in  cash,  one-third  in  sixty 
days,  and  one-third  in  ninety  days  after  delivery.  The  count  then 
alleged  a  delivery  of  the  raft  of  timber  to  the  appellant  at  the  appointed 
place,  but  that  the  appellant  had  not  paid  the  price.  The  indebitatus 
counts  comprised  a  claim  for  the  price  of  goods  sold  and  delivered. 
The  appellant  pleaded  the  general  issue  to  the  whole  declaration ;  and 
a  plea  traversing  the  delivery  of  the  raft,  as  alleged  in  the  first  count. 

The  action  was  tried  at  the  Ottawa  Spring  Assizes,  1855,  before  Mr. 
Justice  Richards. 

The  following  facts  appeared  in  the  evidence  upon  the  trial :  On 
the  20th  of  October,  1856,  the  respondent  was  possessed  of  a  raft  of 
timber  then  at  Carouge,  a  place  on  the  river  St.  Lawrence,  about  eight 
or  nine  miles  higher  up  the  river  than  the  Indian  Cove.  The  Indian 
Cove  Avas  a  cove  on  the  river  where  the  appellant  occupied  certain 
wharves,  and  certain  parts  of  the  river  adjoining,  enclosed  by  booms, 
for  receiving  and  securing  rafts  of  timber.  Shortly  before  that  day 
the  respondent  had  caused  the  pieces  of  timber  forming  the  raft  to  be 
measured  by  an  oflBcer  called  the  supervisor  of  cullers,  appointed 
under  the  Canadian  Act,  8th  &  9th  Vict.,  c.  49,  and  the  number  of 
pieces  and  the  contents  of  each  piece  was  by  the  supervisor  set 
down  in  specifications  thereof.  By  these  specifications  it  appeared 
that  the  raft  contained  1,977  pieces  of  white  pine  and  104  pieces  of 
red  pine,  measuring  71,445  feet  of  timber.  On  the  28th  of  October, 
1856,  the  respondent  sold  the  raft  to  the  appellant  and  his  partners, 
John  Gilmour  and  David  Gilmour,  trading  under  the  firm  of  Allan 
Gilmour  &  Co.,  and  the  following  memorandum  of  the  bargain  was 
signed  by  the  parties  :  — 

Sold  Allan  Gilmour  &  Co.,  a  raft  of  timbernow  at  Carouge,  containing  white 
and  red  pine,  the  quantity  about  71,000  feet,  to  be  delivered  at  Indian  Cove 
Booms.  Price  for  the  whole,  l\d.  per  foot.  Payments,  one-third  cash,  one- 
third  sixty,  and  ninety  days  after  date. 

John  Supple,  A.  G.  &  Co. 
Quebec,  28th  of  October,  1856. 

At  the  same  time,  the  specification  made^  by  the  supervisor  was  de- 
livered by  the  respondent  to  the  appellant.  On  the  24th  of  that 
month  the  raft  was  taken  out  of  the  booms  at  Carouge,  and  by  steamer 
towed  down  the  river  to  the  Indian  Cove  Booms,  where  it  arrived 
between  four  and  five  o'clock  of  the  same  day.  It  was  about  high- 
water  when  the  raft  was  taken  out  of  the  booms  at  Carouge^  being 


626  GILMOUR  V.   SUPPLE.  CHAP.  II. 

the  i;sual  and  proper  time  for  the  purpose.  On  the  arrival  of  the 
steamer  with  the  raft  opposite  to  the  appellant's  booms,  called  the 
Indian  Cove  Booms,  the  steamer  was  about  to  put  the  raft  in  at 
the  upper  end  of  one  of  the  appellant's  wharves,  called  the  Long  Wharf; 
but  in  pursuance  of  the  direction  of  a  j^erson  named  Welch,  who  was 
the  appellant's  foreman  at  the  booms,  the  raft  was  placed  at  the  lower 
end  of  the  wharf,  and  was  made  fast  to  the  booms  there  by  the  crew 
of  the  steamer  and  a  man  in  the  emj^loy  of  the  respondent  named 
McCrea,  who  had  accompanied  the  raft  to  the  Indian  Cove  Booms. 
McCrea  immediately  went  to  the  appellant's  agent  there,  who  prom- 
ised to  order  Welch,  the  foreman  at  the  booms,  to  take  charge  of  the 
raft.  After  some  delay,  Welch,  accompanied  by  McCrea,  went  to  the 
raft,  taking  with  him  four  men  and  some  ropes  and  chains,  and  with 
these  ropes  and  chains  he  fastened  the  raft  to  the  booms.  Welch 
stated  that,  on  account  of  the  wet  and  the  state  of  the  tide,  he  could 
not  then  get  the  raft  into  the  booms,  but  that  he  would  do  so  in  the 
course  of  the  night.  At  that  time  the  weather  was  fine,  and  no  danger 
was  aj^prehended.  During  the  night  a  storm  arose,  and  Welch  endeav- 
ored by  means  of  an  anchor  and  chain  cable  to  secure  the  raft,  which 
had  never  been  taken  within  the  booms;  but*  notwithstanding  this, 
and  great  exertions  made  by  Welch,  the  raft  was  carried  away  by  the 
storm,  and  the  chief  part  of  it  was  lost ;  but  some  pieces  of  the  raft 
were  scattered  on  the  banks  of  the  river.  On  the  following  days  the 
appellant  sent  his  men  to  collect  as  much  of  the  wood  as  was  saved, 
and  this  was  put  into  the  booms. 

Conflicting  evidence  was  given  by  the  appellant's  witnesses  and  by 
the  i-espondent's  witnesses  in  reply,  as  to  what  constituted  a  receipt  of 
a  raft  of  timber  at  booms,  and  as  to  whether  the  raft  in  question  ar- 
rived in  reasonable  time  to  be  received  by  the  buyer.  From  the  evi- 
dence of  the  usage,  it  appeared  that  when  a  raft  is  sold  to  be  delivered 
at  booms,  the  seller  delivers  the  raft  outside  the  booms,  and  the  buyer 
is  at  the  expense  of  taking  the  raft  within  the  booms ;  that  where  a 
specification  is  made  out  by  the  supervisor,  showing  the  quantities  of 
wood  the  seller  sells  by  the  specification,  which  is  handed  to  the  buyer, 
and  when  the  raft  has  arrived  at  the  booms,  the  buyer  usually  checks 
the  number  of  j^ieces  by  the  specification,  which  the  witnesses  gener- 
ally described  as  "  like  checking  an  invoice  "  of  goods  ;  that  checking 
the  specification  was  sometimes  done  within  and  sometimes  without 
the  booms ;  and  that  generally  the  buyer  contented  himself  with 
averaging  the  measurement ;  but  when  there  was  a  deficiency  in  the 
number  of  pieces  or  measurement,  a  deduction  was  made  from  the 
price  accordingly. 

The  judge,  in  his  charge  to  the  jury,  said,  that  the  question  in  the 
end  must  be  decided  as  a  fact  by  the  jury,  whether  there  was  a  deliv- 
ery to  the  appellant  of  the  raft  or  not ;  that  if  they  were  satisfied  there 


SECT.  I.]  GILMOUR   V.   SUPPLE.  627 

was  an  actual  taking  possession  by  the  appellant  or  his  servants,  then 
that  the  respondent  was  entitled  to  recover.  That,  as  to  the  usage  of 
the  trade,  it  did  not  appear  to  him  that  there  had  been  any  very  clear 
settled  usage  shown,  except  that  delivery  at  a  boom,  meant  delivery  out- 
side of  the  boom.  The  fact  of  the  time  being  reasonable  for  the  deliv- 
ery, the  calmness  of  the  day  and  night  at  the  time  of  the  arrival  there, 
any  want  of  notice  to  the  appellant's  servant  of  objection  to  receive  it 
then,  and  the  mode  of  securing,  were  all  facts  to  go  to  the  jury,  to  be 
considered  by  them  in  coming  to  their  conclusion.  That  the  facts 
stated  by  appellant's  servants  as  to  their  conduct,  what  they  did  and 
said,  the  unreasonableness  of  the  hour,  the  state  of  the  tide,  and  the 
impossibility  of  ascertaining  the  quantity  of  the  timber,  were  all  facts 
to  be  considered  as  showing  that  appellant's  servants  did  not  receive 
the  raft.  And  he  told  the  jury  that  if  there  was  an  actual  delivery 
to  the  appellant's  servants,  and  taking  possession  by  them,  the  respon- 
dent was  entitled  to  a  verdict ;  but  if  the  securing  the  raft  by  them 
was  to  assist  in  preserving  the  property  merely  as  the  property  of  the 
respondent,  not  considering  that  they  were  taking  possession  of  it  for 
their  master,  then  their  acts  in  that  respect  ought  not  to  be  considered 
as  evidence  of  acceptance.  If  the  fastening  of  the  raft  by  the  appel- 
lant's servants  was  with  a  view  of  keeping  it  for  their  employers  to 
secure  it,  to  take  into  the  boom  when  the  tide  rose,  then  that  was 
evidence  of  its  being  received.  That  there  could  be  no  fair  pretence 
for  keeping  the  raft  outside  the  booms  to  measure  it,  as  the  raft  had 
been  measured  at  Carouge,  and  that  the  specifications,  which  were 
prima  fcicie  evidence  of  its  contents,  were  in  the  hands  of  the  appel- 
lant ;  that  the  fact  of  the  appellant's  servants  collecting  the  floating 
timber  after  the  loss,  was  evidence  to  be  taken  into  consideration, 
whether  the  raft  had  been  delivered  and  accepted  by  the  appellant. 

The  whole  evidence  went  to  the  jury,  and  they  found  that  the  raft 
had  been  delivered  to  and  received  by  the  appellant,  and  a  verdict 
was  entered  for  the  respondent  with  £2,307  Is.  Id.  damages. 

In  the  following  term  a  rule  nisi  was  obtained  to  set  aside  the  ver- 
dict and  enter  a  nonsuit,  pursuant  to  leave  reserved  at  the  trial,  or  for 
a  new  trial,  on  the  ground  that  the  verdict  was  against  law  and  evi- 
dence, and  for  misdirection  of  the  judge,  the  reception  of  improper 
evidence,  and  the  rejection  of  admissible  evidence ;  and  because  the 
verdict  was  perverse  and  against  evidence.  In  Trinity  Term,  1855, 
the  Court  of  Common  Pleas,  after  argument,  gave  judgment,  dis- 
charging the  rule. 

The  appellant  appealed  from  that  judgment  to  the  Court  of  Error 
and  Appeal  at  Toronto  in  Upper  Canada. 

The  grounds  of  appeal  were :  First,  that  there  could  be  no  delivery 
or  acceptance  of  the  property  sold,  sufticient  to  sustain  the  action, 
whilst  any  thing  remained  to  be  done  in  order  to  ascertain  the  quan- 


628  GILMOUR   V.   SUPPLE.  [CHAP.  II. 

tity  or  price.  That  according  to  the  terms  of  the  contract  and  the 
evidence,  it  was  necessary  that  there  should  have  been  a  counting  or 
examination  of  the  contents  of  the  raft,  after  its  arrival  at  the  appel- 
lant's booms,  before  there  could  have  been  such  a  delivery  or  accep- 
tance as  the  respondent  required  to  prove ;  and  that,  such  counting  or 
examination  never  having  taken  place,  there  was  no  delivery  or  accep- 
tance ;  and  the  appellant  submitted  that  the  respondent  failed  in  his 
action.  Second,  that  the  misdirection  complained  of  was  on  the  fol- 
lowing points :  in  telling  the  jury  that  the  conduct  of  the  appellant's 
partners  after  the  accident,  in  causing  part  of  the  wrecked  timber  to 
be  collected,  and  otherwise  dealing  with  the  property,  was  a  fact  which 
was  open  to  them  to  consider,  in  common  with  all  the  other  facts  of 
the  case,  as  evidence  of  an  admission  that  the  appellant  and  his  part- 
ners considered  themselves  responsible  for  the  loss ;  the  appellant  sub- 
mitting that  no  such  inference  could  be  legally  drawn  from  such  a  fact. 
The  appellant  ftirther  alleged,  that  the  judge  misdirected  the  jury  in 
telling  them  that  the  culler's  specifications  were  prmid  facie  evidence 
of  the  exact  contents  of  the  raft,  so  as  to  dispense  with  the  necessity 
for  the  appellant's  having  any  opportunity  to  ascertain  such  contents. 
The  appellant  submitted  that  the  specifications  were  in  themselves 
no  evidence  against  him  and  in  no  way  binding  upon  him.  Tliird, 
that  the  reception  of  improper  evidence  objected  to  by  the  appellant, 
consisted  in  allowing  admissions  and  offers  of  compromise,  stated  by  a 
witness  (Hamilton)  to  have  been  made  without  prejudice  and  with  a 
view  to  an  amicable  settlement,  to  go  to  the  jury  as  evidence  against 
the  appellant.  The  admissible  evidence  tendered  by  the  appellant 
and  rejected  at  the  trial,  was  the  declaration  or  statement  made  by 
the  deceased  watchman.  Kief,  to  White  in  the  ordinary  course  of  his 
duty,  as  to  the  statements  of  the  respondent's  raftsman,  McCrea,  at  the 
time  of  the  accident.  That  McCrea's  statements  were  material  evi- 
dence, formed  part  of  the  res  ^esto,  and  the  watchman's  report  to  his 
superior  of  those  statements  was  admissible  evidence.  Fourth,  the 
appellant  submitted  that  the  verdict  was  perverse  and  against  the 
weight  of  evidence  ;  that  the  plaintiff's  case  rested  wholly  on  the  evi- 
dence of  the  witness  McCrea,  who  alone  proved  any  thing  sufiicient  to 
constitute  a  delivery  of  the  raft ;  and  that  his  evidence  was  contra- 
dicted by  all  the  witnesses  of  the  appellant,  five  or  six  in  number,  and 
according  to  their  evidence  there  was  no  delivery,  direct  or  indirect. 

The  respondent  contended,  in  his  answer  to  the  grounds  of  appeal, 
that  the  verdict  was  right,  and  the  judgment  of  the  court  discharging 
the  appellant's  rule  correct ;  that  there  was  legal  proof  of  a  delivery 
and  acceptance  by  the  appellant,  or  of  either  a  delivery  or  an  accep- 
tance sufiicient  in  law;  that  the  contract  of  sale  was  complete,  and 
that  the  property  in  the  timber  had  passed  to  the  appellant  before  the 
loss ;  that  nothing  remained  to  be  done  in  the  way  of  counting  or 


SECT.  I.]  GILMOUR   V.    SUPPLE.  629 

ascertaining  the  quantity  contained  in  the  raft  to  prevent  the  property 
passinor  or  to  leave  the  risk  in  the  respondent ;  and  that  there  was  no 
substantial  misdirection  at  the  trial,  nor  rejection  of  legal  or  admission 
of  illegal  evidence. 

The  judgment  of  the  Court  of  Common  Pleas  was  affinned  by  the 
Court  of  Error  and  Appeal,  on  the  5th  of  March,  1856,  and  the  appeal 
dismissed  Avith  costs. 

Against  this  judgment  the  appellant  brought  the  present  appeal. 

The  Attorney-General  (Sir  Fitz-Eoy  Kelly),  Mr.  Wilde,,Ql.  C,  and 
Mr.  W.  Murray,  for  the  appellant. 

The  judge  at  the  trial  ought  to  have  explained  to  the  jury  the  legal 
rights  of  the  parties  under  the  contract ;  that  the  fact  of  the  timber 
having  to  be  measured,  the  property  did  not  in  law  vest  in  the  appel- 
lant, in  order  that  they  might  put  a  proper  construction  upon  the  acts 
and  conduct  of  the  parties.  We  submit  that  in  law  the  verdict  should 
have  been  entered  for  the  appellant.  The  measurement  of  the  raft  at 
the  place  of  delivery  was  an  act  to  be  done  by  the  seller  before  the 
price  could  be  ascertained,  and  was  a  condition  precedent  to  the  abso- 
lute vesting  of  the  property  in  the  appellant.  Logan  v.  Le  Mesurier ' 
is  identical  with  the  present  case.-  .  .  .  That  case  falls  within  the  piin- 
ciple  laid  down  in  Simmons  v.  Swift.^  There  the  owner  of  a  stack  of 
bark  entered  into  a  contract  to  sell  it  at  a  certain  price  per  ton,  and 
the  purchaser  agreed  to  take  and  pay  for  it  on  a  day  sjiecified,  and  a 
part  was  weighed  and  delivered  to  him.  In  such  circumstances,  the 
Court  of  King's  Bench  held  that  the  property  in  the  residue  did  not 
vest  in  the  purchaser  until  it  was  weighed.  [Sir  Cresswell  Cress- 
well  :  In  that  case,  Littledale,  J.,*  doubted  Avhether  the  property  did 
not  pass  by  the  contract,  and  that  doubt  he  thought  was  not  incon- 
sistent with  Hanson  v.  Meyer.^]  In  Hanson  v.  Meyer,  it  was  part  of 
the  contract  that  the  starch  should  be  weighed  by  the  vendor  before 
delivery,  and  it  was  determined  by  the  Court  that  the  absolute  prop- 
erty did  not  vest  in  the  purchaser  till  it  was  weighed.  The  cases  of 
Rugg  V.  Minett,*'  Wallace  v.  Breeds,'^  Austen  v.  Craven,*  Acraman  v 
Morrice,^  Shepley  v.  Davis,^"  Busk  v.  Davis,"  and  Godts  v.  Rose,^'-  show 
that  where  any  thing  remains  to  be  done  by  the  seller,  until  he  has 
(Jone  it  the  property  does  not  pass  to  the  purchaser.  No  opportunity 
was  given  the  appellant  of  checking  the  specifications  or  measure- 
ment of  the  timber  which  the  contract  provided.  The  fact  of  a  pub- 
lic officer  under  the  Canadian  Act,  8th  &  9th  Vict.  c.  49,  having  at  the 

1  6  Moore's  P.  C.  Cases,  116. 

2  The  learned  counsel  here  stated  the  case  cited.  —  Ed. 

3  5  Bar.  &  Cr.  857.  *  5  Bar.  &  Cr.  864.  »  6  East,  614. 

6  11  East,  210.  1  13  East,  522.  8  4  Taunt.  644. 

9  8  Com.  Ben.  Rep.  449.  '"  5  Taunt.  617. 

11  2  Mau.  &  Sel.  397.  ^'-  17  Com.  Ben.  Rep.  229. 

VOL.    I.  41 


s> 


630  GILMODR   V.    SUPPLE.  [CHAP.  II. 

respondent's  instance  measiai-ed  the  timber,  cannot  affect  the  appellant's 
right  to  have  the  same  measured  by  himself.  He  was  not  bound  by 
the  specifications  as  to  the  quantity.  There  was  no  evidence  that  the 
performance  of  this  necessary  act  had  been  waived  by  the  appellant, 
or  of  any  authority  from  the  buyer  to  his  servants  to  accept  the  raft 
without  measurement.  Again,  the  seller  had  a  lien  on  the  timber  until 
the  cash  Avas  paid  and  the  bills  given,  and  it  nowhere  appears  in  the 
evidence  that  he  authorized  his  servant  to  or  intended  to  abandon  such 
lien.  The  right  of  property  in  the  raft  at  the  time  of  the  stoim, 
was,  therefore,  still  in  the  respondent,  and  the  loss  which  happened 
was  at  his  risk.  There  was  no  delivery  to  the  appellant,  Startup  v. 
Macdonald.^ 

Mr.  Hugh  Hill,  Q.  C,  and  Mr.  Unthank,  for  the  respondent. 

The  sale  of  the  raft  was  complete ;  the  quantity  of  the  timber  in  it 
had  already  been  ascertained,  and  nothing  remained  in  the  respondent 
but  to  deliver  the  raft  at  the  Indian  Cove  Booms,  and  upon  delivery 
the  property  immediately  vested  in  the  appellant.  Nothing  'more  re- 
mained to  be  done  by  the  seller,  the  transaction  was  perfect  upon  the 
ascertainment  of  the  quantity  of  the  timber  and  delivery  to  the  appel- 
lant. Tansley  v.  Turner,^  Rohde  v.  Thwaites,^  Swanwick  v.  Sothern,* 
Alexander  v.  Gardner.^  The  case  of  Logan  v.  Le  Mesui-ier,^  relied  upon 
by  the  appellant,  differs  materially  from  the  present.  There  the  raft  of 
timber  was  by  the  contract  to  be  measured  off  on  its  arrival  at  the 
boom.  Here  it  was  measured  off  before  the  sale,  and  its  quantity 
known.  Whether  there  was  a  delivery  or  not,  was  a  question  for  the 
jury,  and  the  judge  who  tried  the  case  below  properly  submitted  that 
question  to  them,  and  they  found  that  there  had  been  a  delivery  to  the 
appellant.  The  collection  of  the  pieces  of  timber  by  and  at  the  expense 
of  the  appellant's  firm  was  an  important  fact  in  the  case,  as  it  tended 
to  shew  that  the  appellant  and  his  partners  regarded  the  raft  as  deliv- 
ered to  them,  and  as  having  become  their  property. 

The  consideration  of  the  judgment  was  reserved,  and  now  delivered 

The  Right  Hon.  Sir  Ceesswell  Cresswell.  This  action  was  origin- 
ally brought  in  the  Court  of  Common  Pleas  by  the  respondent  against 
the  appellant.  The  first  count  of  the  declaration  alleged  that  in  coif- 
sideration  that  the  plaintiff  would  sell  and  deliver  to  the  defendant  a 
raft  of  timber  then  lying  at  Carouge,  containing  about  71,000  feet,  and 
deliver  the  same  at  Indian  Cove  Booms,  at  the  price  of  7|c?.  per  foot, 
amounting  to  £2,307  Is.  Id.,  the  defendant  undertook  to  pay  for  the 
same,  one-third  in  cash,  one-third  at  sixty  days,  and  one-third  at  ninety 
days  from  the  delivery.     Averment  of  delivery  at  Indian  Cove  Booms, 

1  6  Man.  &  Gr.  593.  2  2  Bingh  N.  C.  151. 

3  6  Bar.  &  Cr.  388.  *  9  Ad.  &  Ell.  895. 

6  1  Bingh.  N.  C.  671.  6  6  Moore's  P.  C.  Cases,  116. 


SECT.  I.]  GILMOUR   V.    SUPPLE.  631 

and  non-payment.  Count  for  goods  sold  and  delivered.  Plea,  non 
assumpsit.  Secondly,  to  the  first  count,  that  the  plaintiff  did  not  de- 
liver the  raft. 

At  the  trial  the  plaintiff  gave  in  evidence  that  he  was  possessed  of  a 
raft  of  timber  lying  at  Carouge,  and  that  on  the  20th  of  October,  1853, 
he  entered  into  a  contract  in  writing  with  the  defendant  in  these 
words :  — 

Sold  Allan  Gilmour  &  Co.,  a  raft  of  timber  now  at  Carouge,  containing  white 
and  red  pine,  the  quantity  about  71,00U  feet,  to  be  delivered  at  Indian  Cove 
Booms ;  price  for  the  whole,  lid.  per  foot ;  payments  one-third  cash,  sixty  and 
ninety  days'  date. 

John  Supple. 

Quebec,  20th  October,  1853.  A.  G.  &  Co. 

The  contract  was  written  by  defendant,  and  signed  by  him  "  A.  G. 
&  Co.,"  and  by  plaintiff,  "John  Supple."  He  also  proved  that  before 
the  contract  was  made  the  raft  had  been  measured  for  him  by  an  ofiicer 
aj^pointed  under  a  Canadian  act,  by  whom  a  specification  was  made 
out,  shewing  the  contents  of  each  log,  and  making  a  total  of  71,443 
feet.  That  specification  was  given  by  the  plaintiff  to  the  defendant 
before  the  contract  was  made ;  he  therefore  knew  what  quantity  of 
timber  the  seller  would  charge  him  with,  notwithstanding  the  fonri  of 
the  written  contract,  which  left  it  unascertained.  The  defendant  re- 
tained the  specification,  and  sent  it  over  to  Indian  Cove,  where  he  had 
booms  and  an  establishment  for  receiving  and  storing  timber. 

The  evidence  shewed  it  to  be  usual  for  purchasers  of  rafts  sometimes 
before,  sometimes  after,  they  were  placed  within  the  booms,  to  check 
over  the  logs  received  with  the  specification  previously  delivered,  to 
see  that  they  corresponded  with  it ;  but  there  was  no  evidence  of  its 
being  usual  to  measure  the  contents  of  each  log  to  ascertain  the  num- 
ber of  feet  contained  in  it.  It  was  also  proved  that  delivery  at  a  boom 
meant  delivery  outside  the  boom. 

The  raft  was  towed  down  the  river  from  Carouge,  or  Cap  Rouge,  to 
Indian  Cove  (about  eight  miles)  by  a  steamboat,  employed  by  the 
plaintiff;  one  of  his  men  went  with  it,  and  when  at  Indian  Cove  gave 
notice  to  the  defendant's  servants  there  that  it  had  arrived,  and  they 
together  fastened  it  outside  the  booms.  There  was  conflicting  evi- 
dence as  to  whether  possession  of  the  raft  was  given  up  by  the  jilain- 
tiff's  servant,  and  taken  by  the  defendant's.  In  the  night  a  storm 
arose,  the  raft  was  broken  up  and  dispersed,  and  a  great  portion  of  it 
lost. 

The  judge  told  the  jury  that  if  there  was  an  actual  delivery  to  the 
defendant's  servants,  and  taking  possession  by  them,  the  plaintift'  was 
entitled  to  recover,  but  that  otherwise  they  should  find  for  the  defend- 
ant. The  jury  found  for  the  plaintiff.  The  defendant  moved,  in  pur- 
suance of  leave  reserved  for  a  nonsuit,  or  verdict  for  defendant,  on  the 


632  GILMOUR   V.    SUPPLE.  [CHAP.  II. 

ground  that  there  could  be  no  deUvery  or  acceptance  of  the  property- 
sold  sufficient  to  sustain  the  action,  while  any  thing  remained  to  be 
done  in  order  to  ascertain  the  quantity  or  price  ;  that,  according  to  the 
terms  of  the  contract  and  the  evidence,  it  was  necessary  that  there 
should  have  been  a  counting  or  examination  of  the  contents  of  the  raft 
after  its  arrival  at  the  defendant's  booms,  before  there  could  have  been 
such  a  delivery  or  acceptance  as  the  plaintiiF  was  required  to  prove, 
and  that,  such  counting  or  examination  never  having  taken  place,  there 
was  no  delivery  or  acceptance.  It  was  also  contended  that  the  verdict 
was  against  evidence;  but  it  is  not  now  necessary  to  consider  that 
question,  it  being  admitted  that  if  the  property  was  changed  the  ver- 
dict must  stand.  A  rule  to  show  cause  was  granted,  and  after  argu- 
ment discharged. 

The  defendant  then  appealed  to  the  Court  of  Error  and  Appeal,  but 
the  judgment  of  the  Court  of  Common  Pleas  was  affirmed,  and  the 
appeal  dismissed.  From  that  judgment  the  defendant  appealed  to  Her 
Majesty  in  Council ;  and  here,  as  in  the  Canadian  courts,  it  was  con- 
tended that,  by  virtue  of  this  contract  and  the  acts  done  in  pursuance 
of  it,  the  property  in  the  raft  did  not  vest  in  the  defendant,  but  was 
still  in  the  seller  and  at  his  risk  when  the  loss  happened. 

It  is  impossible  to  examine  the  decisions  on  this  subject  without 
being  struck  by  the  ingenuity  with  which  sellers  have  contended  that 
the  property  in  goods  contracted  for  had  or  had  not  become  vested  in 
the  buyers,  according  as  it  suited  their  interest,  and  buyers  or  their 
representatives  have,  with  equal  ingenuity,  endeavored  to  show  that 
they  had  or  had  not  acquired  the  property  in  that  for  which  they  con- 
tracted; and  judges  have  not  unnaturally  appeared  anxious  to  find 
reasons  for  giving  a  judgment  which  seemed  to  them  most  consistent 
with  natural  justice.  Under  such  circumstances,  it  cannot  occasion 
much  surprise  if  some  of  the  numerous  reported  decisions  have  been 
made  to  depend  upon  very  nice  and  subtle  distinctions,  and  if  some  of 
them  should  not  appear  altogether  reconcilable  with  each  other.  Never- 
theless, we  think  that  in  all  of  them  certain  rules  and  principles  have 
been  recognized,  by  the  application  of  which  to  this  case  we  may  be 
enabled  to  arrive  at  a  correct  judgment  upon  it. 

By  the  law  of  England,  by  a  contract  for  the  sale  of  specific  ascei-- 

ttained  goods  the  property  immediately  vests  in  the  buyer,  and  a  right 
to  the  price  in  the  seller,  unless  it  can  be  shown  that  such  was  not  the 
intention  of  the  parties.  Various  circumstances  have  been  treated  by 
our  courts  as  sufficiently  indicating  such  contrary  intention.  If  it 
appears  that  the  seller  is  to  do  something  to  the  goods  sold  on  his  own 
behalf^  the  property  will  not  be  changed  until  he  has  done  it,  or  waived 
his  right  to  do  it. 

The  case  of  Hanson  v.  Meyer  (6  East,  614),  one  of  the  earliest  re- 
ported on  this  subject,  furnishes  an  instance  of  this  kind.     Meyer  had 


SECT.  I.]  GILMOUR  V.   SUPPLE.  633 

a  quantity  of  starch,  weight  unknowii,  lying  in  the  warehouse  of  a 
third  person.  A  broker  employed  by  a  person  named  Wallace  pur- 
chased the  whole  of  the  starch  of  Meyer,  more  or  less,  whatever  it  was, 
at  £6  per  cwt.;  it  was  in  papers;  the  weight  was  to  be  afterwards  ascer- 
tained at  the  price  aforesaid.  The  mode  of  delivery  in  such  cases  was 
stated  to  be  as  follows :  "  The  seller  gives  the  buyer  a  note  addressed 
to  the  warehouse-keeper,  to  weigh  and  deliver  the  goods  to  the  buyer. 
This  note  is  taken  to  the  warehouse-keeper,  and  is  his  authority  to 
weigh  and  deliver  the  goods  to  the  vendee."  Such  a  note  Avas  given, 
and  on  two  several  days  the  warehouse-keeper  in  jiursuance  of  it 
weighed  and  delivered  21  cwt.  1  qr.  6  lb.  and  15  cwt.  1  qr.  4  lb. 
Before  the  residue  had  been  weighed  or  delivered,  Wallace  became 
bankrupt,  and  Meyer  then  took  it  away  from  the  warehouse,  and  the 
assignees  of  Wallace  sued  him  in  trover  for  it.  The  court  held  that 
they  could  not  recover,  for  that  the  particular  terms  of  the  contract 
made  weighing  a  condition  precedent  to  the  absolute  vesting  of  the 
property,  and  that  the  seller  did  not,  by  weighing  and  delivering  part, 
waive  the  preliminary  act  of  weighing  in  respect  of  any  part  of  the 
commodity  contracted  for.  The  only  authority  given  to  the  warehouse- 
keeper  was  to  weigh  and  deliver,  and  unless  he  weighed  he  had  no 
authority  to  deliver.  But  it  would  seem  that  if  the  warehouse-keeper 
had  been  authorized  to  deliver  without  weighing,  and  possession  had, 
under  that  authority,  been  given  to  the  purchaser,  the  property  would 
have  vested  absolutely  in  him,  and  the  seller  would  have  waived  his 
right  to  weigh  before  delivery. 

Another  rule  may  be  extracted  from  the  case  of  Rugg  v.  Minett,  11 
East,  210,  namely,  that  where  the  seller  is  to  do  some  act  for  the  bene- 
fit of  the  buyer,  to  place  the  goods  sold  in  a  state  to  be  delivered,  until 
he  has  done  it  the  property  does  not  pass.  In  this  case  it  was  for  the 
interest  of  the  seller  to  contend  that  it  did  pass.  The  circumstances 
were  as  follow :  A  quantity  of  turpentine  in  casks  was  sold  by  auction 
for  the  defendant,  in  whose  warehouse  it  was  lying.  The  casks  were 
marked  as  of  a  certain  weight,  and  it  was  agreed  that  they  should  be 
taken  at  that  weight ;  but  it  was  further  agreed  that  they  should  be 
filled  up  by  the  seller.  The  plaintiff  bought  thirty  casks,  and  paid 
money  on  account.  Twenty  casks  were  afterwards  filled  up  by  the 
warehouseman  of  the  defendant ;  but  before  the  other  ten  could  be 
filled  the  whole  were  consumed  by  fire.  It  was  held  that  the  property 
in  the  twenty  passed,  but  not  in  the  ten ;  and  that  the  loss  must  be 
borne  by  the  parties  respectively  in  those  proportions. 

So,  also,  if  an  act  remains  to  be  done  by  or  on  behalf  of  both  parties 
before  the  goods  are  delivered,  the  projicrty  is  not  changed  ;  of  which 
Wallace  v.  Breeds,  13  East,  522,  furnishes  an  instance,  where  Lord 
Ellenborough  observed,  that  the  Courts  had  frequently  laid  hold  of 
such  circumstances  as  existed  in  that  case  to  retain  the  property  in 


634  GILMOUR   V.    SUPPLE.  [CHAP.  II. 

favor  of  an  unpaid  seller;  and  that  rule  was  acted  upon  by  the  Court 
of  King's  Bench  in  Simmons  v.  Swift,  5  Barn.  &  Cr.  857,  Avhich  was  an 
action  for  the  price  of  a  stack  of  bark,  sold  at  £9  5s.  per  ton  of  21  cwt. 
It  appeared  that  after  the  sale  it  was  agreed  between  the  parties  that 
the  bark  should  be  weighed  by  two  persons,  one  of  whom  was  named 
by  the  seller,  the  other  by  the  buyer.  Part  was  weighed  and  delivered  ; 
the  rest  was  much  damaged  by  a  flood  before  it  was  weighed,  where- 
upon the  buyer  refused  to  take  it.  The  court  held  that  as  the  bark 
was  to  be  weighed  before  delivery  to  ascertain  the  price,  and  that  act 
had  not  been  done,  the  pi-operty  remained-  in  the  seller,  and  that  he 
must  bear  the  loss.  There,  by  express  agreement  between  them,  both 
parties  were,  by  their  agents,  to  take  part  in  the  act  of  weighing.  But 
the  case  of  Logan  v.  Le  Mesurier,  6  Moore,  P.  C.  Cases,  116,  was  prin- 
cipally relied  on  by  the  counsel  for  the  appellant.  .  .  .^  That  case  differs 
very  materially  from  the  present.  In  this  case  the  terms  of  the  written 
contract  do  not  show  that  any  future  measurement  of  the  raft  was  con- 
templated. The  seller  had  had  the  raft  measured  by  a  person  whos6  posi- 
tion would  be  a  voucher  for  his  accuracy.  The  specification  showing 
the  exact  measurement  of  each  log  was  handed  by  him  to  the  jDur- 
chaser,  and  was  in  his  hands  at  the  time  when  the  contract  was  entered 
into  ;  he  retained  it,  and  sent  it  over  to  his  servants  at  the  place  where 
the  raft  was  to  be  delivered,  in  order  that  they  might  check  the  raft 
delivered  by  it.  There  is  nothing  in  these  circumstances  from  which  it 
can  be  inferred  that  the  seller  was  to  make  any  further  measurement 
of  the  raft  in  order  to  ascertain  the  price,  which  would  be  computed 
from  the  measurement  already  made.  The  buyer  might,  for  his  own 
satisfaction,  as  was  said  in  Swan  wick  v.  Sothern,  9  Ad.  &  Ell.  895, 
measure  it  when  delivered,  but  the  seller  had  no  such  privilege  or  duty ; 
and  after  his  servant  had  given  up  possession,  and  the  servants  of  the 
defendants  had  taken  it,  he  could  neither  have  claimed  to  resume  pos- 
session of  the  raft  as  being  his  projjerty,  nor  on  the  ground  that  he  had 
a  lien  upon  it  for  the  price.  Moreover,  in  this  case  the  evidence  showed 
that,  according  to  the  usage  of  the  trade,  neither  party  would  have 
measured  the  timber  at  the  place  of  delivery,  so  as  to  ascertain  the 
amount  to  be  paid  for  it.  If  the  buyer  had  compared  the  logs  deliv- 
ered with  the  specification,  still  that  document  would  have  been  referred 
to  for  the  purpose  of  ascertaining  their  contents.  There  was,  there- 
fore, nothing  more  to  be  done  by  the  seller  on  his,  own  behalf;  he  had 
ascertained  the  whole  price  of  the  raft  by  the  measurement  previously 
made ;  nor  was  there  any  thing  to  be  done  by  him  for  the  buyer :  the 
seller  had,  according  to  his  contract,  conveyed  the  raft  to  Indian  Cove, 
and  according  to  the  finding  of  the  jury  had  delivered  it  there.  Nor 
was  there  any  thing  further  to  be  done  in  which  both  were  to  concur,  ' 

1  The  learned  judge  here  stated  that  case.  —  Ed. 


SECT.  I.]  OLYPHANT   V.    BAKER.  635 

as  in  Simmons  v.  Swift ;  the  case,  therefore,  depends  upon  the  effect  of 
a  contract  for  the  sale  of  certain  ascertained  goods,  without  any  thing 
to  limit  or  control  its  legal  operation.  By  such  a  contract  the  prop- 
erty was  changed,  and  the  loss  must  fall  on  the  buyer. 

Their  lordships  must,  therefore,  humbly  advise  Her  Majesty  to  affirm 
the  judgment  appealed  from,  and  to  dismiss  this  appeal,  with  costs. 


OLYPHANT  V.   BAKER. 
Supreme  Court  op  New  York,  May  Term,  1848. 

[Reported  in  5  Denio,  379.] 

Motion  to  set  aside  the  report  of  a  referee.  The  action  was  assump- 
sit for  the  balance  of  the  purchase  price  of  a  quantity  of  barley.  Plea, 
non  assumpsit.  A  contract  in  writing,  signed  by  the  defendant  only, 
was  given  in  evidence  by  the  plaintiff,  as  follows :  — 

I  hereby  agree  to  sell  seven  hundred  bushels  of  barley  (or  what  I  may  have 
in  store  at  Mr.  P.  Church,  Jr.'s,  warehouse,)  to  Abner  Baker  [the  defendant,] 
at  the  rate  of  forty-five  cents  per  bushel ;  to  be  delivered  when  said  Baker  may 
call  for  it.  I  agree  to  hold  the  barley  free  of  storage  until  the  first  day  of  Jan- 
uarv  next.  The  barlev  is  to  be  weighed  out  of  the  warehouse,  unless  Mr.  Baker 
shall  agree  to  take  the  weight  on  the  books.  I  hereby  acknowledge  the  receipt 
of  one  hundred  dollars  on  the  above  contract. 

Mount  Morris,  Dec.  15,  1845. 

The  plaintiff  owned  the  warehouse  called  P.  Church,  Jr.'s,  in  the 
contract,  and  before  the  contract  was  made  had  rented  it  to  one  Camp 
fi'om  and  after  the  first  day  of  Januaiy  then  next ;  and  of  this  he  in- 
formed the  defendant  when  the  contract  was  made.  On  that  day,  or 
very  soon  afterwards,  the  defendant  saw  Camp,  and  agreed  Avith  him 
for  the  storage  of  the  barley,  for  him,  the  defendant,  fi'om  the  first  of 
January  until  the  opening  of  navigation  the  ensuing  spring.  Camp 
took  possession  of  the  warehouse  under  his  lease  on  the  first  day  of 
January,  the  barley  still  remaining  in  it.  After  this  arrangement  with 
Camp  and  on  the  twenjty-second  day  of  December,  the  plaintiff's  clerk 
called  on  the  defendant  with  a  bill  of  the  barley  and  asked  for  pay- 
ment. The  defendant  paid  him  S300,  and  promised  to  pay  the  balance, 
$95,  the  next  day.  The  witness  could  not  say  that  the  bill  men- 
tioned the  number  of  bushels  of  the  barley,  but  it  contained  the  aggre- 
gate amount  that  it  came  to,  and  the  witness  did  state  to  the  defendant 
that  there  was  a  little  over  1100  bushels  of  it.  The  exact  quantity,  he  said, 


\ 


636  OLYPHANT   V.    BAKER.  [CHAP.  II. 

was  a  little  over  1112  bushels.     About  the  middle   of  January,  the 
building  with  the  grain  in  it  was  accidentally  destroyed  by  fii*e. 

The  referee  reported  in  favor  of  the  defendant. 

a.  p.  Wisner  and  0.  Hastings^  for  the  plaintiff,  moved  to  set  aside 
the  report. 

E.  D.  Smith  and  E.  Gnffi?i,  for  the  defendant. 

Whittlesey,  J.  The  sole  question  here  is  whether  there  was  a 
delivery  of  the  barley  to  the  defendant,  who  was  the  purchaser.  In 
many  cases  of  sales  of  personal  property  it  is  a  very  nice  and  difficult 
question  to  determine  whether  there  has  been  a  delivery  —  whether 
the  title  has  passed.  In  this  case  the  contract  was  executory.  The 
quantity  of  barley  was  uncertain,  and  as  it  was  sold  by  the  bushel,  the 
whole  price  could  not  be  known  until  the  quantity  was  ascertained. 
The  seller  was  entitled  to  immediate  payment ;  at  any  rate  he  was  en- 
titled to  payment  before  he  parted  with  the  property.  The  purchaser 
was  entitled  to  the  delivery  whenever  he  chose  to  ask  for  it,  but  he 
could  not  claim  to  have  it  delivered  without  paying  the  price.  He  was 
entitled  to  have  it  weighed  out  to  him,  if  he  chose,  for  the  pui-pose  of 
ascertaining  the  exact  quantity  and  aggregate  amount  of  the  purchase- 
money.  He  could,  however,  if  he  chose,  take  the  weight  as  it  appeared 
from  the  books.  If  he  had  taken  such  weight  as  the  true  quantity,  and 
paid  the  whole  price  according  to  such  weight,  the  barley  would  have 
been  deemed  to  have  been  delivered  from  the  time  of  such  payment. 
Lansing  v.  Turner,  2  John.  13. 

But  there  was  a  sale  by  weight  or  measure  at  so  much  per  bushel, 
and  in  such  cases,  as  it  is  necessary  that  the  thing  should  be  weighed 
or  measured  before  the  price  can  be  ascertained,  the  contract  is  not 
consummated  so  as  to  change  the  property  until  such  weighing  or 
measurement  is  had  ;  but  it  remains  at  the  risk  of  the  vendor.  Pothier, 
Traite  du  Contrat  de  Vente,  part  4,  308.  In  our  reports  it  is  held 
that  when,  after  a  sale  of  goods,  some  act  remains  to  be  done  by  the 
vendor  before  delivery,  the  proj^erty  does  not  vest  in  the  purchaser, 
but  continues  at  the  risk  of  the  vendor.  Such  previous  act  may  be 
counting,  weighing,  measuring,  or  inspecting,  &c.  M'Donald  v.  Hew- 
ett,  15  John.  349 ;  Outwater  v.  Dodge,  7  Cowen,  85  ;  Hanson  v.  Meyer, 
6  East,  614 ;  Rapelye  v.  Mackie,  6  Coweij,  250 ;  Russell  v.  Nicoll,  3 
Wend.  112 ;  Ward  v.  Shaw,  7  id.  404 ;  Downer  v.  Thompson,  2  Hill, 
137.  Even  if  there  has  been  a  delivery  to  the  vendee,  and  any  thing 
remains  to  be  done  preparatory  to  ascertaining  the  price  of  the  goods, 
the  delivery  does  not  divest  the  title  of  the  vendor  until  the  price  be 
ascertained  and  paid.     Andrew  v.  Dieterich,  14  Wend.  31. 

In  this  case  it  does  not  clearly  appear  that  the  precise  quantity  of 
the  barley  was  ascertained  and  communicated  to  the  defendant.  The 
witness  says,  indeed,  that  there  were  1112  bushels  and  some  pounds,  and 
that  he  made  out  a  bill  and  presented  it  to  the  defendant ;  but  he  does 


SECT.  I.]  OLYPHANT   V.    BAKER,  637 

not  state  that  the  precise  quantity  of  the  barley  was  put  in  such  Inll ; 
and  on  liis  cross-examination  he  states  that  he  is  not  quite  certain  that 
he  stated  the  precise  amount  of  the  barley  in  the  bill,  but  he  did  state 
to  him  there  was  a  little  over  1100  bushels.  The  defendant  took  the 
bill,  paid  the  greater  part,  and  promised  to  pay  the  balance  the  next 
day.  Is  this  evidence  that  the  defendant  agreed  to  take  the  weight  as 
it  appeared  on  the  books?  If  it  is  to  be  so  taken,  as  no  objection  was 
made  to  the  weight  in  the  bill,  is  it  to  be  deemed  that  the  plaintiff 
assented  to  parting  Avith  the  property  until  the  balance  of  the  pur- 
chase-money was  paid  ?  The  plaintiff  had  a  right  to  insist  that  the 
whole  price  should  be  paid  before  the  property  was  delivered,  and  if 
the  defendant  had  assumed  to  dispose  of  it  before  the  payment  of  this 
balance,  or  had  undertaken  to  remove  it,  and  it  should  be  found  that 
he  was  insolvent,  could  not  the  plaintiff  claim  the  property  ? 

The  making  of  the  bargain  for  the  storage  of  the  barley  after  the 
1st  of  January  was  doubtless  a  strong  circumstance,  but  was  not  of 
itself  conclusive.  There  is  a  class  of  cases  which  determine  that  thoucrh 
something  remains  to  be  done  to  ascertain  price,  &c.,  yet  if  it  clearly 
appears  to  be  the  intention  of  the  parties  that  the  property  shall  be 
deemed  to  be  delivered  and  the  title  pass,  it  will  be  so  held.  Macom- 
ber  V.  Parker,  13  Pick.  178;  Riddle  v.  Varnum,  20  id.  280.  There 
does  not  appear  to  be  any  thing  in  this  case  to  show  any  different  in- 
tention of  the  parties  than  that  which  the  law  presumes  from  their 
acts.  The  case  is  not  analogous  to  those  above  referred  to.  It  is  one 
of  some  nicety,  but  on  the  whole  I  think  the  motion  to  set  aside  the 
report  of  the  referee  should  be  denied. 

Beardsley,  C.  J.  It  is  a  general  rule  of  the  common  law  that  a 
mere  contract  for  the  sale  of  goods,  where  nothing  remains  to  be  done 
by  the  seller  before  making  delivery,  transfers  the  right  of  property, 
although  the  price  has  not  been  paid,  nor  the  thing  sold  delivered  to 
the  purchaser.  Long  on  Sales,  42 ;  Ross  on  Vend.  &  Pur.  1 ;  2  Kent, 
492 ;  Simons  v.  Swift,  5  B.  &  C.  857 ;  Tarling  v.  Baxter,  6  id.  360.  In 
this  case  the  price  per  bushel  for  the  barley  was  specified  in  the  writ- 
ten contract,  although  the  precise  quantity  sold  was  not  then  known 
to  the  parties ;  that,  according  to  the  contract,  was  to  be  ascertained 
by  weighing  the  barley,  unless  the  defendant  should  agree  to  take  it  as 
the  weight  might  appear  on  the  warehouse  books.  When  the  contract 
of  sale  was  made,  it  was  impracticable  to  determine  what  amount,  in 
the  whole,  was  to  be  paid  by  the  purchaser,  for  that  would  depend 
upon  the  quantity  of  barley  sold,  to  be  ascertained  in  one  of  the  modes 
agreed  upon ;  it  may  therefore  well  be  that  this  contract  of  sale  did 
not,  ipso  facto  et  eo  instantly  transfer  the  right  of  property  to  the  pur- 
chaser. 

The  barley  was  not  afterwards  weighed  by  any  one  ;  that  mode  of 
ascertaining  the  amount   of  the   ijurchase-money   may   therefore  be 


638  OLYPHANT   V.    BAKER.  [CHAP.  II. 

thrown  out  of  view.     Let  us,  however,  see  if  it  was  not,  in  another 
way,  completely  adjusted  between  the  parties. 

About  a  week  after  the  contract  of  sale  had  been  entered  into  the 
plaintiiF's  clerk  made  out  a  bill  of  the  barley  sold  to  the  defendant, 
stating  the  amount  which  it  came  to,  although  it  does  not  appear  that 
the  precise  quantity  was  mentioned.  This  bill  was  handed  to  the  de- 
fendant and  payment  demanded.  He  paid  thi'ee  hundred  dollars 
thereupon,  and  according  to  the  evidence  agreed  to  pay  the  balance, 
that  is,  ninety-five  dollars,  within  a  day  or  two.  It  is  but  reasonable 
to  understand  from  the  evidence  on  this  point,  although  not  stated  in 
so  many  words,  that  the  bill  Avas  made  out  from  the  warehouse  books, 
and  if  so  the  defendant's  engagement  to  pay  the  balance  according  to 
the  bill,  was  an  unequivocal  agreement  to  abide  by  the  weight  of  the 
barley  as  stated  in  said  books.  But  even  if  the  bill  was  not  made  out 
as  I  have  supposed,  but  was  a  mere  estimate  of  the  quantity,  the  assent 
of  the  defendant  to  that  estimate,  as  proved  by  the  payment  of  three 
hundred  dollars  on  the  bill  and  his  agreement  to  pay  the  balance  as 
stated,  would  entirely  supersede  the  necessity  of  ascertaining,  in  any 
other  way,  the  weight  of  the  barley  sold  and  the  consequent  amount 
of  the  purchase-money.  From  this  time,  as  the  agreement  for  the  sale 
was  absolute,  and  the  amount  of  the  purchase-money  had  been  fully 
adjusted  between  the  parties,  the  right  of  property,  as  I  think,  clearly 
"vested  in  the  purchaser.  Nothing  then  remained  to  be  done  by  the 
seller  before  delivery  was  made ;  and  although  he  still  had  possession 
and  a  lien  for  the  purchase-money,  the  right  of  property  was  in  the 
buyer,  and  with  it  the  risk  of  all  accidents  devolved  on  him.  See  the 
authorities  already  referred  to. 

This  view,  as  it  seems  to  me,  woi\ld  dispose  of  the  case ;  but  there  is 
another  which  leads  to  the  same  result,  for  the  barley  was  in  fact  actu- 
ally delivered  to  and  received  by  the  defendant. 

When  the  written  contract  of  sale  was  made,  which  was  on  the  15th 
of  December,  the  barley  was  in  the  plaintiff's  warehouse.  The  defend- 
ant was  then  informed  by  the  plaintiff  that  he  had  rented  the  ware- 
house to  one  Camp,  from  the  first  day  of  January  then  next,  and  that 
the  defendant  must  make  an  arrangement  for  the  storage  of  the  barley 
from  that  time  with  Camp.  The  evidence  shows  that  on  the  day  of 
making  the  contract  of  purchase,  or  within  a  day  or  two  thereafter, 
the  defendants  agreed  with  Camp  that  the  barley  should  remain  in 
store  with  him  until  the  next  spring,  for  which  the  defendant  was  to 
pay  a  pi-ice  then  specified  and  assented  to  by  both  parties.  On  the 
first  of  January,  Camp  went  into  possession  of  the  warehouse  under 
his  lease  from  the  plaintiff,  and  at  the  same  time  took  charge  of  the 
barley  for  the  defendant,  as  had  been  agreed  between  them.  This  gave 
to  the  defendant  as  full  possession  of  the  barley  as  he  would  have  ac- 
quired by  removing  it  to  his  own  store-house,  and  his  right  of  property 


SECT,  ir.]  HANSON   V.    MEYER.  639 

was  previously  complete  by  tlie  purchase.  Property,  the  right  of  pos- 
session and  the  actual  possession,  were  here  united,  and  the  plaintiff 
had  no  longer  any  right  whatever  to  the  barley.  His  lien  for  the  pur- 
chase-money was  gone,  as  he  had  voluntarily  transferred  the  possession 
of  the  barley  to  the  defendant.  The  defendant's  arrangement  with 
Camp  for  the  storage  of  the  barley  was  made  at  the  request  of  the 
plaintiff,  and  the  transfer  of  the  possession  was  with  his  full  assent. 
It  amounted  to  an  unqualified  relinquishment  of  all  right  on  the  part 
of  the  plaintiff,  and  a  complete  acquisition  of  both  possession  and 
propei-ty  by  the  defendant.  2  Kent,  500,  502  ;  Ross,  65-6,  72-3 ; 
Chaplin  v.  Rogers,  1  East,  192  ;  Ilarman  y,  Anderson,  2  Camp.  243  ; 
Hurry  v.  Mangles,  1  id.  452 ;  Hollingsworth  v.  Napier,  3  Caines,  182, 
2d  ed.  and  note  at  ]).  184  ;  Bentall  v.  Burn,  3  B.  &  C.  423  ;  Carter  v. 
Williams,  19  Pick.  1.  The  sale  being  completely  executed,  the  pur- 
chaser and  owner,  not  the  seller,  should  stand  the  loss.  I  think  the 
report  of  the  referee  should  be  set  aside. 

McKissocK,  J.,  concurred.  He-port  set  aside.  \ , 

Sales  of  Specific    Goods  to  lohich  something  remains  to  be  done. 


HANSON    AND   Another,   Assignees    of   Wallace    and    Hawes,        '^^  j 

Bankrupts,  v.  MEYER. 

In    the    King's    Bench,   Jult   2,    1805. 

[  Reported  in  6  East,  614.] 

This  was  an  action  of  trover  brought  to  recover  the  value  of  33 
cwt.  1  qr,  21  lbs.  of  starch,  which  was  tried  before  Lord  Ellenborough, 
C.  J.,  at  the  sittings  at  Guildhall  after  Trinity  term,  1803,  when  there 
was  a  verdict  for  the  defendant ;  and  a  motion  being  made  for  a  new 
trial,  which  was  argued  in  last  Michaelmas  term,  the  court  by  consent 
in  Hilary  term  last  ordered  a  case  to  be  made  of  the  facts  that  were 
proved  at  the  trial,  which  are  as  follows :  — 

The  plaintiffs  are  assignees  of  J.  Wallace  and  W.  Ilawes  under  a 
commission  of  bankrupt  issued  against  them.     The  defendant  is  a  mer- 
chant in  London.      In  Januai-y,  1801,  the  bankrupts  employed  Wright,  >\i 
their  broker,  to  purchase  of  the  defendant  a  quantity  of  starch,  about 
four  tons,  belonging  to  the  defendant,  and  which  was  then  lying  in  the 


640  HANSON   V.    MEYER.  [CHAP.  II. 

Bull  Porters'  warehouse  in  Seething  Lane ;  and  Wright  accordingly 
purchased  the  starch  of  the  defendant  at  £6  per  cwt,  and  sent  to  the 
bankrujDts,  his  princiiDals,  the  following  note :  — 

Dear  Sirs,  — I  have  bought  that  small  parcel  of  starch  which  you  saw  of  Mr. 
James  Meyer  for  your  account,  61.  per  cwt.  by  bill  at  2  months  ;  14  days  for 
delivery  from  the  14th  instant. 

Yours,  &c.  T.  Wright. 

Januaky  15th,  1801. 

The  starch  lay  at  the  Bull  Poi-ters'.  The  broker  purchased  for  the 
bankrupts  all  Meyer's  starch  that  lay  there,  more  or  less,  whatever  it 
was,  at  6^.  per  hundred-weight ;  it  was  in  papers ;  the  weight  was  to  be 
afterwards  ascertained  at  the  price  aforesaid.  The  mode  of  delivery 
is  as  follows :  the  seller  gives  the  buyer  a  note  addressed  to  the  ware- 
house-keeper, to  weigh  and  deliver  the  goods  to  the  buyer.  This  note 
is  taken  to  the  warehouse-keeper,  and  is  his  authority  to  weigh  and 
deliver  the  goods  to  the  vendee.  The  following  note  was  given  by  the 
defendant :  — 

To  THE  Bull  Porters,  Seething  Lane.  —  Please  to  weigh  and  deliver  to 

Messrs.  Wallace  and  Hawes  all  my  starch. 

Per  Jajies  Meyer,  William  Elliott. 

January  17,  1801. 

This  order  was  lodged  by  the  bankrupts  at  the  Bull  Porters'  ware- 
house on  the  21st  of  January,  1801,  on  which  day  the  bankrupts 
required  the  Bull  Porters  to  weigh  and  deliver  to  them  540  papers  of 
the  starch,  which  weighed  — 

cwt.  qr.  lb. 
21   1     6 

And  on  the  31st  Jan.      250 9  1  20 

And  on  the  2d  Feb.    .400 15  1     4 


r 


1190  46  0  ]2 

At  which  respective  times  the  Bull  Porters,  in  consequence  of  their 
order,  weighed  and  delivered  the  same  to  the  bankrupts,  who  immedi- 
ately removed  the  same ;  the  residue  thereof,  being  33  cwt.  1  qr.  21  lb. 
remained  at  the  Bull  Porters'  warehouse  till  the  failure  of  Wallace  and 
Hawes.  The  above  quantities  of  starch  continued  at  the  Bull  Porters' 
warehouse  in  the  name  and  at  the  expense  of  the  defendant  till  they 
were  weighed  and  delivered;  and  the  residue  also  afterwards  continued 
there  in  like  manner  unweighed,  in  his  name,  and  charged  to  his  ex- 
pense. On  the  8th  of  February,  1801,  Wallace  and  Hawes  became 
bankrupts.  It  was  admitted  that  the  defendant,  after  the  bankruptcy, 
took  away  the  remainder  of  the  starch  that  had  not  been  so  weighed. 
The  question  for  the  opinion  of  the  court  was,  whether  the  defendant 
was  entitled  to  the  above  verdict.    If  the  court  should  be  of  opinion 


SECT.  II.]  HANSON    V.    MEYER.  641 

that  he  was,  then  the  verdict  was  to  stand  ;  if  not,  then  a  new  trial  was 
to  be  granted  upon  such  terms  as  tlie  court  should  direct. 

Hwnxjhreys^  for  the  plaintiffs.  This  was  an  entire  contract  which 
could  not  be  severed  or  apportioned,  and  therefore  upon  the  delivery  of 
any  part  of  the  starch  to  the  bankrupts,  the  property  of  the  whole 
became  vested  in  them.  It  was  not  a  contract  for  so  many  hundred- 
weight of  starch,  but  for  all  the  defendant's  starch  which  lay  at  the 
Bull  Porters'  warehouse ;  the  xoeight  only  of  which  was  to  be  after- 
wards ascertained ;  but  the  whole  was  to  be  paid  for  by  one  bill.  And 
there  is  the  more  reason  for  holding  such  a  contract  to  be  entire, 
because  the  price  of  the  whole  may  be  governed  by  the  average 
quality,  and  the  part  received  may  be  the  worst :  or  at  any  rate  it 
may  be  an  inducement  to  a  purchaser  to  give  more  for  the  whole  tlian 
he  would  for  a  part,  in  order  to  withdraw  so  much  competition  out  of 
the  market.  After  the  order  for  delivery  the  bankrupts  might  have 
taken  the  whole  as  well  as  a  part.  In  Bro.  Abr.  Api)ortionment,  pi.  7, 
it  is  said,  that  "a  contract  cannot  be  severed  or  apportioned,  &c., 
because  it  is  entire ;  and  if  it  be  destroyed  in  i)art,  it  is  destroyed  in 
the  whole."  Again,  Bro.  Abr.,  Contract,  pi.  35  :  "  If  a  man  sell  a  lease 
of  land  and  certain  cloths  for  £10  the  contract  is  entire  and  cannot  be 
severed ;  though  one  of  the  things  were  by  a  defeasible  title,"  «fcc.  So 
in  Hawkins  v.  Cardy  ^  it  was  ruled  that  a  bill  of  exchange,  being  on'e 
entire  contract,  could  not  be  apportioned  by  indorsement,  so  as  to  make 
the  drawer  liable  in  part  to  different  holders.  If  the  vendees  had  con- 
tinned  solvent,  and  after  taking  part  of  the  starch  a  fire  had  consumed 
the  remainder  in  the  warehouse,  they  would  still  have  been  liable ;  for 
after  the  sale,  the  commodity  is  at  the  lisk  of  the  vendee.  Bro.  Abr., 
Contract,  pi.  26.  Up.on  the  same  principle,  if  goods  purchased  are  to  be 
paid  for  before  they  are  taken  away,  and  afterwards  the  vendor  gives  the 
vendee  liberty  to  take  away  a  part  without  payment,  that  would  dis- 
pense with  the  condition  as  to  the  remainder,  according  to  the  doctrine 
in  Dmnpor's  case ;  ^  and  the  only  remedy  of  the  vendor  would  be  upon 
the  contract  for  the  value  of  the  goods  sold.  It  is  clear  from  the  cases 
of  Slubey  v.  Heyward  ^  and  Hammond  v.  Anderson,*  that  after  a  part- 
delivery  there  can  be  no  stopi)ing  in  transitu,  which  is  decisive  as  to 
the  property  of  the  whole  being  absolutely  vested  in  the  vendee.  And 
yet  in  the  latter  case  the  vendor  put  in  his  claim  before  the  expiration 
of  fourteen  days,  during  which  time  the  goods  were  to  remain  at  his 
charge  in  the  wharfinger's  Avarehouse.  The  only  distinction  between 
the  two  cases  is,  that  here  the  starch  was  to  remain  in  the  warehouse 
at  the  expense  of  the  vendor  till  it  was  weighed ;  but  that  was  merely 
to  ascertain  the  price,  and  would  not  alter  the  legal  property.     It  was 

1  1  Ld.  Ray.  360.  2  4  Rep.  119  b. 

8  2  H.  Blac.  604.  *  1  New  Rep.  69. 


642  HANSON   V.    MEYER.  [CHAP  II. 

also  observed,  that  no  cases  in  equity  had  occurred  which  applied 
pointedly  to  the  present.  Fawell  v.  Heelis  ^  was  mentioned  as  coming 
nearest,  where  it  was  holden  that  a  vendor  of  an  estate,  who  had  taken 
a  bond  for  the  consideration-money,  had  no  lien  on  the  estate  against 
the  creditors  of  the  vendee,  for  whose  benefit  the  estate  was  assigned ; 
and  here  the  vendor  had  relied  on  the  security  of  a  bill  which  was  to 
be  given  payable  at  a  future  day. 

Ilolroyd,  contra,  after  observing  that  it  was  just  and  reasonable, 
that  upon  every  sale  of  goods,  the  vendor  should  either  receive  the 
stipulated  price,  or  should  have  power  to  retain  the  goods,  or  so  much 
of  them  as  were  not  absolutely  delivered  over  to  the  vendee  upon  credit, 
contended,  1st,  that  the  legal  property  of  so  much  of  the  starch  as 
remained  unweighed  in  the  warehouse  did  not  pass  to  the  vendees ;  or, 
2dly,  if  it  did,  yet  the  vendor  retained  a  lien  upon  it  for  the  stipulated 
price  of  the  whole.  1st,  on  a  sale  of  specific  goods  (and  these  may  be 
taken  to  be  so,  being  a  specific  quantity  of  starch,  though  the  amount 
was  not  ascertained  at  the  time  of  the  contract),  the  property  does  not 
pass  except  upon  payment  or  tender  of  payment  by  the  buyer,  or 
where  the  time  of  i^ayment  is  by  consent  jiostponed.^  Now,  here,  by 
the  terms  of  the  contract,  fourteen  days  were  to  be  allowed  for  the 
delivery  on  the  one  hand,  and  on  the  other  the  payment  was  to  be  by 
a  bill  at  two  months ;  the  vendees,  therefore,  were  not  bound  to  pay  for 
the  starch  till  it  was  delivered,  nor  was  the  vendor  bound  to  part  with 
it  till  he  received  the  bill.  In  Knight  v.  Hopper,^  where  the  note  of 
the  contract  of  sale  was  to  this  purj^ose  :  "  Bought  by  Knight,  of  Hop- 
per, 100  pieces  of  muslin  at  40s.  per  piece,  to  be  fetched  away  by  ten 
pieces  at  a  time,  and  paid  for  as  taken  away,"  what  was  relied  upon  by 
Holt,  C.  J.,  as  altering  the  property  immediately  .was,  that  the  pieces 
were  marked  and  sealed  by  the  vendee ;  and  there  too  the  price  was 
fixed ;  but  here  there  was  no  act  done  by  the  vendees  to  mark  the 
goods  as  their  own.  It  was  not  an  order  simply  to  deliver,  but  to 
"  weigh  and  deliver ; "  the  weighing  was  to  precede  the  delivery :  and 
even  the  price  could  not  be  ascertained  till  they  were  weighed ;  so  that 
till  then  it  could  not  be  known  whether  the  vendees  would  pay  the 
price  or  not ;  but  certainly  the  vendor  was  not  bound  to  j^art  with  the 
goods  till  he  had  a  bill  at  two  months  for  the  ascertained  value.  In  a 
case  *  where  a  son  employed  his  fiither  to  buy  a  frame  for  him,  and  the 
father  purchased  it  in  his  own  name,  and  paid  part  of  the  money,  and 
gave  a  note  for  the  rest ;  Holt,  C.  J.,  held,  that  by  the  payment  of  the 
money  and  giving  the  note,  the  property  of  the  frame  was  immediately 
vested  in  the  father ;  and  that  the  bill  of  sale  which  was  made  a  month 
afterwards  to  the  son  did  not  devest  the  property  out  of  the  father  and 

1  Arabl.  724.  2  2  Blac.  Com.  446,  447. 

3  Skin.  647.  *  Anon.  12  Mod.  S44. 


SECT.  11.]  HANSON    V.    MEYER.  643 

vest  it  in  the  son  ;  tliougli  it  would  have  vested  it  in  the  son  if  it  had 
been  made  at  the  time  of  the  sale.  And  he  added,  that  earnest  does 
not  alter  the  property,  it  only  hinds  the  bargain;  and  the  property 
remains  in  the  vendor  till  payment,  or  delivery  of  the  goods.  In 
2  Black.  Com.  443,  it  is  said  that  a  contract  executory,  as  if  two 
agree  to  change  horses  next  week,  vests  only  a  right,  and  their  recip- 
rocal property  in  each  other's  horse  is  not  in  possession,  but  in  action, 
&c.,  for  a  contract  executory  conveys  only  a  chose  in  action.  Here 
then  till  the  goods  were  weighed  and  the  price  ascertained,  and  the 
bill  given  or  at  least  tendered,  the  contract  remained  executory,  and 
no  property  passed ;  but  each  only  had  his  remedy  upon  the  contract 
on  failure  of  performance  by  the  other.  2d.  At  any  rate,  however,  if 
the  property  did  pass  to  the  vendees,  the  vendor  had  a  lien  on  the 
goods  for  the  price,  or  the  bill,  provided  the  vendees  had  remained 
solvent  and  capable  of  giving  such  a  security.  If  the  rest  of  the  goods 
had  remained  in  the  vendor's  own  possession,  there  could  have  been  no 
doubt  that  he  might  have  retained  any  part  for  the  price  at  least  of 
that  part.  If  one  ordered  an  hundred  pair  of  shoes  of  a  shoemaker 
at  so  much  a  pair  to  be  paid  for  by  a  bill ;  though  the  shoemaker  had 
delivered  half,  yet  if  the  vendee  became  insolvent  the  ti-adesman 
would  not  be  bound  to  deliver  the  remainder  without  payment.  And 
yet  the  insolvency  does  not  rescind  the  contract;  but  the  vendor  has 
an  equitable  lien  for  the  price,  and  this  lien  continues  notwithstanding 
even  a  part  payment ;  as  in  Hodgson  v.  Loy  ^  and  Feise  v.  Wray,^ 
where  part  payment  of  the  goods  was  holden  not  to  devest  the  ven- 
dor's right  to  stop  in  transitu ;  and  a  fortiori  it  cannot  devest  his  lien 
upon  the  goods  while  they  still  continue  in  his  possession  ;  for  Lord 
Kenyon  himself  put  it  upon  that  ground,  saying,  "  that  the  right  of  the 
vendor  to  stop  goods  in  transitu  in  case  of  the  insolvency  of  the  ven- 
dee was  a  kind  of  equitable  lien  adopted  by  the  law  for  the  purposes 
of  substantial  justice,  and  that  it  did  not  proceed  on  the  ground  of 
rescinding  the  contract."  Then  it  cannot  vary  the  case  that  the  goods 
here  were  in  the  hands  of  a  middleman ;  for  they  remained  all  the 
time  in  the  Bull  Porters'  warehouse,  in  the  vendor's  name  and  at  his 
expense.  In  the  cases  in  the  Common  Pleas  there  was  a  severance 
by  the  vendees  themselves  of  part  of  the  goods  from  the  rest,  which 
could  not  have  been  done  without  a  possession  of  the  whole  by  them, 
so  as  to  bar  the  vendor's  right  of  stopping  any  part  as  in  transitu' 
And  in  Hammond  v.  Anderson,^  there  was  this  further  material  cir- 
cumstance, that  all  the  goods  had  been  weighed  out  to  the  vendee. 
But  cases  of  tra?isitus  do  not  atfect  the  question  of  lieu,  which  can 
only  arise  while  the  goods  are  in  the  actual  or  constructive  possession 
of  the  vendor.     Liens  are  mutual ;  and  a  sale  is  only  an  exchange  of 

1  7  Term  Rep.  440,  445.  2  3  East,  93.  3  1  New  Rep.  69. 


644  HANSON   V.    MEYER.  [CHAP.  II. 

goods  for  money ;  but  if  a  delivery  of  part  of  the  goods  contracted  for 
without  payment,  be  a  waiver  of  the  vendor's  lien  for  the  price,  then 
by  payment  of  part  of  the  money  by  the  purchaser  he  would  waive 
his  lien  on  the  remainder,  which  might  be  recovered  from  him  by 
action  without  a  delivery  of  the  goods.  Suppose  an  exchange  of  two 
horses  for  one,  would  a  delivery  of  one  of  the  two  preclude  the  owner's 
lien  on  the  other  till  the  delivery  of  the  one  horse  for  which  the  two 
were  to  be  exchanged  ?  There  is  no  distinction  in  reason  between  an 
exchange  of  goods  for  goods,  and  of  goods  for  money.  If  an  action 
be  brought  by  a  vendee,  after  part  of  the  price  of  goods  paid,  he  must 
allege  that  he  paid  or  offered  to  pay  the  remainder.  The  principle  is 
general,  that  he  who  sues  another  for  a  breach  of  contract  must  aver 
performance,  or  what  is  equivalent  to  performance  on  his  part ;  as  in 
Morton  v.  Lamb  ^  and  Callonel  v.  Briggs  ;  ^  and  therefore  the  vendor 
of  goods  has  a  lien  on  any  part  of  them  for  the  price  of  the  whole ; 
he  only  lessens  his  security  by  delivering  up  any  part  before  payment.^ 
.  .  .  In  Langfort  v.  Administratrix  of  Tiler,^  the  defendant  in  the 
lifetime  of  the  intestate,  lier  husband,  having  bought  of  the  plaintiff 
four  tubs  of  tea,  one  of  which  she  paid  for  and  took  away,  leaving  50/. 
earnest  for  the  other  three  ;  Holt,  C.  J.,  held,  that  notwithstanding  the 
earnest  (which  only  bound  the  bargain,  and  gave  a  right  to  demand 
the  rest  on  payment  of  the  money),  the  money  must  be  paid  upon 
fetching  away  the  goods,  because  no  other  time  for  payment  was 
appointed ;  and  that  if  the  vendee  did  not  come  and  pay  for  the  goods 
in  a  reasonable  time,  after  request,  the  agreement  was  dissolved,  and 
the  vendor  was  at  liberty  to  sell  them  to  any  other  person.  In  detinue,^ 
where  there  had  been  a  part  delivery  of  a  certain  quantity  of  corn 
contracted  for,  and  payment  for  what  was  so  delivered,  the  Court  con- 
sidered that  the  vendor  had  a  lien  upon  the  remainder  for  the  residue 
of  the  money,  and  was  not  bound  to  deliver  it  till  payment,  and  might 
plead  non  detinet.  And  the  distinction  was  taken,  that  if  goods  be 
bought  outright,  the  bargain  is  void  if  the  vendee  do  not  pay  the  price 
agreed  upon  immediately ;  but  if  a  day  of  payment  be  appointed,  the 
vendor  shall  have  his  action  of  debt,  the  vendee  an  action  of  detinue. 
As  to  the  position  in  Dumpor's  case,^  that  a  condition  waived  in  part  is 
waived  in  toto^  it  cannot  apply  to  liens  which  at  most  are  only  condi- 
tions in  law  founded  on  principles  of  equity,  and  not  like  conditions 

1  7  Term  Rep.  125.  '^  Salk.  112. 

3  The  part  omitted  is  not  material  to  the  subject  of  this  chapter.  —  Ed. 

4  Salk.  113.  The  same  case  is  reported  in  6  Mod.  162,  where  the  case  is  stated  to 
be,  that  the  goods  were  contracted  to  be  sold  by  the  defendant  to  the  plaintiff,  who 
paid  for  one  of  the  tubs,  and  gave  50s.  earnest  for  the  remainder ;  and  the  declara- 
tion contained  two  counts,  one  on  the  agreement  as  it  appears  for  the  non-delivery 
of  the  other  tubs ;  the  other,  to  recover  back  the  50s.  as  so  much  received  to  the 
plaintifl^'s  use.     The  result  of  the  doctrine  is  the  same  in  both  books. 

6  Anonym.,  Dy.  29  6.  "4  Rep.  119  b. 


SECT.  II.]  HANSON   V.    MEYER.  645 

stipulated  for  by  the  parties  themselves,  which  are  always  construed 
strictly,  being  in  general  to  defeat  an  estate  or  create  a  ioHciture. 

Iluni'phreys  in  reply  said,  that  the  property  was  altered  by  a  sale  as 
well  where  a  future  day  of  payment  was  given  as  where  the  goods 
were  paid  for  at  the  time.  1  Com.  Dig.  313,  Agreement,  B  3,  cites  10 
H.  7,  8  a;  14  H.  8,  20  a;  Dy.  30  a.  It  is  true  the  vendor  might 
have  withheld  the  order  for  delivery  till  he  received  the  Ijill  which  was 
agreed  to  be  taken  for  payment ;  but  he  waived  that  benefit,  and  gave 
an  order  for  the  delivery  of  the  whole.  Then  the  severance  of  a  part 
was  as  much  evidence  of  a  possession  of  the  whole  by  the  vendee  in 
this  case  as  in  the  late  cases  in  the  Common  Pleas.  Those  cases  went 
on  the  ground  that  the  sale  of  the  goods  being  by  one  entire  contract, 
possession  of  part  was  possession  of  the  whole  out  of  which  such  part 
was  taken.  And  if  the  property  passed  by  the  contract,  the  payment 
of  the  warehouse  rent  afterwards  by  the  vendor  cannot  alter  it. 

Cur.  adv.  vult. 

Lord  Ellexborough,  C.  J.,  now  delivered  judgment. 

By  the  terms  of  the  bargain  formed  by  the  broker  of  the  bankrupts 
on  their  behalf,  two  things,  in  the  nature  of  conditions  or  preliminary 
acts  on  their  part,  necessarily  preceded  the  absolute  vesting  in  them 
of  the  property  contracted  for ;  the  first  of  them  is  one  which  does  so 
according  to  the  generally  received  rule  of  law  in  contracts  of  sale, 
viz.,  the  payment  of  the  agreed  price  or  consideration  for  the  sale. 
The  second,  which  is  the  act  of  weighing,  does  so  in  consequence  of 
the  particular  terms  of  this  contract,  by  which  the  price  is  made  to 
depend  upon  the  weight.  The  weight,  therefore,  must  be  ascertained 
in  order  that  the  price  may  be  known  and  paid  ;  and  unless  the  weigh- 
ing precede  the  delivery  it  can  never,  for  these  puq>oses,  efl^ectually 
take  place  at  all.  In  this  case  a  partial  weighing  and  delivery  of  sev- 
eral quantities  of  the  starch  contracted  for  had  taken  place ;  the  re- 
mainder of  it  was  unweighed  and  undelivered  ;  and  of  course  no  such 
bill  of  two  months  for  the  price  so  depending  on  the  weight  could  yet 
be  given.  The  question  is.  What  is  the  legal  effect  of  such  part  deliv- 
ery of  the  starch  on  the  right  of  property  in  the  undelivered  residue 
thereof?  On  the  part  of  the  plaintiffs  it  is  contended  that  a  delivery 
of  part  of  an  entire  quantity  of  goods  contracted  for  is  a  virtual  deliv- 
ery of  the  Avhole,  so  as  to  vest  in  the  vendee  the  entire  property  iu  the 
whole ;  although  the  price  for  the  same  should  not  have  been  paid. 
This  proposition  was  denied  on  the  part  of  the  defendant;  and  many 
authorities  have  been  cited  on  both  sides.  But,  without  decidius:  at 
present  what  might  be  the  legal  effect  of  such  part  delivery  in  a  case 
where  the  payment  of  price  Avas  the  only  act  necessary  to  be  per- 
formed in  order  to  vest  the  property,  in  this  case  another  act,  it  will 
be  remembered,  was  necessary  to  precede  both  payment  of  price  and 
VOL.  I.  42 


646  HANSON   V.    MEYER.  [CHAP.  II. 

delivery  of  the  goods  bargained  for,  viz.,  weighing.  This  preliminary- 
act  of  weighing  it  certainly  never  was  in  the  contemplation  of  the 
sellers  to  waive  in  respect  of  any  part  of  the  commodity  contracted  for. 
The. order  stated  in  the  case  from  the  defendant  to  the  Bull  Porters, 
his  agents,  is  to  weigh  and  deliver  all  his  starch.  Till  it  was  weighed, 
they  as  his  agents  were  not  authorized  to  deliver  it :  still  less  were  the 
buyers  themselves,  or  the  present  plaintiffs,  their  assignees,  authorized 
to  take  it  by  their  own  act  from  the  Bull  Porters'  warehouse :  and  if 
they  could  not  so  take  it,  neither  can  they  maintain  this  action  of 
trover  founded  on  such  a  supposed  right  to  take,  or,  in  other  words, 
founded  on  such  a  supposed  right  of  property  in  the  subject-matter  of 
this  action.  If  any  thmg  remain  to  be  done  on  the  part  of  the  seller, 
as  between  him  and  the  buyer,  before  the  commodity  purchased  is  to 
be  delivered,  a  complete  present  right  of  property  has  not  attached  in 
the  buyer ;  and  of  course  this  action,  which  is  accommodated  to  and 
depends  upon  such  supposed  perfect  right  of  property,  is  not  maintain- 
able. The  action  failing,  therefore,  on  this  ground,  it  is  unnecessary  to 
consider  what  would  have  been  the  effect  of  non-payment  of  price  on 
the  right  to  the  undelivered  residue  of  the  starch,  if  the  case  had  stood 
merely  on  that  ground,  as  it  did  in  the  case  of  Hammond  and  others 
against  Anderson,  1  New  Rep.  69  ;  where  the  bacon  sold  in  that  case 
was  sold  for  a  certain  fixed  price,  and  where  the  weighing,  mentioned 
in  that  case,  was  merely  for  the  buyer's  own  satisfaction,  and  formed 
no  ingredient  in  the  contract  between  him  and  the  seller ;  though  it 
formed  a  very  important  circumstance  in  the  case,  being  an  unequivo- 
cal act  of  possession  and  ownership  as  to  the  whole  quantity  sold  on 
the  part  of  the  buyer ;  in  like  manner  as  the  taking  800  bushels 
of  wheat  out  of  the  whole  quantity  sold,  and  then  on  board  the  ship, 
was  holden  to  be  in  the  case  of  Slubey  v.  Heyward,  2  H.  Bl.  504. 
Without,  therefore,  touching  the  question  which  has  been  the  main 
subject  of  argument  in  this  case,  and  upon  which  my  opinion  at  tiisi 
prius  principally  turned,  and  without  in  any  degree  questioning  the 
authority  of  the  above-mentioned  two  cases  from  the  Common  Pleas, 
this  verdict  may  be  sustained,  on  the  ground  that  the  weighing  which 
was  indispensably  necessary  to  precede  the  delivery  of  the  goods,  inas- 
much as  it  was  necessary  to  ascertain  the  price  to  be  paid  for  them, 
had  not  been  performed  at  the  time  when  the  action  was  brought. 
The  verdict  therefore  must  stand,  and  judgment  be  entered  for  the 
defendant. 


^fy^^^^-  TTuTTTT^  y^ /^ 7^~^i^^^^L^ 


SECT.  II.]         ^  RUGG    V.    MINETT.  647 


RUGG  AND  Others  v.  MIXETT  and  Othees. 
In  the  King's  Bench,  May  9,  1809. 

[jReportec?  in  11  East,  210.] 

In  an  action  for  money  had  and  received  by  the  defendants  to  the 
use  of  the  plaintiifs,  a  verdict  was  found  for  the  plaintiffs  for  £14:15, 
subject  to  the  opinion  of  the  court  upon  the  following  case :  — 

On  the  28th  of  April,  1808,  the  defendants,  as  prize  agents  to  the 
commissioners  for  the  care  and  disposal  of  Danish  property,  put  up  to 
public  sale  by  auction,  at  Dover,  the  cargo  of  a  Danish  ship  in  lots,  and 
the  lots  No.  28  to  54  inclusive  consisted  of  turj^entine  in  casks.  The 
quantity  contained  in  each  lot  being  marked  on  the  catalogue  thus : 
10  cwt.  3  qrs.  26  lbs. ;  the  mode  of  bidding  was  this,  each  lot  (except 
the  two  last,  which  were  sold  at  uncertain  quantities)  was  to  be  taken 
at  the  weight  at  which  it  was  marked,  and  the  bidding  was  to  be  at  so 
much  per  hundred-weight  on  that  quantity.  The  plaintiffs  employed 
one  Acres,  the  warehouseman  of  the  defendants,  to  bid  for  them,  and 
all  the  lots  of  turpentine  (with  the  exception  of  three  lots,  which  were 
sold  to  other  bidders)  Avere  knocked  dowm  to  Acres  so  actintr  for  the 
plaintiffs.  No  conditions  of  sale  were  distributed  prior  to  the  sale ; 
but  the  auctioneer,  before  the  bidding  commenced,  read  aloud  the  fol- 
lo'SA'ing  conditions :  1st.  The  highest  bidder  to  be  the  buyer;  but  if  any 
dispute  should  arise,  the  lot  to  be  put  up  again.  2d.  £25  per  cent  is  to 
be  paid  to  the  auctioneer  as  a  deposit  immediately  after  the  sale,  and 
the  remainder  in  thirty  days.  The  remainder  of  the  purchase-money 
is  to  be  paid  on  the  goods  being  delivered.  Should  the  goods  remain 
after  the  limited  time,  the  warehouse  rent  from  that  time  to  be  paid,  at 
the  rate  of  2s.  per  ton  per  month,  by  the  purchaser.  3d.  The  goods  to 
be  taken  at  the  net  weight  printed  in  the  catalogue.  4th.  The  goods 
to  be  taken  aAvay  in  twelve  months,  or  resold  to  pay  the  warehouse 
rent.  Upon  failure  of  complying  with  these  conditions,  the  deposit- 
money  is  to  be  forfeited,  and  the  commissioners  to  be  at  liberty  to  resell 
any  lots  belonging  to  defaulters,  by  whom  all  charges  attending  the 
same  shall  be  made  good.  Is.  j^er  lot  under  £10 ;  Is.  Of?,  from  £10  to 
£25  ;  and  2s.  above  £25 ;  lot-money  to  be  paid  by  the  buyer  to  the  auc- 
tioneer. Tare  allowed  for  turpentine  Is.  hd.  Upon  the  turi)entine 
being  put  up  to  sale,  the  auctioneer,  by  the  direction  of  one  of  the  de-  '  ' 
fendants  present,  announced  to  the  bidders  that  the  casks  of  turpentine 
wei'e  to  be  filled  up  before  they  were  delivered  to  the  purchasers,  and 
that  in  order  to  effect  this,  the  two  last  lots  Avould  be  sold  at  uncertain 


648  RUGG   V.    MINETT.  [CHAP.  II. 

quantities,  and  the  preceding  lots  would  be  filled  fi-om  them.  The 
whole  of  the  turpentine,  with  the  exception  of  the  three  lots  before 
mentioned,  were  sold  to  the  plaintifis ;  and  they  also  were  the  pur- 
chasers of  the  two  last  lots,  from  which  all  the  lots  without  exception 
were  to  be  filled  up ;  and  those  two  last  lots  were  accordingly  marked 
by  the  auctioneer  in  his  catalogue,  with  the  words  "  more  or  less."  Im- 
mediately after  the  sale  £200  was  paid  by  the  plaintiffs  to  the  auctioneer, 
as  their  deposit ;  and  on  the  9th  of  May,  1808,  the  plaintifis  paid  to  the 
defendants  £1715  upon  account  of  the  turpentine,  and  the  duties  paya!- 
ble  thereon.  The  turpentine  remained  in  the  warehouses  of  the  defend- 
ants as  before  the  sale,  but  was  entered  at  the  custom-house  at  Dover, 
in  the  name  of  the  plaintifis,  on  the  morning  of  the  10th  of  May,  1808, 
before  the  fire,  by  Acres,  who  paid  on  behalf  of  the  plaintifis  £450  as  a 
deposit  for  the  duties.  On  the  same  morning  the  cooper,  who  had  been 
employed  by  the  defendants  to  make  up  all  the  casks  previous  to  the 
sale  of  the  28th  of  April,  was  sent  for  by  Acres,  who  was  warehouse- 
man to  the  defendants,  and  who  acted  as  agent  for  the  plaintifis,  to  fill 
up  the  casks  of  turpentine,  and  he  had  filled  all  of  them  except  eight  or 
ten ;  leaving  them  with  the  bungs  out  to  enable  the  custom-house  officer, 
who  was  expected  every  minute  to  take  his  gauge  in  order  to  ascertain 
the  duties.  The  two  last  lots,  which  were  sold  at  uncertain  quantities, 
and  marked  "more  or  less,"  contained  more  turpentine  than  was  sufii- 
cient  to  fill  up  all  those  bought  by  the  plaintifis ;  and  also  those  bought 
by  the  buyers  of  the  three  lots.  In  filling  the  casks  sold  to  the  plain- 
tifis one  of  the  two  last  lots  was  used,  and  instead  of  the  other  of  the 
two  last  lots,  a  preceding  cask  in  point  of  number,  which  had  been 
found  to  be  an  ullage  cask,  was  substituted  by  the  cooper,  and  from  one 
of  the  two  last  lots,  the  lots  sold  to  the  other  buyers  had  been  pre- 
viously filled  up.  All  the  lots  sold  to  the  other  buyers  had  been  taken 
away  before  the  cooper  came  on  the  10th ;  and  while  the  cooper  was 
employed  in  filling  up  the  plaintifis'  lots,  and  placing  them  ready  with 
the  bungs  of  the  casks  out  for  the  custom-house  ofiicer  to  gauge,  but 
before  he  had  filled  up  all  the  casks,  or  bunged  any  of  them,  a  fire  took 
place. in  the  defendants'  warehouse,  which  consumed  the  whole  of  the 
turpentine  knocked  down  to  the  plaintifis;  the  casks  not  having  been 
weighed  again  by  the  plaintiffs,  or  gauged  by  the  custom-house  ofl&cer. 
While  the  money  paid  by  the  plaintiffs  to  the  defendants  on  account  of 
the  turpentine  remained  in  their  hands,  they  received  notice  fi'om  the 
plaintiffs  not  to  pay  it  over ;  and  the  present  verdict  is  composed  of 
that  sum,  deducting  the  £450  paid  on  account  of  the  duty,  which  has 
been  restored  to  the  plaintiffs  by  the  commissioners  of  customs.  The 
question  for  the  opinion  of  the  court  was.  Whether  the  plaintifis  were 
entitled  to  recover  back  the  money  so  paid  to  the  defendants  ?  If  they 
were,  the  verdict  was  to  stand ;  if  not,  a  nonsuit  was  to  be  entered. 
Puller,  for  the  plaintiffs,  contended  that  the  contract  for  the  sale  was 


I 


SECT.  II.]  RUGG   V.   MINETT.  649 

still  executory  ^  at  the  time  of  the  loss  by  fire,  inasmuch  as  there  still 
remained  something  for  the  vendors  to  do ;  and  consequently  that  the 
loss  must  fall  upon  them,  and  not  upon  the  vendees.  By  the  conditions 
of  sale,  thirty  days  were  to  be  allowed  to  the  vendees  for  taking  the 
casks  from  the  warehouse  of  the  vendors;  and  before  they  were  removed 
the  vendors  were  out  of  the  two  last  casks  to  fill  up  all  the  rest,  so  as 
to  make  them  correspond  with  the  weights  at  which  they  were  marked  ; 
and  that  was  the  more  material,  because  until  it  was  done,  it  could  not 
be  ascertained  what  was  the  whole  price  to  be  paid,  as  those  two  casks 
were  to  be  paid  for  according  to  their  contents  after  the  rest  were  filled 
up ;  the  weighing  of  them  therefore  must  necessarily  precede  the  de- 
livery, and  the  remainder  of  the  whole  purchase-money  was  to  be  paid 
on  the  delivery  of  the  goods.  This  brings  the  case  within  the  decision 
of  Hanson  v.  Meyer,-  where  the  vendee  had  agreed  to  purchase  all  the 
starch  of  the  vendor  then  lying  in  the  Avarehouse  of  a  third  person  at 
so  much  per  cwt.  by  bill  at  two  months,  the  weight  of  which  starch 
was  afterwards  to  be  ascertained,  and  fourteen  days  were  to  be  allowed 
for  the  delivery ;  and  the  vendor  having  given  a  note  to  the  vendee, 
addressed  to  the  warehouseman,  directing  him  to  iceigh  and  deliver  to 
the  vendee  all  his  starch,  the  court  held  that  the  absolute  property  in 
the  goods  did  not  vest  in  the  vendee  before  the  weighing,  which  was  to 
precede  the  delivery  and  to  ascertain  the  price ;  and  that,  the  vendee 
having  become  bankrupt  before  the  whole  had  been  weighed  and  deliv- 
ered, the  vendor  miajht  retain  the  remainder.  It  is  true  that  in  that 
case  the  whole  was  to  be  weighed  before  deUvery ;  and  here  only  the 
two  last  casks ;  but  here  also  all  the  prior  casks  were  to  be  filled  up, 
which  was  not  done  at  the  time  of  the  loss ;  and  none  of  them  were  in 
a  condition  to  be  delivered,  as  the  bungs  were  left  out,  in  order  to  per- 
mit the  custom-house  officer  to  guage  the  casks,  without  which  they 
could  not  be  removed ;  and  it  was  part  of  the  business  of  the  vendors 
to  replace  the  bungs,  and  put  the  casks  in  a  proper  condition  to  be  de- 
livered. In  Hammond  v.  Anderson,^  all  the  bales  lying  at  a  wharf, 
which  had  been  sold  for  an  entire  sum,  had  been  taken  possession  of  by 
the  vendee  and  weighed,  and  i)art  had  been  removed  by  him  before  his 
bankruptcy ;  and  therefore  it  was  held  that  the  vendor  had  uo  right  to 
stop  what  remained  iu  the  hands  of  the  whai-finger.  In  Hinde  v.  White- 
house,*  though  the  sugars  were  in  the  king's  warehouses  under  the  locks 
of  the  king  and  the  owner,  from  whence  they  «ould  not  be  removed  till 
the  duties  were  paid,  Avhich  were  to  be  paid  by  the  sellers;  yet  they 
had  been  Aveighed,  and  the  duties  ascertained ;  and  one  of  the  condi- 
tions of  sale  at  the  auction  was,  that  the  sugars  were  to  be  taken  with 
all  defects  as  they  then  were,  at  the  king's  weights  and  tares,  with  the 

1  1  Com.  Dig.  541.  •^  6  East,  614. 

8  1  New  Rep.  69.  *  7  East,  558. 


650  RUGG   V.   MINETT.  [CHAP.  II, 

allowance  of  draft,  or  reweighecl  giving  up  the  draft,  and  to  be  at  the 
purchaser's  risk  from  the  time  of  the  sale ;  by  which  latter  was  evidently- 
meant  from  the  time  when  the  lot  was  knocked  down  to  the  highest 
bidder ;  and  besides,  the  acceptance  of  the  sample  by  the  purchaser,  as 
part  of  the  thing  purchased,  was  held  to  bind  the  sale.    If  a  horse  were 
sold,  and  agreed  to  be  delivered  by  the  vendor  after  he  was  shod,  and 
the  horse  died  before,  the  loss  would  fall  upon  the  vendor.     So  here, 
the  act  of  filling  up  the  casks  was  to  be  performed  by  the  vendors 
before  delivery ;  and  though  if  the  case  rested  upon  that  circumstance 
alone,  a  distinction  might  be  taken  as  to  those  casks  which  had  been 
filled  up,  yet  the  vendees  were  entitled  to  have  the  whole  rebunged 
before  delivery.    [Lokd  Ellenbokotjgh,  C.  J.,  observed,  that  the  ven- 
dees were  entitled  to  have  the  casks  filled  up  and  the  bungs  belonging 
to  them ;  but  that  the  vendors  had  no  concern  with  the  unbunging  or 
bunging  of  them,  the  former  of  which  was  done  on  account  of  the  cus- 
tom-house oflicer  intervening  to  do  his  duty  before  the  goods  were 
removed  by  the  vendees.     And  upon  inquiry  at  whose  instance  the 
gauging  was  to  be  performed,  it  was  admitted  that  the  vendees  could 
not  have  removed  the  goods  till  they  were  guaged  ;  and  therefore  the 
court  considered  that  it  was  their  duty  to  get  them  gauged.   The  court 
also  inquired  as  to  the  number  of  casks  which  had  been  filled  up  ;  and 
it  was  agreed  that  all  had  been  filled  up  except  ten,  on  which  they 
asked  the  defendant's  counsel  what  answer  he  had  to  give  to  those 

ten.] 

Carr,  for  the  defendants,  admitted  that  the  vendors  could  not  claim 
the  value  of  the  two  casks,  out  of  which  turpentine  had  been  taken  to 
fill  up  the  others,  because  the  quantities  they  contained  were  not  ascer- 
tained by  weighing  at  the  time  of  the  loss ;  but  with  respect  to  the  last 
ten  which  had  not  been  filled  up,  he  still  contended  that  the  property 
passed  by  the  sale ;  for  by  the  contract  the  mark  on  each  cask  was  con- 
clusive as  to  the  quantity,  and  the  price  being  also  ascertained,  every 
thing  material  to  the  perfection  of  a  contract  of  sale  was  complete ; 
and  at  any  rate  the  vendees  should  have  called  upon  the  vendors  to  fill 
up  the  remainder.     [Lord  Ellenborotjgh,  C.  J.    Still  the  fact  is,  that 
by  the  vendors  not  having  filled  up  the  last  ten  casks,  they  were  not  in 
a  deliverable  state  at  the  time  of  the  loss ;  and  it  was  certainly  a  mate- 
rial act  to  be  done,  to  make  up  the  quantity  marked.]    The  warehouse- 
man who  was  to  do  it  was  the  common  agent  of  both  ;  and  this  case  is 
so  far  distinguishable  from  that  of  Hanson  v.  Meyer,  that  there  the  ven- 
dee could  not  have  removed  the  goods  till  they  were  weighed ;  but 
here  the  quantity  and  price  being  ascertained,  the  vendees  might  have 
waived  calling  on  the  vendors  to  fill  up  the  casks,  and  might  have  taken 
them  away  when  they  pleased. 

Lord  Ellenborough,  C.  J.    The  court  have  already  intimated  their 
opinion  as  to  those  casks  in  the  first  lots  which  were  filled  up,  and  on 


SECT.  II.]  RUGG   V.    MINETT.  651 

which  nothing  remained  to  be  done  on  the  part  of  the  sellers,  but  only 
the  casks  were  left  to  remain  for  thirty  days  at  the  option  of  the  pur- 
chasers in  the  warehouse  at  the  charge  of  the  sellers ;  the  payment  of 
the  warehouse  rent,  however,  is  not  material  in  this  case ;  and  when 
the  casks  were  filled  up,  every  thing  was  done  which  remained  to  be  done 
by  the  sellers.  It  was  necessary,  however,  that  they  should  be  gauged 
before  they  were  removed,  and  the  bungs  were  left  out  for  the  i)urpose 
of  the  gauger's  doing  his  office,  which  it  was  the  buyer's  business  to 
have  performed ;  and  therefore,  according  to  the  case  of  Hanson  v. 
Meyer,  and  the  other  cases,  every  thing  having  been  done  by  the  sellers, 
which  lay  upon  them  to  perform,  in  order  to  put  the  goods  in  a  deliv- 
erable state  in  the  place  from  whence  they  were  to  be  taken  by  the 
buyers,  the  goods  remained  there  at  the  risk  of  the  latter.  But  with 
respect  to  the  other  ten  casks,  as  the  filling  them  up  according  to  the 
contract  remained  to  be  done  by  the  sellers,  the  property  did  not  pass 
to  the  buyers;  and  therefore  they  are  not  bound  to  pay  for  them. 

Le  Blaxc,  J.  The  case  is  to  l)e  considered  as  involving  so  mmiv  dis- 
tinct  contracts  as  there  were  distinct  lots  bought  l:>v  the  i)laintiti's.  The 
turpentine  was  purchased  at  so  much  per  cwt.,  and  it  was  to  be  taken 
according  to  the  weight  marked  on  each  lot ;  but  the  casks  were  to  be 
filled  up  by  the  sellers  out  of  turpentine  belonging  to  them,  in  order  to 
make  the  weights  agree  with  the  marks.  I  say  belonging  to  the  sellers, 
because  the  two  last  casks  were  only  sold  according  as  their  actual 
weights  should  turn  out  to  be,  after  filling  up  the  rest ;  and  if  more 
turpentine  had  been  wanted  than  those  casks  could  have  supplied  for 
filling  up  the  rest,  it  must  have  been  settled  which  of  the  respective 
purchasers  was  to  take  less  than  his  calculated  quantity.  Till  the  sev- 
eral casks  therefore  were  filled  up,  I  consider  the  property  as  remaining 
in  the  sellers.  But  a  certain  number  of  casks  were  filled  up,  and  with 
respect  to  them  nothing  furtlier  remained  to  be  done  by  the  sellers^. 
But  It  was  necessary  that  the  custom-house  officer  should  gauge  them 
before  they  could  be  removed.  Then  the  warehouseman  who  was  act- 
ing as  the  common  agent  of  the  buyers  and  sellers,  having  filled  up 
those  casks  on  the  part  of  the  sellers,  left  them  unbunged  for  the  pur- 
pose of  the  officer's  gauging  them  and  ascertaining  the  duties,  which 
was  an  act  to  be  done  on  the  part  of  the  buyers,  to  entitle  them  to 
remove  the  goods.  Then,  as  nothing  more  remained  to  be  done  by  the 
sellers  on  those  casks  which  were  filled  up,  they  were  from  that  time  at 
the  risk  of  the  buyers ;  but  those  wliich  were  not  tilled  up  continued 
at  the  risk  of  the  sellers. 

Bavley,  J.  In  many  cases  it  happens,  where  every  thing  has  been 
done  by  the  sellers  which  they  contracted  to  do,  that  the  property 
passes  to  the  buyers,  though  the  goods  may  still  continue  in  the  actual 
possession  of  the  sellers.  It  lies  upon  the  plaintiff  then  to  make  out, 
that  something  still  remained  to  be  done  to  the  goods  by  the  sellers  at 


652  ZAGDRY  V.    FURNELL.  [CHAP.  11. 

the  time  when  the  loss  happened.  But  with  respect  to  those  casks 
which  had  been  filled  up,  nothing  remained  to  be  done  but  the  gauging 
by  the  officer ;  and  as  that  was  to  be  procured  to  be  done  by  the  buyers, 
Acres,  who  left  out  the  bungs  for  the  j^urpose  of  enabling  the  officer  to 
gauge,  must  be  taken  to  have  acted  as  the  agent  of  the  buyers  for  that 
pui-pose ;  and  therefore,  nothing  more  remaining  to  be  done  by  the 
sellers,  the  property  passed.  But  with  respect  to  the  other  casks,  some- 
thing did  remain  to  be  done  by  the  sellers,  namely,  the  filling  them  up ; 
and  it  is  not  sufficient  for  them  to  say  that  they  were  not  called  upon 
to  do  so  by  the  buyers ;  for  if  they  meant  to  relieve  themselves  fi-om  all 
further  responsibility,  they  should  have  done  what  remained  for  them 
to  do,  and  until  that  was  done  the  property  continued  in  them. 

Upon  this  it  was  agreed  that  the  proportion  to  be  allowed  to  the 
plain  tifis  on  the  ten  casks  should  be  settled  out  of  court ;  and  that  the 
verdict  should  be  entered  accordingly. 


ZAGURY  V.  FURNELL  akd  Another. 

T  Nisi  Prius,  coram  Lord  Ellenborough,  July  19,  1809. 

[Reported  in  2  Campbell,  240.] 

Special  assumpsit  for  not  accepting  bills  of  exchange  for  the  price 
of  certain  goat  skins  sold  by  the  plaintiff"  to  the  defendants,  to  be  paid 
for  in  this  manner ;  together  with  counts  for  goods  bargained  and  sold, 
and  goods  sold  and  delivei-ed. 

The  bought  note  was  in  the  following  form : — 

Bought  of  Mr.  S.  Zagury,  of  Great  Prescott  Street,  289  bales  of  goat  skins 
from  Mogadore,  per  Commerce,  Capt.  John  Horswell,  containing  five  dozen  in 
each  bale,  at  the  rate  of  575.  6d.  per  dozen,  to  be  taken  as  they  now  lay,  with  all 
faults,  paid  for  by  good  bills  at  5  months. 

London,  27th  April,  1809. 
14  days  prompt. 

It  appeared  by  the  usage  of  trade  it  is  the  duty  of  the  seller  of  goat 
skins  by  bales,  in  this  manner,  to  count  them  over,  that  it  may  be  seen 
whether  each  bale  contains  the  number  specified  in  the  contract,  and 
that,  on  the  14th  of  May,  before  any  of  the  skins  in  question  had  been 
counted  over,  the  whole  were  destroyed  by  fire  at  the  wharf  where 
they  lay  at  the  time  of  the  sale. 

The  Attorney- General,  for  the  defendant,  contended,  on  the  au- 
thority of  Hanson  v.  Meyer,  6  East,  614,  and  Hinde  v.  Whitehouse,  7 
East,   558,   that   the   action   could  not   be   maintained.      Something 


SECT.  II.]  STONARD   V.    DUNKIN.  653 

remained  to  be  done  by  the  vendor  to  ascertain  the  amount  of  the 
price.  Till  the  enumeration  took  ])lace,  it  Avas  impossible  to  say  for 
what  sum  the  bills  should  be  drawn.  The  plaintiff  had  not  shown, 
and  could  not  show,  that  he  had  a  right  to  draw  the  bills,  which  the 
defendant  refused  to  accept.  Till  the  skins  were  counted,  therefore, 
they  remained  at  the  risk  of  the  seller,  and  he  must  submit  to  the  loss. 

Garrow,  contra,  argued  that  the  loss  must  fall  upon  the  person 
whose  property  the  goods  were  ;  and  there  could  be  no  doubt  that 
from  the  moment  the  contract  was  signed,  the  property  of  the  goods 
vested  in  the  purchaser.  As  to  the  number  of  the  skins,  probable  evi- 
dence must  be  sufficient  in  this  as  in  other  cases.  It  would  be  for  the 
jury  to  say  whether  they  believed  that  there  were  five  dozen,  or  what 
smaller  number,  in  each  bale. 

Lord  Ellenboeougu  was  of  opinion,  that  as  the  enumeration  of  the 
skins  was  necessary  to  ascertain  the  price,  this  was  an  act  for  the 
benefit  of  the  seller,  and  as  this  act  remained  to  be  done  by  him  when 
the  fire  happened,  there  was  not  a  complete  transfer  to  the  purchaser, 
and  the  skins  continued  at  the  seller's  risk.  The  number  of  skins 
actually  contained  iu  the  289  bales  being  uncertain,  the  plaintiff  had 
failed  to  show  that  he  was  authorized  by  the  terms  of  the  contract  to 
draw  the  bills  which  the  defendants  had  refused  to  accept. 

Plaintiff  nonsuited} 

/ 


STONARD  y.  DUXKIN  and  Another.    ^'^^     ^  y 
At  Nisi  Prius,  coram  Lord  Ellenborough,  January  20,  1810. 

[Reported  in  2  Campbell,  344.J 

Trover  for  malt ;  the  question  being,  whether  the  plaintiff  or  the 
assignees  of  one  Knight  were  entitled  to  it. 

The  plaintiff  gave  in  evidence  an  order  from  Knight  to  the  defend- 
ants, who  are  warehousemen,  to  hold  the  malt  on  the  jjlaintiff's  account, 
a  written  acknowledgment  from  the  defendant^  that  they  held  it  on 
t'iie'plainiiH'^s  account,  and  tkat  he  had  advanced  £7,500  to  Knight, 
for  which^lhy  maTT  was  to  be  a  security. 

1  The  plaintiff  afterwards  brought  an  action  on  the  same  contract  in  the  Court  of 
Common  Pleas,  which  was  tried  at  tlie  sittings  after  hist  Hilary  term.  Sir  J.  Mans- 
field, C.  J.,  likewise  directed  a  nonsuit,  being  of  opinion  that  it  was  necessary  to  show 
the  number  of  skins ;  and  that,  without  this  evidence,  the  plaintiff  could  not  recover 
on  the  general  counts  for  goods  bargained  and  sold,  any  more  than  on  the  special 
counts  for  not  accepting  the  bills  of  exchange.  Vide  Rugg  v.  Minett,  11  East,  210; 
Phillimore  v.  Barry,  1  Campb.  513. 


654  WITHERS   V.    LYSS.  [CHAP.  II. 

Garrow,  for  the  defendants,  contended,  that  the  malt,  notwithstand- 
ing, passed  under  the  commission  to  Knight's  assignees,  as,  from  the 
universal  usage  and  consent  of  the  trade  (which  he  undertook  to  prove), 
remeasuring  was  necessary  to  a  transfer  of  property  in  articles  of  this 
nature,  and  the  bankruptcy  intervened  before  the  malt  in  question  was 
remeasured. 

Lord  ELLENBOROUGn.  "Whatever  the  rule  may  be  between  buyer 
and  seller,  it  is  clear  the  defendants  cannot  say  to  the  plaintiff,  "  the 
malt  is  not  yours,"  after  acknowledging  to  hold  it  on  his  account.  By 
so  doing  they  attorned  to  him;  and  I  should  entirely  overset  the 
security  of  mercantile  dealings  were  I  now  to  suffer  them  to  contest  his 
title.  y     '/   u  Verdict  for  the  ^^Ic^i'titiff. 


ITHERS*  AND  Another  v.  LYSS  and  Others. 
Prius,   coram    Gibbs,   C.   J.,   June  24,  1815. 

[Reported  in  4  Campbell,  237.] 

Trover  for  a  quantity  of  rosin. 

The  defendants,  Lyss  &  Co.,  in  September,  1812,  sold,  and  were  paid 
for  the  rosin  in  question,  which  was  then  in  their  warehouse,  to  Withers, 
&  Co.,  the  plaintiffs.  Not  having  immediate  occasion  for  the  rosin, 
the  plaintiffs  requested  that  it  might  be  kept  in  their  names  and  at 
their  disposal,  by  the  defendants,  which  was  accordingly  done.  On 
the  21st  September  the  same  rosin  was  sold  by  the  plaintiffs  to  D. 
Bromer,  through  the  intervention  of  a  broker.  The  following  is  a  copy 
of  the  sale  note :  — 

Messrs.  Withers  &  Co. 

I  have  this  day  sold  by  your  order,  and  for  your  account,  to  Mr.  D.  Bromer, 
30  tons  (more  or  less)  of  town  made  transparent  rosin,  in  matts,  at  13s.  9c?.  per 
cwt.,  with  customary  allowances,  payable  at  the  end  of  14  days,  by  acceptance,  at 
6  months'  date. 

On  the  same  day  the  plaintiffs  wi'ote  and  delivered  to  Bromer  a 
delivery  order  for  the  rosin,  in  the  following  words  :  — 

Messrs.  Lyss  &  Co. 

Please  to  weigh  and  deliver  to  Mr.  D.  Bromer,   or  order,  our  transparent 

rosin,  in  matts  (about  30  tons,  more  or  less). 

Withers  &  Co. 

This  order  was  lodged  with  the  defendants  by  Bromer,  and  on  the 
6th  October  they  were  ready  to  weigh  and  deliver  the  rosin  to  him,  but 
he  never  sent  any  person  to  see  it  weighed.     In  consequence,  it  never 


SECT.  II.]  WITHERS   V.  LYSS.  655 

was  weicfhecl,  and  it  lias  ever  since  remained  in  the  defendants'  ware- 
house. 

On  the  17th  of  October  Bromer  stopped  payment,  and  on  the  19th 
of  the  same  month  the  defendants  received  a  written  countermand  of 
the  order  to  deliver  the  rosin  to  him,  with  notice  to  hold  it  on  the 
plaintiiF's  account.  A  commission  of  bankruptcy  issued  against  Bromer 
on  the  2d  of  Xovember. 

There  was  afterwards  a  demand  and  refusal  to  deliver  up  the  rosin 
to  the  plaintiffs. 

Vatighan,  Serjt.,  for  the  plaintiffs,  contended,  that  till  the  rosin  was 
weighed  the  delivery  to  Bromer  was  not  complete,  and  the  right  to 
stop  in  transitu  subsisted  upon  his  insolvency. 

Shepherd,  S.  G.,  contra,  distinguished  the  present  from  the  cases 
lately  decided  upon  this  subject  by  this  circumstance,  that  here  the  whole 
of  the  rosin  was  sold  to  Bromer.  It  was  a  sale  to  him  of  a  specific 
parcel  of  rosin,  and  no  question  about  the  identity  of  the  subject- 
matter  sold  could  arise.  Therefore,  upon  the  lodging  of  the  delivery 
order  with  the  defendants  they  became  his  agents,  and  held  the  article 
on  his  account.  Suppose  the  rosin  had  been  sent  home  to  Bromer's 
own  warehouse,  without  being  weighed,  there  can  be  no  doubt  that  the 
delivery  would  have  been  complete.  But  what  difference  can  it  make 
that  it  remained  at  the  warehouse  of  his  agents,  for  which  he  was 
paying  rent.  That  part  of  the  defendants'  warehouse,  in  which  the 
rosin  lay,  was  his  as  much  as  if  the  whole  had  been  demised  to  him. 
On  the  statute  of  James,  likewise,  he  argued  that  the  goods  would  pass 
to  the  assignees  of  Bromer. 

GiBBS,  C.  J.  Here  something  was  still  to  be  done  to  ascertain  the 
price  of  the  commodity.  The  rosin  was  sold  at  1.3s.  M.  per  cwt.,  and 
the  quantity  was  uncertain.  Therefore,  till  it  was  weighed,  the  bill  of 
exchange  by  which  payment  was  to  be  made  could  not  be  drawn. 
That  being  so,  according  to  the  decisions  both  of  this  court  and  the 
Court  of  King's  Bench,  the  delivery  was  not  complete,  and  the  right  to 
stop  in  transitu  subsisted.  I  think  it  makes  no  difference  that  the 
wjiole  of  the  rosin  Avas  sold.  The  principle,  I  take  to  be,  that  while 
any  thing  remains  to  be  done  to  ascertain  the  price,  the  possession  is 
not  considered  as  transferred  to  the  purchaser.  Had  the  rosin  been 
burnt  in  the  defendants'  warehouse  without  being  weighed,  how  could 
payment  have  been  made  according  to  the  terms  of  the  contract  ?  If 
nothing  remains  to  be  done  to  ascertain  the  price,  I  allow  that  a  de- 
livery order  lodged  with  the  warehousman  is  a  sufficient  transfer  of  the 
possession,  although  no  entry  for  that  purpose  be  made  in  his  books. 
The  order  here  is,  "  weigh  and  deliver."  There  could  be  no  delivery 
under  it  without  weighing,  and  the  goods  never  were  delivered  to 
Bromer.  The  statute  of  James  depends  on  the  pre\aous  question,  for 
if  they  were  never  delivered  to  hun  they  could  not  be  in  his  order  and 
disposition.  Verdict  for  the  2)la  i?ii  ij's. 


/>\f 


V 


^'  ^  y  A 

iJ^      «  6^'"  ,"1'^  P    U  HAWES   V.   WATSON.  [CHAP.  II. 


^OHAWES  AND  Another  v.  WATSON   and  Another. 

In  the  King's  Bench,  January  28,  1824. 
[Reported  in  2  Barnewall  Sf  Cresswell,  640.] 

Trover  for  a  quantity  of  tallow.     Plea,  not  guilty. 

At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after 
Michaelmas  term,  the  following  facts  were  proved  for  the  plaintiffs. 
The  plaintiffs  on  the  25th  of  September,  1823,  purchased  by  contract, 
of  Messrs.  Moberly  &  Bell,  300  casks  of  tallow  at  40s.  per  cwt.  On 
the  27th  of  September,  in  part  execution  of  their  contract,  Moberly  & 
Bell  sent  to  the  plaintiffs  the  following  transfer  note,  signed  by  the 
defendants,  who  were  wharfingers  :  — 

Messrs.  J.  &  B.  Hawes,  —  We  have  this  day  transferred  to  your  account  (by 
virtue  of  an  order  from  Messrs.  Moberly  &  Bell),  100  casks  tallow,  ex  Matilda, 
with  charges  from  October  10,  1823.     H.  &  M.     100  casks. 

The  plaintiffs  then  gave  Moberly  &  Bell  their  acceptance  for  2880?., 
the  price  of  the  tallow,  which  was  duly  paid,  and  afterwards  sold  21 
casks  of  this  tallow,  which  the  defendants  delivered,  pursuant  to  their 
order.  Moberly  &  Bell  stopped  payment  on  the  11th  October,  and 
on  the  14th  the  defendants  received  notice  from  Raikes  &  Co.,  the 
original  vendors  of  the  tallow,  not  to  deliver  the  remaining  casks  to 
Moberly  &  Bell,  or  their  order ;  and  the  defendants  in  consequence, 
refused  to  deliver  the  remainder  of  the  tallow  to  the  plaintiffs,  upon 
their  demanding  the  same.  On  the  part  of  the  defendants  it  was 
proved,  that  Moberly  &  Bell,  on  the  26th  September,  had  purchased 
of  Raikes  &  Co.  100  casks  of  tallow  (the  same  that  were  afterwards 
sold  to  the  plaintiffs)  landed  out  of  the  Matilda,  lying  at  Wat- 
son's wharf,  at  2?.  Is.  per  cwt.  to  be  paid  for  in  money,  allowing  2^ 
per  cent  discount,  and  fourteen  days  for  delivery ;  and  on  the  same 
day  Raikes  &  Co.  gave  a  written  order  upon  the  defendants  to  weigh, 
deliver,  transfer,  or  rehouse  the  tallow.  Moberly  &  Bell  had  not  paid 
for  the  same,  nor  had  it  been  weighed  subsequently  to  this  order. 
Upon  these  facts  it  was  contended  at  the  trial,  on  the  part  of  the 
defendants,  that  they  were  not  bound  to  deliver  to  the  plaintiffs  the 
remaining  seventy-nine  casks  of  tallow,  inasmuch  as  Raikes  &  Co.  had, 
as  between  them  and  Moberly  &  Bell,  a  right  to  stop  them  in  transitu^ 
the  delivery  to  Moberly  &  Bell  not  being  perfect,  inasmuch  as  the 
tallow  had  not  been  weighed.  The  Lord  Chief  Justice,  however,  was 
of  opinion  that  whatever  the  question  might  be  as  between  buyer  and 
seller,  the  defendants  having,  by  their  note  of  the  27th  of  September, 


SECT.  II.]  HAWES    V.    WATSON.  657 

acknowledged  that  they  heUl  the  tallow  on  account  of  the  plahitiffs, 
could  not  now  dispute  their  title  ;  and  the  plaintiffs  had  a  verdict. 

The  Attorney- General  now  moved  for  a  new  trial,  upon  the  ground 
taken  at  the  trial.  Hanson  v.  Meyer,^  is  an  authority  to  shew,  that  the 
absolute  property  in  the  tallow  Avould  not  vest  in  Moberly  &  Bell,  the 
first  vendee,  until  it  was  weighed.  The  contract  in  that  case  was  in 
terras  similar  to  the  contract  made  between  the  original  vendors  and 
Moberly  &  Bell.  The  weighing  must  precede  the  delivery,  in  order 
that  the  price  may  be  ascertained.  In  that  case  too,  part  of  the  goods 
had  been  Aveighed  and  delivered,  yet  it  was  held  that  the  vendor 
might  retain  the  remainder,  which  continued  unweighed  in  his  posses- 
sion ;  and  Shepley  v.  Davis  -  is  also  an  authority  to  the  same  effect. 

Abbott,  C.  J.  The  plaintiffs,  in  this  case,  paid  their  money  upon 
the  faith  of  the  transfer  note,  signed  by  the  defendants,  by  which  they 
acknowledged  that  they  held  the  tallow  as  their  agents.  If  we  were 
now  to  hold,  that,  notwithstanding  that  acknowledgment  and  that 
pajanent,  the  plaintiffs  are  not  entitled  to  recover,  we  should  enable 
the  defendants  to  cause  an  innocent  man  to  lose  his  money.  To  hold 
that  the  doctrine  of  stoppage  in  transitu  applied  to  such  a  case  as  the 
present,  would  have  the  effect  of  putting  an  end  to  a  very  large  por- 
tion of  the  commerce  of  the  city  of  London. 

Baylet,  J.  This  appears  to  me  very  different  from  the  ordinary 
case  of  vendor  and  vendee.  In  such  cases,  justice  requires  that  the 
vendee  shall  not  have  the  goods  unless  he  pays  the  price.  If  he  can- 
not pay  the  price,  the  vendor  ought  to  have  his  goods  back ;  but  if  the 
question  arises,  not  between  the  original  vendor  and  the  original  ven- 
dee, but. between  the  orioinal  vendor  and  a  pur<^h,gs(^r  f^(^vn  t,|]^  vendee^ 
that  purchaser  having  paid  the  full  price  for  the  goods,  what  is  the 
honesty  and  justice  and  equity  of  the  case  ?  Surely,  that  the  vendee 
who  has  paid  the  price,  shall  be  entitled  to  the  possession  of  the  goods. 
I  am  of  opinion,  that  when  Messrs.  Raikes  &  Co.  signed  the  order  to 
transfer,  weigh,  and  deliver,  that,  according  to  the  settled  course  and 
usage  of  trade,  enabled  Moberly  &  Bell  to  sell  the  goods  again. 
There  are  many  cases  in  which  it  has  been  held,  that  if  the  first  ven- 
dor does  any  thing  which  can  be  considered  as  sanctioning  the  sale  by 
his  vendee,  that  destroys  all  right  of  the  former  to  stop  in  transitu. 
Stoveld  V.  Hughes,^  llarman  v.  Anderson.^ 

HoLROYD,  J.  I  think  .that  the  note  given  by  the  defendants  makes 
an  end  of  the  present  question.  When  that  note  was  given,  the  tal- 
low became  the  property  of  the  plaintiffs,  and  is  to  be  consiilored  from 
that  time  as  kept  by  the  defendants  as  the  agents  of  the  plaintifls,  and 
the  latter  Avere  to  be  liable  from  the  10th  October  for  all  charges. 

1  6  East,  614.  2  5  Taunt.  617. 

3  14  East,  308.  *  2  Campb.  243. 


658  HAWES   V.   WATSON.  [CHAP.  II. 

This  case  is  very  different  from  that  of  Hanson  v.  Meyer.  There, 
there  was  a  sale  of  all  the  vendor's  starch  (the  quantity  not  being 
ascertained)  at  Ql  per  cwt.  The  order  was  to  weigh  and  deliver  all 
the  vendor's  starch,  and  a  part  having  been  weighed  and  delivered, 
but  not  the  residue,  the  main  question  before  the  court  was,  whether 
the  weighing  and  delivery  of  part  did  or  did  not  in  point  of  law 
operate  as  a  transfer  of  the  property  as  to  the  whole.  The  court  held, 
rightly,  that  it  did  not,  because  there  the  price  of  the  whole  which  was 
to  be  paid  for  by  bills  could  not  be  ascertained  before  it  was  weighed. 
The  delivery  of  part,  therefore,  was  not  a  delivery  of  the  whole,  but 
the  order  was  complied  with  only  as  to  the  part  which  was  weighed 
and  delivered,  and  the  property  in  the  residue  remained  unchanged 
until  something  further  was  done.  It  was  not  a  delivery  of  part  for 
the  whole,  and  therefore  it  did  not  operate  in  law  as  a  delivery  of  the 
whole  so  as  to  devest  the  vendor  of  his  right  to  stop  in  transitu;  but  here, 
the  wharfingers,  upon  the  receipt  of  the  order  directing  them  to  weigh 
and  deliver,  sent  an  acknowledgment  that  they,  the  wharfingers,  had 
transferred  the  goods  to  the  vendees,  and  that  they  would  be  consid- 
ered as  subject  to  charges  from  a  certain  period.  I  think,  therefore, 
that  the  wharfinger  then  held  the  tallow  as  the  goods  of  the  plaintiffs 
and  as  their  agents,  although  there  was  not  any  actual  weighing  of 
them ;  and  that  the  plaintiffs  were  then  in  possession  by  the  defendants 
as  their  agents,  they  having  acknowledged  themselves  as  such  by  their 
note.  For  these  reasons  I  am  of  opinion  that  the  plaintiffs  are  en- 
titled to  recover. 

Best,  J.  I  am  also  of  opinion  that  the  acknowledgment  which  has 
been  given  in  evidence  puts  an  end  to  all  question  in  this  case.  .  .  } 
It  appears  to  me,  too,  that  if  we  consider  the  principle  upon  which  the 
right  of  stoppage  in  transitu  is  founded,  it  cannot  extend  to  such  a 
case  as  the  present.  The  vendee  has  the  legal  right  to  the  goods  the 
,  moment  the  contract  is  executed,  but  there  still  exists  in  the  vendor 
an  equitable  right  to  stop  them  in  transitu^  which  he  may  exercise  at 
any  time  before  the  goods  get  actually  into  the  possession  of  the  ven- 
dee, provided  the  exercise  of  that  right  does  not  interfere  with  the 
rights  of  third  persons.  Now  it  appears  to  me  impossible  that  it  can 
be  exercised  in  this  case  without  disturbing  the  rights  of  third  persons, 
for  the  property  has  not  only  been  transferred  to  the  purchaser  in  the 
books  of  the  wharfingers,  but  there  has  been  an  acknowledgment  by 
them  that  they  hold  it  for  the  purchaser,  who  has  paid  the  price  of  it. 
It  has  been  said  that  there  has  been  no  change  of  property.  If  there 
has  not,  I  do  not  see  how  there  can  be  any  until  the  tallow  is  actually 
melted  down  and  converted  into  candles.     If  the  argument  on  the  part 

1  The  learned  judge  here  stated  the  cases  of  Harman  v.  Anderson,  2  Campb.  243, 
and  Stonard  v.  Dunkin,  id.  344.  —  Ed. 


SECT. 


II.]  SIMMONS   V.    SWIFT.  659 


1' 


of  the  defendants  be  valid,  the  vendor,  if  he  is  not  fully  paid,  has  a 
right,  if  the  goods  are  not  weighed,  to  stop  in  transitu,  even  though 
they  have  passed  through  the  hands  of  a  hundred  different  purchasers 
and  been  i)aid  for  by  all  except  the  first.  It  appears  to  me  that  we  should 
disturb  an  established  principle  if  Ave  held  that  this  could  be  done  in 
such  a  case  as  the  present.  I  think  the  right  of  stoppage  in  transitu  is 
an  equitable  right,  to  be  exercised  by  the  vendor  only  Avhen  it  can  be 
done  without  disturbing  the  rights  of  third  persons.  Here,  that  can- 
not be  done,  and  therefore  I  think  that  Raikes  &  Co.  had  not  any  right 
to  stop  in  transitu^  and  that  the  plaintiffs  are  therefore  entitled  to 
recover  \<^^  y  Mule  discharged. 

>-    'l'''^'^'^  HENRY   SIMMONS   y.   HEZ^KIAH   SWIFT. 


^ 
^1^     J  ^.    /        In  the  King's  Bench,  Trinity  Term,  1826. 

^  [Reported  in  5  Barnewall  ^  Cresswell,  857.] 

Indebitatus  assumpsit  for  bark  sold  and  delivered ;  the  usual  money 
counts,  and  a  count  upon  an  account  stated.  At  the  trial  before  Little- 
dale,  J.,  at  the  spring  assizes  for  the  county  of  Monmouth,  1826,  the 
jury  found  a  verdict  for  the  plaintiff  for  the  sum  of  £106  3^.  Sd.,  sub- 
ject to  the  opinion  of  this  court  upon  the  following  case  :  The  plain- 
tiff and  defendant  were  both  dealers  in  timber  and  bark,  the  plaintiff 
residing  at  Whitebrook  in  Monmouthshire,  and  the  defendant  in  the 
town  of  Monmouth.  Previously  to  the  23d  of  October,  1824,  the 
plaintiff  was  possessed  of  a  quantity  of  oak  bark,  which  was  stacked 
at  a  place  called  Redbrook,  on  the  banks  of  the  river  Wye,  about  two 
miles  below  the  town  of  Monmouth,  and  which,  in  July  preceding, 
weighed  twenty  tons.  Upon  the  23d  of  October,  the  following  agree- 
ment for  the  sale  of  the  said  bark  was  signed  by  the  plaintiff  and  the 
defendant.  "  I  have  this  day  sold  the  bark  stacked  at  Redbrook,  at 
£9  bs.  per  ton  of  twenty-one  hundred-weight,  to  Hezekiah  Swift, 
which  he  agrees  to  take,  and  pay  for  it  on  the  80th  of  November." 

It  was  afterwards  verbally  agreed  between  the  parties,  that  one 
William  Simmons,  a  brother  of  the  plaintiff,  should  see  the  bark 
weighed  on  behalf  of  the  plaintiff,  and  one  James  Diggett  should  see 
it  weighed  on  behalf  of  the  defendant.  Within  five  days  after  the 
signing  of  this  agreement,  the  defendant  sent  several  of  his  barges  and 
his  servants  to  Redbrook,  and  took  a  quantity  of  the  bark,  amounting 
to  8  tons  14  cwt.  He  sent  for  William  Simmons  Avho  was  at  Avork  in 
a  wood  near  to  Redbrook,  to  see  the  bark  Avcighed  on  behalf  of  his 
brother,  which  William  Simmons  accordingly  did,  and  was  paid  for  his 


660  SIMMONS   V.    SWIFT.  [CHAP.  II. 

trouble  by  his  brother's  wife.     WilUam  Simmons  said  he  was   not 
directed  by  his  brother  to  see  the  bark  weighed,  and  did  not  know  that 
it  had  been  sold  until  he  was  fetched  from  the  wood  by  the  defend- 
ant's messenger.     James  Diggett  attended  the  weighing  on  the  part  of 
the  defendant.     The  bark  so  taken  by  the  defendant  was  carried  by 
his  barges  down  the  river  Wye  to  Chepstow.     The  remainder  of  the 
stack  was  covered  with  a  tarpaulin  belonging  to  the  defendant,  but 
which  tarpaulin  had  been  upon  the  premises  at  Redbrook,  having  been 
lent  by  the  defendant  for  that  pui-jDOse  to  the  person  who  sold  the  bark 
to  the  plaintiff ;  and  had  been  used  to  cover  a  part  of  the  stack  before 
the  signing  of  the  agreement  by  the  plaintiff  and  defendant.     About 
eight  or  nine  days  after  part  of  the  bark  had  been  so  removed  by  the 
defendant,  a  Mr.  James  Madley,  iipon  whose  premises  at  Redbrook  the 
bark  was  stacked,  met  the  defendant,  and  asked  him  when  he  intended 
to  take  the  remainder  of  the  bark  away,  as  it  was  stacked  over  part  of 
a  saw-pit  which  he,  Madley,  wanted  to  use ;  the  defendant  answered 
that  he  should  have  it  taken  away  in  a  few  days.     The  defendant  did 
not  at  any  time  take  away  the  remainder  of  the  bark,  nor  was  it 
weighed.     Towards  the  latter  end  of  November  there  was  an  extraor- 
dinary flood,  which  overflowed  the  banks  of  the  river  Wye,  and  rose 
nearly  to  the  height  of  five  feet  around  the  remainder  of  the  stack  of 
bark,  and  did  it  very  considerable  injury.     There  was  suflicient  time 
for  the  defendant  to  have  removed  the  whole  of  the  bark  before  the 
flood  happened.     The  defendant  was  seen  examining  the  remainder  of 
the  bark  after  it  had  been  injured  by  the  flood,  and  the  tarpaulin  before 
mentioned  remained  upon  the  bark  until  the  28th  of  January,  1825, 
when  it  was  removed  by  some  of  the  defendant's  servants  who  were 
passing  up  the  river  in  a  barge.     On  the  fourth  day  of  December,  1824, 
the  plaintiff  called  at  the  defendant's  counting-house,  and  the  defend- 
ant said  he  was  ready  to  pay  for  the  bark  which  had  been  removed, 
viz.,  8  tons  14  cwt.,  and  by  the  plaintiff's  direction  an  account  was 
made  out  of  the  bark  which  the  defendant  had  taken  away  as  afore- 
said, and  the  defendant  paid  the  amount  by  a  check,  which  was  duly 
honored.     The  plaintiff  signed  the  account  as  settled,  but  at  the  same 
time  said  that  no  advantage  should  be  taken   of  his  so  doing,  and 
required  the  defendant  to  take  and  pay  for  the  rest  of  the  bark  which 
he  refused  to  do.     Bark  is  an  article  which  varies  very  considerably  in 
weight  according  as  the  air  is  moist  or  dry,  and  according  to  the  sea- 
son of  the  year.     The  question  at  the  trial  was,  whether  the  plaintiff 
was  entitled  to  recover  in  this  action  for  the  bark  which  remained 
standing  at  Redbrook.     According  to  the  weight  of  the  bark  in  July 
preceding,  a  quantity  remained  which,  at  the  price  mentioned  in  the 
agreement  of  23d  of  October,  1824,  amounted  to  the  sum  of  £106  5s. 
I    8d,  for  which  the  verdict  was  taken. 

Oldncdl  Bussell,  for  the  plaintiff.    The  property  in  the  bark  vested  in 


SECT,  II.]  SIMMONS   V.   SWIFT.  661 

the  defendant  as  soon  as  the  contract  was  made,  and  the  subsequent 
delivery  of  a  part  was  in  law  a  delivery  of  the  whole.  Slubey  v.  Hey- 
ward,^  Hammond  v.  Anderson.-  The  case  of  Hanson  v.  Meyer '  will 
be  relied  on  to  shew  that  the  property  had  not  vested  ;  but  there 
something  remained  to  be  done  by  the  vendor;  it  was  part  of  the  con- 
tract that  the  goods  sold  should  be  weighed  before  they  were  deliv- 
ered. Upon  the  facts  found  in  this  case  no  act  remained  to  be  done  by 
the  vendor.  The  contract  was  for  an  absolute  sale,  the  purchaser  was 
to  take  the  bark  and  pay  for  it  on  a  day  specified  ;  and  it  was  not  made 
a  condition  that  the  bark  should  be  previously  weighed.  The  pur- 
chaser was  at  liberty  to  take  the  bark  immediately,  and  in  fact  did  take 
a  part.  Since  the  decision  of  Hanson  v.  Meyer  several  cases  somewhat 
similar  have  occurred,  in  which  it  was  held  that  goods  contracted  for 
had  not  vested  in  the  purchaser,  Rugg  v.  Minett,*  Wallace  v.  Breeds,^ 
Austen  v.  Craven,®  White  v.  Wilks,''  Busk  v.  Davis,*  Shepley  v.  Davis ;' 
but  in  each  of  them  it  was  made  necessary,  either  by  express  contract 
or  by  the  usage  of  trade,  that  some  further  act  should  be  done  by  the 
vendor  before  the  goods  were  transferred  to  the  purchaser.  [Bayley, 
J.  When  did  the  delivery  in  this  case  take  place  ?  ]  As  soon  as  the 
vendee  took  away  a  part  of  the  goods.  In  2  Bl.  Com.  448,  it  is  said : 
"  As  soon  as  the  bargain  is  struck  the  property  of  the  goods  is  trans- 
ferred to  the  vendee,  and  that  of  the  price  to  the  vendor,  but  the  ven- 
dee cannot  take  the  goods  until  he  tenders  the  price  agreed  on." 
[HoLROYD,  J.  The  declaration  is  for  goods  sold^and  dtdi vexiiiL not  for 
goods  bargained  and  sold.]  If  the  property  vested  in  the  defendant, 
then  a  delivery^of'part  was  clearly  a  delivery  of  the  wdiole. 

Campbell,  contra.  This  action  for  goods  sold  and  delivered  cannot 
be  maintained  unless  the  plaintiff  makes  out  not  only  that  the  prop- 
erty in  the  whole  of  the  bark  vested  in  the  defendant,  but  also  that 
the  whole  was  delivered.  He  must  show  that  he  had  divested  himself 
of  all  lien  upon  the  bark,  and  that  the  defendant  might  have  main- 
tained trover  for  it  without  paying  or  offering  to  pay  the  price.  Goodall 
V.  Skelton.^"  This  case  is  directly  within  the  authority  of  Hanson  v. 
Meyer ;  the  bark  Avas  sold  at  a  certain  sum  per  ton,  it  was  therefore 
necessary  to  weigh  it  in  order  to  ascertain  the  price.  Weighing,  then, 
was  made  necessary  by  the  contract,  and  it  was  an  act  to  be  done  by 
the  vendor.  If  weighing  was  to  precede  the  delivery,  the  bark,  until 
weighed,  remained  in  the  possession  of  the  vendor,  and  the  vendee 
could  have  no  right  to  weigh  it,  but  was  bound  to  call  upon  the  vendor 
to  do  it.  The  authority  of  Hanson  v.  Meyer  has  never  been  called  in 
question ;  it  is  therefore  sufficient  for  the  decision  of  this  case ;   it 

1  2  H.  Bl.  504.  2  1  N.  R.  69.  3  6  East,  614. 

<  11  East,  216.  5  13  East,  522.  6  4  Taunt.  644. 

7  5  Taunt.  176.  8  2  M.  &  S.  397.  »  5  Taunt.  617. 
10  2  H.  Bl.  316. 

TOL.   I.  48 


662  SIMMONS   V.    SWIFT.  [CHAP.  II. 

proves  that  the  property  never  vested  in  the  defendant,  and  if  it  had 
vested  still  there  was  no  delivery. 

Batlet,  J.  Two  questions  are  involved  in  this  case  :  first,  whether 
the  property  in  the  bark  was  vested  in  the  defendant,  so  as  to  throw 
all  risks  upon  him;  secondly, w^hether  there  had  been  such  a  delivery  of 
the  bark  as  would  support  this  form  of  action.  It  is  not,  perhaps,  nec- 
essary to  give  any  opinion  upon  the  first  point,  but  I  think  it  right  to  do 
so,  as  it  is  most  satisfactory  to  determine  the  case  upon  the  main 
ground  taken  in  argument.  I  think  that  the  property  did  not  vest  in 
the  defendant  so  as  to  make  him  liable  to  bear  the  loss  which  has 
occurred.  Generally  speaking,  where  a  bargain  is  made  for  the  pur- 
chase of  goods,  and  nothing  is  said  about  payment  or  delivery,  the 
property  passes  immediately,  so  as  to  cast  upon  the  purchaser  all  future 
risk,  if  nothing  further  remains  to  be  done  to  the  goods ;  although  he 
cannot  take  them  away  without  paying  the  price.  If  any  thing  remains 
to  be  done  on  the  part  of  the  seller,  until  that  is  done  the  property  is 
not  changed.  In  Rugg  v.  Minett  and  Wallace  v.  Breeds,  the  thing 
which  remained  to  be  done  was  to  vary  the  nature  or  quantity  of  the 
commodity  before  delivery ;  that  was  to  be  done  by  the  seller.  In 
other  cases  the  thing  sold  was  to  be  separated  from  a  larger  quantity 
of  the  same  commodity.  This  case  was  difi*erent ;  the  sxxbject-matter 
of  the  sale  was  clearly  ascertained.  The  defendant  agreed  to  buy  the 
bark  stacked  at  Redbrook,  meaning  of  course  all  the  bark  stacked 
there  ;  but  it  was  to  be  jjaid  for  at  a  certain  price  per  ton.  The  bar- 
gain does  not  specify  the  mode  in  Avhich  the  weight  was  to  be  ascer- 
tained, but  it  Avas  necessary  that  it  should  be  ascertained  before  the 
price  could  be  calculated,  and  the  concurrence  of  the  seller  in  the  act 
of  Aveighing  was  necessary.  He  might  insist  upon  keeping  possession 
until  the  bark  had  been  weighed.  If  he  was  anxious  to  get  rid  of  the 
liability  to  accidental  loss,  he  might  give  notice  to  the  buj^er  that  he 
should  at  a  certain  time  Aveigh  the  bark,  but  until  that  act  Avas  done  it 
remained  at  his  risk.  In  Hanson  v.  Meyer,  Aveighing  Avas  the  only 
thing  that  remained  to  be  done ;  there  was  not  any  express  stipulation 
in  the  contract  that  the  starch  (the  subject-matter  of  that  contract) 
should  be  Aveighed ;  that  was  introduced  in  the  delivery  order,  but  the 
nature  of  the  contract  made  it  necessary.  So  here  the  contract  made 
weitdiing  necessary,  for  Avithout  that  the  price  could  not  be  ascertained. 
Suppose  the  plaintiff  had  declared  specially  upon  this  contract,  he  must 
have  alleged  and  proved  that  he  sold  the  bark  at  a  certain  svimper  ton, 
that  it  Aveighed  so  many  tons,  and  that  the  price  in  the  Avhole  amounted 
to  such  a  certain  sum.  The  case  of  Hanson  v.  Meyer  differs  from  this 
in  one  particular ;  viz.,  that  the  assignees  of  the  vendee  who  had  be- 
come bankrupt  AA'ere  seeking  to  recoA'cr  the  goods  sold ;  but  the  lan- 
guage of  Lord  Ellenborough  as  to  the  necessity  of  AA'eighing  in  order 
to  ascertain  the  price  before  the  property  could  be  changed  is  applica- 


SECT.  II.]  SIMMONS   V.    SWIFT.  663 

ble  to  the  present  case,  and  decides  it.  I  therefore  think  that  the  bark 
which  remained  unweighed  at  the  time  of  the  loss  was  at  the  risk  of  the 
seller ;  and  even  if  the  proi^erty  had  vested  in  the  defendant,  I  should 
have  thought  that  it  had  not  been  delivered,  and  consequently  that  the 
price  could  not  be  recovered  on  a  count  for  goods  sold  and  delivered. 

HoLKOYi),  J.  I  also  think  that  the  plaintiff  cannot  recover.  By  a 
contract  for  the  sale  of  specific  goods,  it  is  true,  as  a  general  position, 
that  the  ])roperty  is  changed,  although  the  seller  has  a  lien  for  the 
price,  unless  the  contract  is  for  a  sale  upon  credit ;  then  the  goods  re- 
main at  the  risk  of  the  buyer.  But  Hanson  v.  Meyer  is  a  direct 
authority,  that  in  such  cases  as  the  present  the  seller  does  not  pai-t  Avith 
the  goods  until  the  -weigliing  has  been  accomplished.  Secondly,  I  think 
that  the  bark  was  not  delivered.  If  there  was  a  delivery  the  seller 
could  have  no  lien  for  the  price,  even  if  the  contract  did  not  make  the 
bark  deliverable  until  the  30th  of  November ;  there  was  neither  a  j^er- 
formance  of  the  weighing  nor  an  offer  to  perform  it. 

LiTTLEDALE,  J.  I  entertain  some  doubt  Avhether  the  j^roperty  did 
not  pass  by  this  contract;  and  that  doubt,  as  it  seems  to  me,  is  not  in- 
consistent with  the  decision  in  Hanson  v.  Meyer,  The  question  tliere 
was,  whether  the  assignees  of  the  purchaser  had  a  right  to  call  for  a 
delivery  of  the  goods  sold.  Lord  Ellenborough  said,  payment  of  the 
price  and  the  weighing  of  the  goods  necessarily  preceded  the  absolute 
vesting  of  the  property ;  which  expression  I  take  to  have  been  used 
with  reference  to  the  then  question,  viz.,  whether  the  property  had  so 
vested  in  the  purchaser  as  to  entitle  his  assignees  to  claim  the  deliv- 
ery. So  in  this  case,  although  the  property  might  vest  in  the  pur- 
chaser, it  would  not  follow  that  he  could  enforce  a  delivery  until  the 
weight  of  the  bark  had  been  ascertained  and  the  price  jiaid.  Here 
there  was  not  a  delivery  in  fact,  nor  was  the  delivery  of  pax"t  a  con- 
structive delivery  of  the  whole.  Tliis  differs  from  the  cases  of  lien 
or  stoppage  in  transitu^  in  which  it  may  be  considered,  that  a  delivery 
of  part  is  in  the  nature  of  a  waiver  of  the  lien,  or  right  to  stop  in  tran- 
situ. I  think  further  that  an  action  for  goods  bargained  and  sold 
would  not  lie  merely  because  the  i:)roperty  passed.  The  mere  bargain 
would  not  suffice,  because  no  specific  i^rice  was  fixed  ;  nor  could  the 
plaintiff  recover  on  a  quantwn  valebat,  for  the  contract  was  to  j^ay 
by  weight ;  and  therefore,  until  the  commodity  was  weighed,  there 
would  be  nothing  to  guide  the  jury  in  the  amount  of  damages  to  be 
given.  The  seller  Avas  at  all  events  bound  to  offer  to  weigh  the  bark, 
but  he  never  did  so.     For  these  reasons  I  think  he  cannot  recover. 

Posted  to  the  defendant. 


664  LAIDLER   V.    BURLINSON.  [CHAP.  II. 

LAIDLER  V.  BURLINSON. 

In  the  Exchequer,  Easter  Term,  1837. 

[Reported  in  2  Meeson  Sf  Welsby,  602.] 

Teoyer  for  one-fourth  part  of  a  ship.  The  defendant  pleaded,  first, 
not  guilty ;  secondly,  that  the  plaintiiF  was  not  possessed  as  of  his  own 
property  of  the  said  one-fourth  part  of  the  ship  ;  and  thirdly,  that  before 
the  supposed  conversion,  one  James  Laing  became  a  bankrupt,  and  the 
defendant  was  appointed  his  assignee,  and  that  at  the  time  of  the 
bankruptcy  the  ship  was  in  the  possession,  order,  and  disposition  of 
him,  the  said  James  Laing,  as  reputed  owner,  by  consent  of  the  true 
owner.  Upon  the  two  first  pleas,  the  plaintiff  took  issue,  and  to  the 
last  plea  he  replied,  that  the  said  ship  was  not  by  the  consent  and  per- 
mission of  the  plaintiff,  as  true  owner  thereof,  in  the  possession,  order, 
or  disposition  of  the  said  James  Laing  as  reputed  owner;  and  upon  this 
also  issue  was  joined.  At  the  trial  at  the  Spring  Assizes  for  Northum- 
berland, 1836,  before  Lord  Denman,  C.  J.,  a  verdict  was  found  for  the 
plaintiff  for  £200,  subject  to  the  opinion  of  this  court  upon  the  fol- 
fowing  case :  — 

In  the  year  1833,  and  until  the  time  of  his  bankruptcy,  James  Laing 
carried  on  business  as  a  ship-builder  at  Middlesborough,  in  the  county  of 
York.  An  agreement  signed  by  James  Laing  and  the  plaintiff,  and 
the  other  parties  whose  names  purport  to  be  thereimto  signed,  was 
produced  in  evidence  at  the  trial,  which  was  as  follows :  — 

Middlesborough,  June  10, 1833. 
Particulars  of  build  and  description  of  a  new  ship  now  about  one-third  built,  in 
the  yard  of  James  Laing.  Length  of  keel  aground,  75  ft.  6  in. ;  rake  forward, 
7  ft. ;  rake  of  post,  1  ft.  6  in. ;  extreme  breadth,  24  ft.  4  in. ;  depth  of  hold,  13  ft. 
4  in. ;  and  will  admeasure  200  tons  register,  and  carry  14  keels  of  coals  at  12  ft. 
9  in.  water.  Keelfiners,  Eng.  elm  forward,  and  aft,  Am. ;  in  midships,  frame  all 
Eng. ;  also  stern,  sternpost,  and  hooks ;  floors,  lOi  to  11  in.,  sided  and  moulded 
first  futtocks,  8i  by  9  ;  second  ditto,  7^  by  8  ;  top  timbers,  7  by  6  at  the  wales, 
and  4  in.  top  height;  keelsons.  Am.  oak;  outside  plank  below  the  light  marks, 
Am.  elm,  birch,  or  Engl,  beech,  2h  in.  in  the  flat;  three  strakes  of  4  in.  in  each 
bilge,  and  two  strakes  of  3  in.  and  2J  upwards ;  from  thence  3  in.  oak  to  the 
wales ;  the  wales  three  strakes  of  4  in.,  two  black  strakes  3  in.  and  2|,  top-sides 
2i  in. ;  paint  strake  and  covering  boards  3  in. ;  water  ways  4  in. ;  all  oak  decks  ; 
3  in.  red  pine  ceiling ;  one  strake  of  3  in.  next  the  keelson  ;  part  of  floor  2|  in. ; 
three  strakes  of  3i  in.  in  the  bilge,  from  thence  2i  in.  in  the  midships,  and  2  in. 
the  ends;  two  strakes  of  3  in.  beam  clamps,  4  in.  stringer  above  the  H  B.  and 
ceiling,  between  decks  2  in.  and  one  strake  of  3  in.  deck  beam  clamp.  To  have 
11  H  beams  and  15  deck  beams,  fastened  with  wood  or  iron  lodging  knees ;  to 
have  five  hooks  forward,  and  have  sufficient  coaming,  windlass,  bits,  catheads, 
rudder,  capstern,  boats,  checkers,  hatches,  bulkheads,  and  the  hull  to  be  com- 


SECT.  II.  LAIDLER   V.    BURLINSON. 


665 


pleted  in  every  respect  with  carpentry,  joiner,  blacksmith,  turner,  painter,  and 
plumber  work,  long-boat  and  skiff,  and  to  be  fitted  out  with  all  spars,  masts, 
cordage,  chains,  anchors,  cooper  stores,  and  every  other  stores  sufficient  and  as 
usual  in  the  coal  trade,  and  ready  to  take  in  a  cargo  of  coals  without  any  extra 
whatever,  and  to  be  launched  in  the  early  part  of  September  next.  Two  chain 
cables  eighty-five  fathoms  each,  one  chain  hawser  sixty  fathoms,  hempen  tow-line 
and  two  warps,  a  spare  topsail,  foresail,  and  fore-topmost  staysail ;  the  paint- 
strakes  to  be  English  oak ;  for  the  sum  of  17501,  and  payment  as  follows,  oppo- 
site to  each  respective  name. 

This  agreement  was  signed  by  James  Laing,  and  after  his  signature 
followed  these  words :  — 

We,  the  undersigned,  hereby  engage  to  take  shares  in  the  before-mentioned 
vessel,  as  set  opposite  to  our  respective  names,  and  also  the  mode  of  payment :  — 


Tees  Coal  Company  payment  for 
one-fourth, 


6  mo.  29,  Bill.       £200        0         0 

7  mo.  12,  Cash,       233         2       11 
James  Laing. 

John  Atkinson,  one-eighth  ;  payment  in  rope  and  canvas. 

Thomas  Laidler,  one-fourth, 

William  B.  Earle,  one-eighth. 

William  Fairbridge,  one-sixteenth,  cash,  £55,  July  25,  1833. 

Philip  and  Joseph  Heselton,  one-eighth. 

Anthony  Harris,  for  one-sixteenth,  cash  f  j      p    t  o"  o- 

and  goods,  £103,  15*.  9d.  — 12  mo.  5,  1833.  ^  ^^  ^      '"^* 

MiDDLESBOROUGH,  July  14,  1833.     I  hereby  agree  to  accept  the  above  price 

and  mode  of  payment. 

James  Laing. 

In  the  month  of  October,  1833,  the  plaintiff  entered  into  and  signed 
the  above  agreement.  William  B.  Earle,  Fairbridge,  and  P.  and  J. 
Heselton  afterwaixls,  and  before  the  act  of  bankruptcy,  at  separate 
times  entered  into  and  signed  tlie  agreement.  Antliony  Harris,  whose 
name  appears  last  as  a  party  subscribing  it,  on  the  18th  of  January, 
1834  (and  not  before,  although  it  purports  to  bear  date  in  December), 
the  day  after  James  Laing  committed  the  act  of  bankruptcy  on  which 
the  fiat  hereinafter  mentioned  was  founded,  entered  into  and  signed  the 
agreement  in  question.  It  is  to  be  taken,  for  the  purpose  of  this  case, 
that  whatever  might  be  the  effect  of  the  agreement  as  to  passing 
the  property  in  the  respective  shares  to  the  sevei-al  parties,  at  all  events 
one-sixteenth,  which  A.  Harris  agreed  to  buy,  did  not  pass  to  him,  but 
became  vested  in  the  defendant,  as  assignee  of  James  Laing  under  his 
bankruptcy.  In  order  to  prove  payment  by  the  plaintiff  to  Laing  for 
his  proportion  of  the  ship,  he  gave  in  evidence  the  folloM'ing  facts,  viz. : 
that  in  the  month  of  June,  1833,  he  had  accepted  a  bill  for  £30,  drawn 
by  Laing  upon  him,  and  which  was  paid  by  him  when  due ;  also  that 
another  bill,  dated  29th  October,  1833,  was  drawn  by  Laing  upon  and 
accepted  by  the  plaintiff  for  £293  6s.  Sd. :  and  he  tlien  proved  that  on 
the  5th  of  December,  1833,  timber  to  the  amount  in  value  of  £129  125. 


666  LAIDLER   V.    BURLTNSON.  [CHAP.  II. 

%cl.  Avas  supplied  by  him  to  Laing,  which  was  expressly  agi-eed  at  the 
time  of  the  supply  to  be  taken  in  part  payment  for  the  said  vessel. 

In  the  month  of  June,  1833,  the  said  James  Laing  had  the  ship,  in 
respect  of  which  this  action  is  brought,  about  one-third  built,  and  in  his 
shipyard,  and  he  had  at  that  time  no  other  ship  upon  the  stocks ;  and 
fi-om  that  time  until  the  time  of  the  bankruptcy  of  James  Laing  he 
proceeded  with  the  building  of  this  ship,  and  after  the  signature  of  the 
plaintiff  to  this  agreement,  expended  large  sums  of  money  in  and  about 
building  it.     The  Tees  Coal  Company,  whose  signature  appears  to  the 
agi-eement,  consisted  at  that  time  of  two  persons  named  Taylor  and 
Harris.     Harris  used  to  go  and  look  at  the  vessel  when  building,  and 
occasionally  found  foult  with  the  work,  which  was  improved  in  conse- 
quence, and  the  bankrupt  had  told  his  foreman  to  act  under  Harris's 
direction.     On  the  17th  of  January,  1834,  Laing  committed  an  act  of 
bankruptcy,  and  on  the  25th  of  the  same  month  a  fiat  issued  thereon 
against  him,  under  which  he  was  adjudged  a  bankrupt ;  and  the  defend- 
ant was  duly  appointed  assignee  of  his  estate  and  effects.    At  the  time 
of  the  bankruptcy  the  frame  of  the  said  vessel  was  on  the  stocks  in 
Laing's  building  yard,  in  an  unfinished  state,  and  after  the  bankruptcy 
some  men  continued  to  work  and  receive  their  money  fi'om  Harris. 

The  messenger  under  the  fiat  seized  and  took  possession  of  the  ship 
in  the  building  yard  of  James  Laing. 
The  vessel  was  ultimately  completed. 

To  prove  a  conversion  by  the  defendant  of  the  ship  in  question,  the 
plaintiff's  attorney  proved  that  on  the  24th  of  January,  1835,  he,  on 
the  part  of  the  plaintiff,  made  a  demand  of  the  vessel  on  the  defendant, 
who  answered  that  he  had  sold  it  for  £970  or  £980  to  a  person  named 
Metcalfe,  who,  at  the  time  of  the  demand,  and  at  the  time  of  the  com- 
mencement of  this  action,  had  possession  of  it.  The  vessel,  at  the  time 
of  the  bankruptcy,  was  not  in  the  possession,  order,  or  disposition  of 
the  bankrupt  as  reputed  owner  thereof. 

The  first  question  for  the  opinion  of  the  court  is,  whether  or  not  the 
property  in  one-fourth  of  the  vessel  passed  to  the  plaintiff  under  the 
above  circumstances ;  if  not,  a  verdict  to  be  entered  for  the  defendant. 
If  the  court  shall  be  of  opinion  that  the  property  passed,  but  that  the 
defendant  had  not  been  guilty  of  a  conversion,  then  a  nonsuit  to  be 
entered ;  but  if  the  property  passed,  and  the  defendant  had  been  guilty 
of  a  conversion,  then  a  verdict  for  the  plaintiff  for  £200.  It  is  to  be 
taken  as  a  fact,  that  if  the  property  in  one-fourth  passed  to  the  plain- 
tiff the  defendant   was   tenant   in   common   of  the   vessel  with  the 

plaintiff. 

S.  Temple,  for  the  plaintiff.  The  first  question  is,  whether,  by  this 
agreement,  the  property  in  the  ship  passed  from  the  bankrupt  to  the 
purchasers.  The  distinction  is  this,  where  an  artisan,  directed  to 
make  an  article  not  in  being,  prepares  to  make  it,  and  goes  on  execut- 


SECT.  II.]  LAIDLER   V.    BURLINSON.  66T 

ing  the  order,  but  has  power  within  the  tenns  of  the  contract  to  deliver 
that  article  or  a  similar  one,  no  property  passes  until  the  article  is 
actually  delivered  ;  but  where  the  article  is  in  being  at  the  time,  the 
property  vests  at  once  in  the  purchaser,  and  the  artisan  is  bound  to 
deliver  that  specific  article.     In  Mucklow  v.  Mangles,^  it  was  held  that 
if  a  person  contracts  with  another  for  a  chattel  which  is  not  in  exist- 
ence at  the  time  of  the  contract,  though  the  purchaser  pays  the  whole 
value  in  advance,  and  the  seller  proceeds  to  execute  the  order,  the 
former  acquires  no  property  in  the  chattel  until  it  is  finished  and 
delivered  to  him.     Heath,  J.,  there  says :  "  If  the  thing  be  in  exist- 
ence at  the  time  of  the  order,  the  property  of  it  passes  by  the  contract, 
but  not  so  where  the  subject  is  to  be  made."     This  decision  was  recog- 
nized in  Woods  v.  Russell,"  which  is  more  like  the  present  case,  and  is 
an  authority  in  point.     [Aldersox,  B.     In  Woods  v.  Russell,  that  was 
not  the  important  point.]     The  observations  of  Abbott,  C.  J.,  in  de- 
livering the  judgment  of  the  court,  are  strongly  applicable.     He  says : 
"  This  ship  is  built  upon  a  special  contract,  and  it  is  part  of  the  terms 
of  the  contract  that  given  portions  of  the  price  shall  be  paid  according 
to  the  progress  of  the  work ;  part  when  the  keel  is  laid,  part  when  they 
are  at  the  light  plank.     The  payment  of  these  instalments  appears  to 
us  to  appropriate  specifically  to  the  defendant  the  very  ship  so  in  pro- 
gress, and  to  vest  in  the  defendant  a  property  in  that  ship,  and  that  as 
between  him  and  the  builder  he  is  entitled  to  insist  upon  the  com- 
pletion of  that  very  shi]),  and  that  the  builder  is  not  entitled  to  require 
him  to  accept  any  other."     It  is  true  that  this  conclusion  is  somewhat 
qualified  in  Clarke  v.  Spence,^  where  Williams,  J.,  in  delivering  the 
judgment  of  the  court,  after  reading  the  above  passage,  says :  "  If  it  be 
intended  in  this  passage  that  the  specific  appropriation  of  the  parts  of 
a  vessel  while  in  progress,  however  made,  of  itself  vests  the  property  in 
the  person  who  gives  the  order,  the  proposition  in  so  general  a  form 
may  be  doubtful."     But  the  present  case  is  much  stronger  in  its  circum- 
stances than  Woods  v.  Russell.     There  no  ship  was  in  existence  at  the 
time  of  the  contract,  and  it  was  held  to  be  an  appropriation  of  the  specific 
chattel  only  when  the  first  instalment  Avas  paid ;  but  here  there  was  an 
express  contract  for  a  specific  chattel,  one-third  of  Avhich  was  in  exist- 
ence at  the  time.     The  agreement  states  it  to  be  "  one-third  built."   Xo 
.  instalments  were  to  be  paid  from  time  to  time,  but  the  whole  purchase- 
money  was  to  be  paid,  and  was  paid.     The  bankrupt  could  not  have 
built  for  these  parties  another  ship  answering  the  description,  but  was 
bound  to  deliver  that  identical  ship.     In  Woods  v.  Russell,  it  is  true, 
there  was  the  usual  certificate  of  the  builder  that  the  ship  was  regis- 
tered, which,  in  Clarke  v.  Spence,  was  thought  to  have  influenced  the 

1  1  Taunt.  318.  2  5  B.  &  Aid.  942. 

3  4  Ad.  &  Ell.  467,  6  Nev.  &  Man.  399. 


668  LAIDLER    V.    BURLINSON.  [CHAP.  H. 

decision  of  the  court.  But  the  judgment  does  not  proceed  merely  on 
that  ground,  but  also  on  the  ground  that  the  property  vested  by  the 
payment  of  instalments  in  respect  of  an  existing  chattel,  Abbott, 
C.  J.,  says :  "  But  this  case  does  not  depend  merely  upon  the  payment 
of  the  instalments ;  so  that  we  are  not  called  upon  to  decide  how  far 
that  payment  vests  the  property  in  the  defendant,  because  here  Paton 
(the  builder)  signed  the  certificate  to  enable  the  defendant  to  have  the 
ship  registered  in  his,  the  defendant's,  name,  and  by  that  act  consented, 
as  it  seems  to  us,  that  the  general  property  in  the  ship  should  be  consid- 
ered from  that  time  as  being  in  the  defendant."  "  In  order  to  register 
the  ship  in  the  defendant's  name,  an  oath  would  be  requisite  that  the 
defendant  was  the  owner,  and  when  Paton  concurred  in  what  he  knew 
was  to  lead  to  that  oath,  must  he  not  be  taken  to  have  consented  that 
the  ownership  should  really  be  as  that  oath  described  it  to  be  ?  "  That 
fact  is  not  used  as  evidencing  an  actual  delivery  of  the  ship,  but  as 
shewing  an  acknowledgment  by  the  bankrupt  that  the  property  was 
gone  from  him,  and  his  consent  that  it  should  vest  in  the  purchaser. 
Here  the  agreeement  shews  the  same  kind  of  acknowledgment  —  it  is 
a  testification  of  his  consent  that  the  property  had  passed  out  of  him. 
In  Clarke  v.  Spence,  the  only  doubt  that  existed  was,  whether  the  gen- 
eral words  of  Lord  Tenterden  ought  not  to  be  qualified,  and  they  were 
qualified  accordingly ;  but  the  general  decision  in  that  case  would  still 
be  in  favor  of  the  present  plaintiff.  [Lord  Abinger,  C.  B.  In  Clarke 
V.  Spence,  it  was  part  of  the  contract  that  the  ship  was  to  be  built  un- 
der the  superintendence  of  an  agent  of  the  purchaser.]  There  was  no 
stipulation  to  that  effect  here,  but  in  fact  it  was  superintended  by  Har- 
ris, the  agent  of  the  Tees  Coal  Company.  The  case  is  in  this  respect 
certainly  not  so  strong  as  Clarke  v.  Spence,  but  stronger  than  Woods 
V.  Russell.  Harris  must  be  considered  as  superintendent  for  the  pur- 
chasers generally.  Secondly,  it  is  said  that  this  action  will  not  lie, 
because  it  is  an  action  by  one  tenant  in  common  against  another ;  but 
the  defendant  is  not  entitled  to  that  defence  upon  this  record,  since  he 
cannot  shew,  under  the  plea  of  not  guilty,  that  he  was  justified,  as 
tenant  in  common  with  the  plaintiff,  in  committing  the  conversion  in 
fact.  Stancliffe  v.  Hardwick.^  It  was  there  expressly  held,  that  if  the 
defendant  has  made  a  conversion  in  fact  of  the  chattel  (as  by  a  sale), 
which  he  jDroposes  to  justify  by  his  joint  control  over  it,  he  must  plead 
in  confession  and  avoidance,  inasmuch  as  the  plea  of  not  guilty  puts  in 
issue  the  fact  of  the  conversion  only,  and  not  the  tortious  nature  of 
it.2 

W.  H.  Watson,  contra.  First,  no  property  passed  by  this  agreement. 
The  contract  is,  in  the  first  part,  rather  a  soi't  of  prospectus  of  the  ship, 
and  of  the  mode  in  which  she  is  ultimately  to  be  completed.     It  is 

1  2  C.  M.  &  R.  1.  2  See  also  Vernon  v.  Shipton,  2  M.  &  W.  9. 


SECT.  II.]  LAIDLER   V.    BURLINSON.  669 

headed  "  Particulars  of  build  and  description  of  a  new  ship  now  about 
one-third  built."     It  does  not  purport  to  be  a  sale  of  a  third  part,  as 
the  hull  of  a  vessel.     The  instrument  goes  on  to  describe  the  timber, 
anchors,  &c.,  to  be  used  and  applied  in  the  building  of  it  "  for  the  sum 
of  £1750."     As  far  as  that  goes,  it  is  a  mere  offer  to  sell  a  complete 
ship  for  so  much.     [Parke,  B.     It  appears  to  be  a  sort  of  what  the 
civilians  called  ohligatio  certi  corporis^  which  you  say  does  not  pass  the 
property.     The  builder  might  be  guilty  of  a  breach  of  contract  if  he 
did  not  finish  that  ship ;  but  the  question  is,  if  he  finished  it,  and  sold 
it  to  another,  would  trover  lie  ?]     The  terms  of  acceptance  are  these  : 
"  We,  the  undersigned,  hereby  agree  to  take  shares  in  the  before-men- 
tioned vessel,  as  set  opposite  to  our  respective  names,  and  also  the  mode 
of  payment."     That  is,  not  we  agree  then  to  buy,  but  to  take  shares  in 
the  vessel  when  complete.     The  parties  sign  at  different  periods.     It  is 
not  like  the  case  of  one  single  party  agreeing  that  a  vessel  is  to  be  built 
for  him,  and  to  be  under  his  superintendence.     And  there  was  in  fact 
no  superintendence  ;  Harris  merely  went  there  like  a  person  going  to  a 
coach-maker  to  see  how  his  carriage,  which  he  has  ordered,  is  going  on 
building.   Where  the  specific  article  is  ready  for  delivery,  and  the  price 
fixed,  the  property  passes ;  but  if  it  is  incomplete,  and  incapable  of  de- 
livery, the  property  does  not  pass  until  the  article  is  completed,  and 
there  is  an  assent  on  the  part  of  the  purchaser  that  it  is  conformable  to 
the  contract.    It  is  expressly  so  laid  down  in  Clarke  v.  Spence.    [Lord 
Abixger,  C.  B.    Is  assent  or  dissent  material?    May  not  the  purchaser 
renounce  it  if  it  is  not  according  to  the  contract,  though  the  property 
may  have  passed  ?]     No :  he  would  be  bound  to  take  to  it  if  the  prop- 
erty had  passed,  and  must  bring  his  action  for  the  injury  done  him  by 
the  breach  of  the  contract.     If  the  property  has  passed,  there  is  no 
power  of  rejection.    [Parke,  B.    If  the  parties  only  agreed  to  buy  that 
particular  ship  when  complete,  the  property  would  not  pass,  though  the 
builder  could  not  comply  Avith  the  contract  by  delivering  another  ship.] 
In  Clarke  -o.  Spence  there  was  no  power  of  rejection.   The  judges  there 
begin  by  laying  down  certain  known  principles  of  law :  ^  "  That,  in  gen- 
eral, under  a  contract  for  the  building  a  vessel,  or  making  any  other 
thing  not  existing  in  specie  at  the  time  of  the  contract,  no  property 
vests  in  the  party  whom,  for  distinction,  we  Avill  call  the  purchaser, 
during  the  progress  of  the  work,  nor  until  the  vessel  or  thing  is  finished 
and  delivered,  or  at  least  ready  for  delivery,  and  approved  by  the  pur- 
chaser ;  and  that,  even  w^hen  the  contract  contains  a  specification  of  the 
dimensions  and  other  particulars  of  the  vessel  or  thing,  and  fixes  the 
precise  mode  and  time  of  payment  by  months  and  days."     [Alder- 
sox,  B.    There  the  payments  Avere  according  to  the  corresponding  por- 
tions of  the  work  done,  and  it  was  a  sale  of  each  specific  portion  as 

1  4  Ad.  &  Ell.  466.  • 


670  LAIDLER   V.    BURLTNSON.  [CHAP.  II. 

completed.]     Woods  v.  Russell  has  no  application  to  the  present  case ; 
it  was  decided  on  the  ground  of  there  being  a  certificate  of  registry. 
In  Goode  v.  Langley,^  A.  agreed  with  B.  to  make  a  gig  for  a  given 
price.     The  body  of  the  gig  and  wheels  were  selected  by  B.,  and  A. 
promised  to  deliver  it  in  a  few  days.     The  full  price  was  paid.     Before 
it  was  finished  it  was  seized  by  the  sheriff  under  a  Ji.  fa.  against  A. 
'The  gig  was  afterwards  finished  and  delivered  to  B.,  with  the  assent  of 
the  judgment  creditor ;  the  sheriff  subsequently  retook  it  to  secure  his 
poundage.    It  was  held  that  he  had  no  I'ight  to  do  so,  and  that  B.  might 
maintain  trover  for  the  gig;  but  there  the  court  proceeded  merely  on 
the  ground  that  the  sheriff  had  made  a  second  seizure  of  the  goods, 
and  that  he  could  not  protect  himself  for  seizing  twice.     It  Avas  there 
argued  that  the  right  to  the  price  and  the  vesting  of  the  property  were 
correlative ;  and  the  court  might  easily  have  disposed  of  the  case  by 
saying  that  the  property  had  passed  to  B.  by  a  selection  of  part  of  the 
chattel,  if  they  had  thought  so.      In  Atkinson  v.  Bell,^  A.  having  a 
patent  for  certain  spinning  machinery,  received  an  order  from  B.  to 
have  some  spinning  frames  made  for  him.    A.  employed  C.  to  make  the 
machines  for  B.,  and  informed  the  latter  of  it.    After  the  machines  had 
been  completed,  A.  ordered  them  to  be  altered.    They  were  afterwards 
completed  according  to  this  new  order,  and  packed  up  in  boxes  for  B., 
and  C.  informed  B.  that  they  were  ready,  but  he  refused  to  accept 
them ;  and  it  was  held  that  C.  could  not  recover  the  price  from  B.  in 
an  action  for  goods  bargained  and  sold,  or  for  work,  labour,  and  mate- 
rials.    The  argument  was  there  rested  on  the  ground  that  specific 
articles  were  pointed  out  to  the  purchaser  as  those  with  which  the 
machines  were  to  be  completed.      But  Bayley,  J.,  says  :  "  When  goods 
are  ordered  to  be  made,  while  they  are  in  progress  the  materials  belong 
to  the  maker.     The  property  does  not  vest  in  the  party  who  gave  the 
oi'der  until  the  thing  ordered  is  complete.     And  although  while  the 
goods  are  in  ^^rogress  the  maker   may  intend    them   for   the   person 
ordering,  still  he  may  afterwards  deliver  them  to  another,  and  thereby 
vest  the  property  in  that  other.    Although  the  maker  may  thereby  ren- 
der himself  liable  to  an  action  for  so  doing,  still  a  good  title  is  given  to 
the  party  to  whom  they  are  so  delivered."     So  here,  all  that  appears  is 
an  intention  that  the  ship  in  question  should  be  delivered  when  finished, 
which  intention  might  have  been  altered.     The  property  might  have 
passed  if  the  j^laintiff  had  assented  after  the  ship  was  finished,  but  there 
was  no  such  assent.     Supposing  the  builder  had  died  whilst  it  was  un- 
finished, and  his  executor  had  been  without  assets,  and  unable  to  com- 
plete the  vessel,  if  the  argument  on  the  other  side  is  good  for  any  thing, 
the  purchaser  would  be  entitled  to  the  hull  without  paying  any  part  of 
the  price.     But  there  is  a  greater  difticulty  still.     The  contract  is  by 

1  7  B.  &  Cr.  26.  2  g  B.  &  C.  277,  2  Man.  &  R.  292,  s.  c. 


SECT.  II.]  LAIDLER   V.    BURLINSON.  671 

five  or  six  persons  to  take  shares.  Who  is  to  say  whether  the  sliip  is 
built  according  to  the  contract  ?  The  money  is  to  be  paid  by  the  terms 
of  the  contract,  according  to  the  shares  set  opposite  their  respective 
names.  It  is  obvious  that  payment  and  delivery  would  be  contempora- 
neous. The  entire  contract  is  in  the  hands  of  the  builder.  The  times 
and  mode  of  payment  will  not  alter  it ;  Avhoncver  the  money  was  to  be 
paid,  the  contract  only  is  to  be  looked  to  for  the  intention  of  the  parties. 
[Lord  Ahingee,  C.  B.     It  all  turns  on  the  contract.] 

Temple,  in  reply.     It  is  said  that  this  is  not  a  contract  for  an  imme- 
diate purchase  of  the  ship  in  its  then  state,  but  when  completed.     The 
words  are,  "We  hereby  engage  to  take  shares  in  the  before-mentioned 
vessel ;  "  it  is  said  that  that  means  "  vessel  when  completed  ; "  but  sup- 
pose the  words  had  been,  "  We  hereby  engage  to  buy  shares ; "  that 
would  certainly  have  shewn  a  present  intention,  and  the  words  used 
are  in  substance  the  same.    The  contract  does  not  say  "  when  finished." 
If  actual  payment  is  important  to  sheAV  a  purchase  at  the  time  of  a 
specific  chattel,  according  to  Woods  v.  Russell  and  Clarke  v.  Spence, 
here  there  has  been  an  appropriation  by  payment.     [Pakke,  B.     No : 
the  agreement  itself  was  evidence  in  those  cases  of  the  intention  of 
the  parties  that  the  property  should  pass  at  the  time.    This  case  would 
have  been  like  Woods  v.  Russell,  if  the  agreement  had  been  to  pay  so 
much  down,  and  so  much  when  finished.]     The  contract  vests  a  prop- 
erty at  the  time  of  signing.    It  makes  no  diiference  that  the  purchasers 
sign  at  different  times,  as  the  vendor  signs  only  once.     [Aldeeson,  B. 
The  contracts  for  shares  were  signed  at  different  times ;  w^hat  specific 
portion  of  the  congeries  of  planks  does  each  buy  ?]     It  was  the  piu*- 
chase  of  a  ship  which  was  described  to  be  in  a  certain  condition  on  the 
10th  of  June,  1833;  and  it  continues  to  exist  six  months  afterAvards, 
although  more  Avork  was  then  done  to  it.     The  vendor  signs  only  once 
at  that  date ;  it  is  not  a  contract  signed  by  him  at  different  times  for 
the  sale  of  a  different  article.     The  signature  of  the  bankrupt  at  the 
time  is  evidence  of  an  intention  to  vest  the  property  in  the  purchasers, 
and  that  it  was  to  take  eftect  Avhen  signed.     If  the  purchasers  had  not 
been  bound,  they  would  not  have  paid  the  money  afterwards.     The 
payment  shews  that  the  contract  was  not  to  have  effect  afterwards,  but 
%7i  p7'cese)itL 

Lord  Abinger,  C.  B.  There  is  no  occasion  to  qualify  the  doctrine 
laid  down  in  Woods  v.  Russell  or  Clarke  v.  Spence.  I  consider  the 
principle  which  those  cases  establish  to  be,  that  a  man  may  purchase  a 
ship  as  it  is  in  progress  of  building;  and  by  the  terms  employed  there, 
the  contract  was  of  that  character ;  a  superintendent  was  appointed, 
and  money  paid  at  particular  stages.  The  court  held  that  that  was 
evidence  of  an  intention  to  become  the  purchaser  of  the  particular  ship, 
and  that  the  payment  of  the  first  instalment  vested  the  property  in  the 
purchasers.    Suppose  the  builder  had  died  after  the  first  instalment  was 


672  LAIDLER   V.    BURLINSON.  [CHAP.  II. 

paid,  the  ship  in  its  then  state  would  have  become  the  property  of  the 
purchaser,  and  not  of  the  executors.  A  party  may  agree  to  pui'chase 
a  ship  when  finished  or  as  she  then  stands.  Of  which  sort  is  this  con- 
tract ?  Did  it  pass  the  property  to  the  purchaser  presently,  or  was  it 
to  pass  when  the  shij)  was  finished  ?  I  think  it  is  of  the  latter  descrip- 
tion. There  would  have  been  a  specific  sum  appropriated,  if  a  sale  in 
the  present  state  had  been  intended.  The  contract  is  also  for  goods  to 
be  supplied,  cables,  &c.,  when  she  was  finished.  If  the  seller  became 
bankrupt,  or  died,  what  sum  could  be  recovered  ?  No  price  is  appro- 
priated by  the  parties.  It  is  not  till  she  is  finished  and  delivered  that 
the  sale  takes  effect. 

Paeke,  B.     I  concur  in  the  view  which  has  been  taken  by  the  Lord 
Chief  Baron.     The  whole  case  resolves  itself  into  a  construction  of  the 
contract.     Was  it  a  present  bargain  and  sale  of  the  materials  of  the 
ship  lying  there  ?     If  a  man  bargain  for  a  specific  chattel,  though  it  is 
not  delivered,  the  property  passes,  and  an  action  lies  for  the  non-deliv- 
ery, or  of  trover.     Langfort  v.  Tiler.^     But  it  is  equally  clear  that  a 
chattel  which  is  to  be  delivered  infuturo  does  not  pass  by  the  contract. 
Two  questions  arise :  First,  is  this  an  article  which  would  corresjiond 
with  the  terms  of  the  contract?   Secondly,  is  it  a  contract  for  an  article 
to  be  finished  ?     In  the  latter  case,  the  article  must  be  finished  before 
the  property  vests.    In  the  first,  an  action  would  lie  at  once  for  the  non- 
delivery.    The  contract  describes  all  the  several  particulars  to  be  sup- 
plied, and  then  it  concludes,  "  We,  the  undersigned,  agree  to  take  shares 
in  the  before-mentioned  vessel."     The  plaintiff"  is  a  purchaser  of  one- 
fourth.     It  is  clear  that  he  was  not  to  pay  for  the  materials  as  then 
existing;  and  also  that  many  other  parties,  according  to  the  stipula- 
tions, were  to  have  an  interest  in  the  ship  when  finished.     It  is  most 
like  the  case  of  Mucklow  v.  Mangles.-    There  is  no  sum  here  which  can 
be  said  to  be  the  price  of  the  chattel  in  its  then  state.     In  Woods  u. 
Russell  there  were  three  ingredients,  on  which  the  judgment  of  the 
court  was  founded.    First,  a  sum  was  paid,  which  appropriated  the  work 
as  then  finished ;  secondly,  a  superintendent  was  employed  ;  thirdly, 
there  was  the  certificate  of  registry.     In  Clarke  v.  Spence  two  of  these 
circumstances  concurred.     The  payment  by  instalments  was  evidence 
of  appropriation  of  the  work  as  the  instalments  were  paid.     But  here 
there  is  no  sum  which  can  by  any  possibility  be  considered  as  the  price 
of  the  materials  then  put  together.     It  was  an  entire  contract  to  pur- 
chase the  ship  when  finished,  and  no  property  passed  till  then. 

BoLLAND,  B.  In  Woods  v.  Russell  and  Clarke  u.  Spence,  the  con- 
tract was  made  for  a  specific  thing  in  existence;  here  it  is  treated 
throughout  as  executory. 

Alderson,  B.     To  vest  the  property,  the  identical  goods  must  be 

1  1  Salkeld,  113;  Sheppard's  Touchstone,  224,  225.  2  i  Taunt.  318. 


SECT.  II.]  SWANWICK    V.    SOTHERN.  673 

sold  and  the  price  fixed.  What  were  the  specific  goods  here?  If  one- 
third  of  the  ship  was  sold,  it  would  vest ;  but  if  it  was  to  be  the  ship 
when  complete,  that  was  not  ascertained  at  the  time,  and  did  not  pass. 
In  Woods  V.  Russell,  the  contract  was  for  the  sale  of  specific  parts  of 
the  ship,  to  be  paid  for  successively  at  particular  stages  of  it ;  and  it 
was  held,  that  it  vested  the  property  in  the  ship  so  in  progress.  That 
was  the  construction  of  the  contract ;  and  on  similar  words  in  Clarke 
V.  Spence  the  same  construction  was  jjut  by  the  court. 

y  j,_^    Judgment  for  the  defendant. 

(Ut^-^f^     SWANWICK  AND  Another  v.  SOTHERN  and  Others,  u   ^^^/tl- 

'        ■  Z^ 

I'T^  ^  jj^  ^gg  Queen's  Bench,  February  6,  1839.  /^^  r^^  *i^^/ 

\Reported  in  9  Adolphus  Sf  Ellis,  895.]  ^  "^  7^"^        '^^^ 

Trover  for  1028  bushels  of  oats.     Pleas :  1.  Not  guilty ;  2.  Tlfat    — 
the  oats  were  not  the  property  of  the  plaintifl^s,  in  manner  and  form, '  ^ 

&c.     Issues  thereon.     On  the  trial  before  Patteson,  J.,  at  the  Liverpool  ^*'^^'^'* 
Spring  Assizes,  1837,   the  material  facts  appeared  to  be  as  follows: //^^^' 
The  plaintiiFs  were  corn  dealers  at  Manchester;  the  defendants  carried 
on  the  business  of  wharfingers  at  the  Duke's  Quay,  in  the  same  town. 
The  oats  in  question  being  in  a  warehouse  of  the  defendants  were  sold     . 
by  Turner  &  Co.,  the  owners,  to  John  Marsden,  and  the  following   .  1  ^    ' 
delivery  order  given,  addressed  to  the  Avarehouse-keeper :  — '  \  nJ    n 

Mr.  Wm.  Eaton,  Duke's  Quay.  ^^ 

Deliver  Mr.  John  Marsden   1028  \\  bushels  oats,   bin  40,  O.  W.,  and  you        ^ 
•will  please  weigh  theui  over  and  charge  us  the  expense. 

Joseph  Turner  &  Co. 
Oct.  3d,  1836. 

The  warehouse-keej^er  entered  this  order  in  his  book,  and  on 
October  5th  he  received  the  following  order  from  John  Marsden :  — 

Mr.  Wm.  Eaton,  Duke's  Quay. 

Deliver  Messrs.  Swanwick  &  Hall  1028  ||  bushel  oats,  in  bin  40,  O.  Ware- 
house ;  and  let  them  be  weighed  over  and  send  a  note  up.     I  will  see  it  paid. 

Fr.  &  Jno.  Marsden. 
Manchester,  5th  Oct.,  1836. 

Swanwick  and  Hall,  the  plaintifl^s,  accepted  a  bill  drawn  by  Marsden, 
October  7,  1836,  for  the  value  of  the  oats,  which  was  duly  honoured. 
Eaton  entered  the  order  of  October  5  in  his  book,  and  said  to  the 
party  delivering  it  that  all  would  be  right,  and  he  would  attend  to  the 


674  SWANWICK   V.    SOTHERN.  [CHAP.  II. 

order.  The  oats  were  transferred  to  the  phiintiffs  in  the  defendant's 
books,  but  without  weighing  over.  There  wei-e  no  oats  in  bin  40  bnt 
J^^guaBtilj:  niL'iitioned  in  the  order.  Eaton  stated,  at  the  trial,  that 
from  the  5th  to  the  12th  of  October  the  oats  would  have  been  delivered 
to  the  plaintiffs  if  required.  Marsden  becoming  insolvent,  Turner,  on 
October  12,  gave  the  defendants  notice  not  to  part  with  the  oats ; 
and  on  the  14th  the  defendants  gave  them  up  to  Turner  on  an  indem- 
nity. At  that  time,  and  not  before,  they  were  weighed  over,  and  they 
were  found  to  be  two  bushels  short  of  the  weight  mentioned  in  the 
orders.  It  was  proved  at  the  trial  that  the  defendants  did  not  consider 
themselves  bound  to  weigh,  and  were  not  used  to  wesigh,  till  delivery, 
when_the_^rain  was  w^eighed  to  ascertain  any  loss  of  quantity.  The 
question  was,  whether,  without  weighing,  the  property  was  sufficiently 
transferred  to  vest  in  the  plaintiffs;  or  whether,  on  October  14, 
Turner  still  liad  a  right  to  stop  in  transitu.  Patteson,  J,,  thought 
that,  on  the  above  state  of  facts,  the  plaintiffs  were  entitled  to  recover, 
but  he  gave  leave  to  move  for  a  nonsuit;  and  the  plaintiffs  had  a 
verdict.  In  Easter  term,  1837,  a  rule  nisi  was  obtained  for  a  nonsuit 
or  a  new  trial.     In  Hilary  term,  1839, 

Cresswell  and  Tomlinson  shewed  cause.  No  weighing  was  necessary 
in  this  case  to  vest  a  right  in  the  plaintiffs ;  as  between  them  and  the 
defendants,  at  least,  the  attornment  of  the  defendant's  warehousetnen 
was  of  itself  conclusive.  Stonard  v.  Dunkin,^  Harman  v.  Anderson,'^ 
Lucas  V.  Dorrien,^  Barton  v.  Boddington,*  Gosling  v.  Birnie,^  Holl 
V.  Griffin,*'  which  cases  agree,  in  principle,  with  Dixon  v.  Hamond '' 
and  Hawes  v.  Watson.^  Even  if  this  had  been  a  question  between 
vendor  and  vendee,  it  might  be  contended,  on  the  authority  of 
Whitehouse  v.  Frost,®  that  the  transaction  here  proved  made  the 
sale  and  delivery  complete,  there  being  an  order  for  the  transfer 
of  a  specific  quantity  of  goods,  and  that  order  accepted;  and,  con- 
sequently, that  no  question  as  to  the  right  of  stopping  in  transitu 
could  any  longer  arise.  And,  further,  the  goods  here  were  transferred 
as  a  pledge  for  a  specific  sum  of  money  advanced  by  the  plaintiffs ; 
the  defendants  held  the  oats  in  trust  for  them,  and  no  longer  subject 
to  the  control  of  Turner  &  Co.  Haille  v.  Smith,^°  I'ecognized  in 
Patten  v.  Thompson."  Shepley  v.  Davis  ^^  was  cited  in  moving  for 
the  present  rule.  There,  ten  tons  of  hemp,  in  the  hands  of  a  wharfinger, 
were  sold,  and  an  order  given  directing  him  to  weigh  and  deliver, 
and  the  property  was  held  not  to  pass  before  weighing ;  but  the  ten 
tons  were  part  of  a  larger  mass,  and  weighing  was  necessary  to  ascer- 


1  2  Camp.  344.  2  2  Camp.  243.  3  7  Taunt.  278. 

*  1  Car.  &  P.  207.  5  7  Bing.  339.  6  10  Bing.  246. 

1  2  B.  &  Aid.  310.  8  2  B.  &  C.  540.  9  12  East,  614. 

10  1  Bos.  &  P.  563.  11  5  M.  &  S.  350.  ^'^  5  Taunt.  617. 


SECT.  11.]  SWANWICK   V.    SOTHERN.  675 

tain  what  was  to  be  delivevecl.  And  in  Hanson  v.  Meycr,^  a  similar 
case,  also  cited  in  moving,  it  could  not  be  ascertained  without  weigh- 
ing Avhat  quantity  of  goods  the  purchaser  was  to  receive,  and  for  what 
sum  he  was  to  give  a  bill  according  to  the  contract,  and  therefore 
weighing  was  held  a  condition  precedent  to  the  vesting  of  tlie  jjrop- 
erty.  This  view  of  the  case  Avas  relied  upon  in  Ilawes  v.  Watson,- 
where  both  Hanson  v.  Meyer ^  and  Shepley  v.  Davis'*  were  cited. 
Here  the  purchasers  contracted  for  a  specific  parcel  of  goods,  namely, 
all  the  oats  which  were  lying  in  a  certain  bin,  and  gave  their  acceptance 
for  the  price. 

IVif/htincm  and  IV.  H.  V^atson^  contra.  It  is  not  disputed,  on  the 
defendants'  part,  that  if  there  had  been  a  general  unqualified  delivery 
order,  received  and  accepted  by  their  agent,  even  without  a  transfer 
in  their  books.  Turner  &  Co.  would  have  lost  their  property  in  these 
goods,  and  could  not  have  stopped  them  in  transitu.  But  the  order 
here  was,  "Deliver  to  S.  &  H.  1028  ^f  bushels  of  oats  in  bin  40,  and 
let  them  be  weighed  over  and  send  a  note  up.  I  will  see  it  paid."  It 
does  not  appear  that  the  plaintiffs  were  bound  to  take  them  if  they 
exceeded  or  fell  short  of  the  bulk  contracted  for,  and  weighing  was 
necessary  to  ascertain  whether  they  did  exceed  or  fall  short.  They 
did,  in  fact,  when  weighed  fall  short  of  the  quantity  named.  [Wil- 
liams, J.  Was  not  the  quantity  designated  by  its  forming  the  contents 
of  a  jjarticular  bin  ?  Littledale,  J.  If  they  were  to  take  all  that  that 
bin  contained,  weighing  seems  to  have  been  immaterial.]  The  bargain 
was  for  1028  ^f  bushels.  It  cannot  be  contended  that  the  purchasers 
were  bound  to  take  the  oats,  however  much  they  might  fall  short  of  that 
quantity ;  and,  if  they  might  have  refused  them  for  deficiency,  then 
Aveighing  was  essential  to  the  completion  of  the  sale.  [Pattesox,  J. 
Within  Avhat  time  do  you  say  that  the  weighing  must  have  taken 
place  ?  None  was  specified.  In  Shepley  v.  Davis,*  a  time  was  pointed 
out  within  which  the  goods  must  have  been  weighed  and  delivered.] 
Here  either  party  might,  at  any  time,  have  required  that  the  oats 
should  be  Aveighed.  The  case  falls  within  the  princii)le  of  Hanson  v. 
Meyer,^  Busk  v.  Davis,^  Shepley  v.  Davis,''  and  Withers  v.  Lyss.®  Some- 
thinof  remained  to  be  done  betAveen  the  vendor  and  vendee  to  ascertain 
what  Avas  to  be  delivered ;  and  therefore  there  had  been  no  complete 
transfer.  If  Turner  is  divested  of  his  property  in  the  oats,  it  ought  to 
be  in  his  power  to  sue  Marsden  on  the  contract  between  them ;  but 
the  facts  Avould  not  support  an  action  by  Turner  against  Marsden. 

Our.  adv.  vuU. 

Lord  Denmak,  C.  J.,  now  delivered  the  judgment  of  the  court. 

1  6  East,  614.  2  2  B.  &  C.  540. 

3  6  East,  614.  *  5  Taunt.  617. 

5  Cited  ill  Shepley  v.  Davis,  5  Taunt.  622,  note  (a) ;  s.  c.  2  M.  &  S.  397. 

6  4  Camp.  237. 


676  ACRAMAN  V.   MORRICE.  [CHAP.  II. 

The  question  in  this  case  turns  upon  the  construction  of  two  delivery- 
orders.  [His  lordship  then  read  the  orders  set  out,  p.  673,  ante.'] 
The  oats  were  all  that  were  in  bin  40.  They  were  transferred  to  the 
plaintiffs  in  the  defendants'  books,  but  never  weighed  over.  The  plain- 
tiffs had  accepted  a  bill  for  the  price  which  they  duly  honored.  On 
Marsden's  failure,  Messieurs  Turner  sought  to  stop  them  ;  and  the  only 
question  is,  whether  weighing  over  was  in  this  case  necessary,  in  order 
to  vest  the  property  in  the  plaintiffs  and  defeat  the  stoppage  in  tran- 
situ.    Neither  of  the  contracts  of  sale  was  given  in  evidence. 

The  cases  on  this  subject  establish  the  principle  that  wherever  any 
thing  remains  to  be  done  by  the  seller  which  is  essential  to  the  com- 
pletion of  the  contract,  a  symbolical  delivery  by  transfer  in  the  wharfin- 
ger's books  will  not  defeat  the  right  of  stoppage  in  tra^isitu  as  between 
buyer  and  seller.  Hanson  v.  Meyer,^  Shepley  v.  Davis,^  Busk  v.  Davis  ^ 
abundantly  shew  this.  Therefore,  if  part  of  a  bulk  be  sold,  so  that 
weighing  or  separation  is  necessary  to  detennine  the  identity  or  indi- 
viduality (as  Lord  Ellenborough  expresses  it  in  Busk  v.  Davis  ^)  of  the 
article,  or  if  the  whole  of  a  commodity  be  sold,  but  weighing  is  neces- 
sary to  ascertain  the  price,  because  the  quantity  is  unknown,  the 
weighing  or  measuring  must  precede  the  delivery,  and  the  symbolical 
delivery  without  such  weighing  will  not  be  sufficient. 

But  where  the  identity  of  the  goods  and  the  quantity  are  known,  the 
weighing  can  only  be  for  the  satisfaction  of  the  buyer,  as  was  held  in 
Hammond  v.  Anderson ;  *  and  in  such  case  the  transfer  in  the  book 
of  the  wharfinger  is  sufficient.  We  are  of  opinion  that  the  present 
case  is  of  the  latter  description,  and  that  this  property  passed  as  be- 
tween buyer  and  seller.  We  have  therefore  no  occasion  to  resort  to 
the  doctrine  of  estoppel,  which  is  strongly  enforced  in  Hawes  v. 
Watson  ;  ^  but  we  do  not  mean,  in  so  saying,  to  cast  any  doubt  upon 
the  authority  of  that  case.  Under  these  circumstances  the  rule  for  a 
nonsuit  must  be  discharged.  H'^le  discharged. 

r\  

ACRAMAN  AifD  Others,  Assignees  of  Thomas   Swift  v. 

MORRICE. 

In  The  Common  Pleas,  November  22,  1849. 

{Reported  in  19  Law  Journal  Reports,  Common  Pleas,  57.] 

Trover  by  the  assignees  of  Thomas  Swift,  a  bankrupt,  for  the  con- 
version of  1000  pieces  of  oak  timber. 

1  6  East,  614.  2  5  Taunt.  617.  3  2  M.  &  S.  397. 

4  1  New  Kep.  69.  5  2  B,  &  C  640. 


•>\ 


SECT.  II,]  ACRAMAN    V.    MORRICE.  677 

Pleas,  first,  not  cruilty;  second,  not  possesserl. 

At  the  trial  before  Coleridge,  J.,  at  the  Bristol  Summer  Assizes  in 
1848,  the  following  facts  were  given  in  evidence  :  It  appeared  that 
Swift,  the  bankrupt,  was  an  extensive  timber  merchant  in  Wales,  and 
that  the  defendant,  Avho  was  a  contractor  for  the  supply  of  timber  for 
the  royal  navy,  had  been  in  the  habit  of  dealing  with  him  for  some 
years.  The  contracts  were  sometimes  in  writing  and  sometimes  oral. 
The  course  of  business  between  the  parties  was  this  :  After  Swift  had  "1 
felled  the  trees  which  he  wished  to  dispose  of,  the  defendant's  agent  { 
selected  those  which  were  fit  for  the  defendant's  pui-pose,  and  marked 
out  certain  poitions  of  the  trunks  as  the  subjects  of  the  purchase. 
After  this  was  done,  it  was  the  duty  of  Swift  to  lop  and  top  the  trees, 
cut  off  the  sidings  and  square  the  trunks,  and  then  at  his  own  expense 
convey  the  trunks,  which  had  been  marked  out,  to  the  defendant's 
wharf  at  Chepstow,  and  deliver  them  there.  In  the  beginning  of  the 
year  1848,  the  defendant's  agent  had  selected  and  marked  out  a  num- 
ber of  trees  felled  by  Swift,  being  the  subject  of  a  contract  entered 
into  between  him  and  the  defendant,  which  was  not  reduced  to  Avrit- 
ing  so  as  to  satisfy  the  Statute  of  Frauds.^  On  the  15th  of  April,  1849, 
a  fiat  in  bankruptcy  was  issued  against  Swift;  and  at  that  time  twenty- 
five  of  the  trees  which  had  been  selected  and  marked  had  been 
removed  by  him  to  a  wharf  of  his  at  Iladnock,  for  the  purpose  of  trans- 
mission, but  had  not  yet  been  topped,  lopped,  or^  sided,  the  marked 
parts  remaining  unsevered  from  the  bodies  of  the  trees.  In  the  month 
of  May,  the  messenger  of  the  Court  of  Bankruptcy  took  possession  of 
the  unsevered  timber,  and  a  few  days  afterwards  the  defendant's  agent 
sent  men  to  Hadnock  who  severed  the  trees,  and  carried  away  the  por- 
tions which  had  been  marked  out.  For  these  pieces  of  timber  the 
assignees  of  the  bankrupt  brought  the  present  action. 

The  questions  raised  at  the  trial  were  whetlier  the  case  was  within, 
the  Statute  of  Frauds,  and  Avhether,  by  the  selecting  and  marking  of 
the  timber  by  the  defendant's  agent,  there  had  been  a  sufficient  deliv- 
ery and  acceptance  of  the  goods  to  satisfy  the  statute,  and  vest  the 
property  in  the  defendant.  The  learned  judge  expressed  his  opinion 
that  the  i)laintiffs  were  entitled  to  the  verdict,  and  the  jury  accord- 
ingly found  for  the  plaintiffs,  with  95/.  damages  ;  leave  being  reserved 
to  the  defendant  to  move  to  enter  a  verdict  for  him,  if  the  court 
should  be  of  opinion  that  under  the  circumstances  of  the  case  he  was 
entitled  to  it. 

A  rule  nisi  having  been  obtained  accordingly,  — 

Hutt,  luiu/lake,  Serjt.,  and  Montague  Smith  now  shewed  cause.  It 
is  submitted  tliat  according  to  the  facts  of  this  case  as  they  stood  at 
the  time  of  Swift's  bankruptcy,  the  property  in  the  timber  remained  in 

1  According  to  the  report  in  8  C.  B.  449,  the  timber  had  been  paid  for  by  the 
defendant.  —  Ed. 

VOL.  I.  44 


678  ACRAMAN   V.   MORRICE.  [CHAP.  II. 

him,  and  had  not  passed  to  the  defendant.     The  transaction  in  ques- 
tion amounted  to  a  sale  of  certain  parts  of  the  trees  only.     It  is  neces- 
sary in  order  to  change  the  property  in  goods  sold,  not  only  that  the 
specific  goods  should  have  been  ascertained,  but  also  that  they  should 
be  in  a  condition  in  Avhich  they  are  ready  for  delivery.     [Wilde,  C.  J. 
The  case  is  similar  to  that  of  Rugg  v.  Minett,^  which  was  decided  on 
the  principle,  that  when  any  thing  remains  to  be  done  by  the  seller  of 
goods  before  delivery  to  the  purchaser,  the  property  does  not  pass.] 
In  that  case  the  purchaser  bought  turpentine  in  casks  at  so  much  per 
cwt.,  and  all  the  casks  except  two  were  to  be  filled  up  by  the  seller 
from  those  two,  and  it  was  held  that  the  property  in  those  casks  which 
were  filled  up  passed  to  the  purchaser,  but  not  in  those  which  had  not 
been  filled  up.     [Maule,  J.      Siippose  a  .person  bought  a  particiilar 
piece  of  cloth  which  he  marked  to  be  cut  out  from  a  large  piece,  the 
property  would  not  pass  till  the  piece  wns  cut  oiit^    That  case  seems 
to  differ  from  a  purchase  of  a' quantity  of  a  liquid,  Tay'TDO^  gallons. 
There  perhaps  any  500  gallons  would  do.]     In  the  case  of  Bill  v. 
"Bament,2  ^]jg  defendant  purchased  goods  of  the  plaintiff's  agent.     The 
goods  arrived  at  the  agent's  warehouse,  and  by  the  orders  of  the  de- 
fendant the  mark  on  them  was  changed.     It  was  held  that  there  was, 
no  delivery,  and  therefore  no  acceptance  to  satisfy  the   Statute  of 
Frauds.     [Wilde,  C.  J.     There  was  a  strong  case  in  tbis  court  about 
a  wagon,  Maberley  v.  Sheppard.^     There  the  defendant  employed  the 
plaintiff  to  build  a  wagon,  and,  while  it  was  in  the  plaintiff's  yard,  sent 
a  third  person  to  fix  some  iron  Avork  on  it ;  and  it  was  held  that  this 
did  not  constitute  an  acceptance  under  the  statute.]     In  Simmons  v. 
Swift,^  there  was  a  purchase  of  a  stack  of  bark  at  a  certain  price  per 
ton.     Part  of  it  was  weighed  and  delivered ;  but  it  was  held  that  the 
property  in  the  rest  did  not  pass,  because  the  amount  had  not  been 
ascertained  by  weighing.     In  Laidler  v.  Burlinson,^  it  was  held  that 
by  an  agreement  for  a  share  of  a  ship  then  in  the  process  of  building, 
the  property  did  not  pass,  although  the  purchaser  interfered  with  the 
building,  because  the  subject  of  purchase  contemplated  by  the  contract 
was  the  ship  when  built,  and  not  the  mater' als  of  it  as  they  existed  at 
the  time  when  the  contract  was  entered  into.     In  the  argument  in 
Rugg  V.  Minett,  the  case  was  put  of  a  horse  sold,  and  agreed  to  be 
delivered  by  the  vendor  after  he  was  shod,  and  it  was  argued  that  if 
the  horse  died  the  loss  would  fall  on  the  vendor.     [Maule,  J.     Sup- 
pose we  call  the  wood  in  the  present  case  when  severed,  by  the  name 
of  beams,  then  this  is  a  contract  for  beams  to  be  made  out  of  certain 

1  11  East,  210. 

2  9  Mee.  &  W.  36 ;  s.  c.  11  Law  J.  Kep.  (n.  s.)  Exch.  81. 

3  10  Bing.  99  ;  s.  c.  2  Law  J.  Rep.  (n.  s.)  C.  P.  181. 

4  5  B.  &  C.  857 ;  s.  c.  5  Law  J.  Kep.  K.  B.  10. 

6  2  Mee.  &  W.  602;  s.  c.  6  Law  J.  Rep.  (n.  s.)  Exch.  160. 


SECT.  II.]  ACRAMAN    V.    MORRICE.  679 

specified  trunks,  and  the  purchaser  might  have  his  action  for  a  breach 
of  the  contract,  but  the  property  wouhl  not  ])ass  by  the  selection  of 
the  trunks.]  The  contract  was  executory  till  the  severance.  The 
cases  which  shew  that  the  ascertaining  of  goods,  the  subject  of  a  sale, 
where  something  remains  to  be  done  to  them,  is  not  sufficient  under 
the  Statute  of  Frauds  without  acceptance,  receipt,  and  assent,  are  col- 
lected in  Baldey  v.  Parker  ^  and  Maberley  v.  Sheppard. 

Cockburn  (Harstoic  was  with  him),  in  support  of  the  rule.  The 
general  proposition  of  law  wluch  establishes  that  the  property  in  goods 
sold  does  not  pass  "  when  something  remains  to  be  done "  is  not  de- 
nied. But  what  is  the  true  meaning  of  those  words?  They  must 
mean  when  something  remains  to  be  done  necessary  for  the  purpose  of 
appropriation.  The  ])rescnt  case  is  like  that  of  a  purchase  of  twenty 
sheep  not  selected  from  a  flock,  where  the  vendor  afterwards  selected 
twenty,  and  the  purchaser  assented  and  put  his  mark  on  them,  and 
the  vendor  agreed  to  send  them  home.  [Wilde,  C.  J.  This  is  more 
like  a  case  where  the  vendor  agrees  to  shear  the  sheep.]  It  is  submit- 
ted that,  if  in  such  a  case  he  did  not  shear,  the  purchaser  might  do  so 
and  leave  the  avooI.  [Maule,  J.  There  Avere  portions  of  these  trees 
not  sold.  You  say,  that  immediately  on  the  sale  the  marked  parts 
became  the  chattels  of  the  defendant.  Is  there  such  a  thing  as  a 
tenancy  of  a  specific  g^uantityw  an  undivided  chayMteljJ  Kone  of  the 
cases  cited  correspond  exactly  with  the  j^resent.  [Maule,  J.  There 
is  a  case  of  Hanson  v.  Meyer,-  which  is  in  point.  There  the  vendee 
purchased  all  the  vendor's  starch  at  the  Avarehouse  of  X.  at  so  much 
per  cwt.,  and  got  an  order  from  the  vendor  to  the  Avarehouseman  to 
AA'eigh  and  deliA^er  all  the  starch.  Part  was  weighed  and  deli\-ered  ; 
and  on  the  bankruptcy  of  the  vendee,  the  vendor  was  held  entitled  to 
retain  the  remainder,  because  there  Avas  no  delivery  or  acceptance  of 
it  till  it  Avas  Aveighed.  Tlie  present  case  seems  like  one  of  a  contract 
for  the  purchase  of  flour  to  be  made  out  of  certain  Avheat,  Avhere, 
according  to  the  present  argument,  the  property  in  the  interior  part  of 
each  grain  would  pass  to  the  purchaser.]  Here  the  siDecific  thing  con- 
tracted for  exists,  Avhich  AA'ould  not  be  the  case  Avith  the  flour. 
[Maule,  J.  It  is  clear  that  the  assignees  may  maintain  trover  for  the 
tops  of  the  trees.  My  only  difliculty  is  Avhether  several  people  may 
have  property  in  different  parts  of  the  same  chattel.] 

Wilde,  C.  J.  The  defendant's  counsel  has  not  succeeded  in  rais- 
ing any  doubt  in  my  mind  with  regard  to  this  case.  It  seems  to  me, 
indeed,  that  the  case  is  free  from  difficulty.  On  the  purchase  of  goods, 
when  anv  thing  remains  to  be  done  before  deliverv,  the  Acndor  has  a 
right  to  retain  possession  if  the  vendee  becomes  bankrupt.  In  the 
present  case  several  things  remained  to  be  done.     The  buyer  having 

1  2  B.  &  C.  37 ;  s.  c.  1  Law  J.  Rep.  K.  B.  229.  2  g  East,  614. 


680  ACRAMAN   V.    MORRICE.  [CHAP.  II. 

selectefl  the  parts  which  he  wished  to  purchase,  it  became  the  duty  of 
the  seller  to  sever  those  parts,  and  having  done  so,  to  convey  them  to 
Chepstow,  and  there  to  deliver  them  at  the  defendant's  whai-f.  Now, 
that  which  the  buyer  did  in  order  to  enable  the  seller  to  perform  his 
part  of  the  contract,  cannot  be  considered  as  an  acceptance  of  the  tim- 
ber. It  was  done  for  a  totally  different  purpose  than  that  of  accepting 
the  goods.  Delivery  means  not  only  delivery,  but  acceptance  ;  and, 
therefore,  there  was  no  delivery  in  this  case.  The  defendant  agreed  to 
accept  the  timber  Avhen  severed  and  delivered  at  Chepstow.  The 
seller  had  yet  to  incur  the  expense  of  sawing  the  timber  and  conveying 
it  to  the  defendant's  wharf  The  vendor  becomes  bankrupt,  and  the 
defendant  unfairly  wishes  to  get  hold  of  the  trees,  and  does  that  which 
he  had  no  right  to  do.  I  think,  for  these  reasons,  that  the  property  in 
the  timber  did  not  pass  to  the  defendant,  and  that  he  was  guilty  of  a 
trespass  and  conversion  ;  and  that,  therefore,  the  verdict  was  right,  and 
ought  not  to  be  disturbed. 

Maule,  J.  I  am  of  the  same  opinion.  The  trees  vested  in  the 
assignees,  unless  there  was  a  change  of  possession  by  what  had  been 
done  by  the  vendee.  The  way  in  which  the  defendant  seeks  to  shew 
that  the  plaintiff  was  out  of  possession,  and  that  he  was  in  possession, 
is  this :  He  sets  up  a  contract  for  certain  portions  of  the  trees,  which, 
were  to  be  severed  by  the  bankrupt,  and  conveyed  at  his  expense  to 
the  defendant's  wharf.  The  right  of  the  defendant  is  the  creature  of 
that  contract.  His  right,  under  the  contract,  was  to  insist  that  par- 
ticular trees  should  be  dealt  with  in  a  particular  manner,  and  that  the 
portions  selected  should  be  delivered  to  him.  Subject  to  that  con- 
tract, the  interest  of  the  bankrupt  passed  to  his  assignees,  and  they 
had  the  right  to  keep  the  trees  subject  to  the  defendant's  claim.  The 
defendant  could  not  have  insisted  on  taking  away  the  trees  before 
the  bankruptcy,  because  the  contract  did  not  give  him  a  right  to 
present  possession. 

Williams,  J.  I  am  entirely  of  the  same  opinion.  If  the  Statute  of 
Frauds  had  never  passed,  or  this  property  had  been  of  a  price  under 
10^.,  the  rights  of  the  parties  would  have  been  the  same. 

Talfourd,  J.,  concurred. 


SECT.  II.]  LOGAN   V.    LE  MESURIER.  681 


^ 


JAMES  LOGAN  and  TIART  LOGAN,  Appellants,  and  WILLIAM 
LE  MESURIER,  IIAVILAND  LE  MESURIER,  ROUTH,  and 
WILLIAM  HENRY  TILSTON,  Respondents} 

In  the  Privy  Council,  December  6,  7,  &  13, 1847. 

On  Appeal  from  the  Provincial  Court  of  Appeals  for  the  Province  of 

Lower  Canada. 

[Reported  in  6  Moore's  Privy  Council  Cases,  116.] 

This  was  an  action  brought  in  the  Court  of  King's  Bench  at  Mon- 
treal, in  which  the  present  respondents  sought  to  i*ecover  the  sum  of 
£1,979  3s.  4c?.,  which  had  been  paid  by  them  to  the  appellants  as  the 
price  of  a  raft  of  red  pine  timber,  sold  by  the  appellants  to  the  respon- 
dents by  a  Avritten  contract  dated  3d  December,  1834,  and  which  raft 
of  timber  was  wrecked  and  dispersed  at  Quebec,  on  the  20th  June, 
1835.  The  respondents  also  claiined  by  the  action  damages  for  the 
non-delivery  of  the  timber. 

The  contract  was  as  follows :  "  Hart  Logan  &  Co.  of  Montreal,  sell, 
and  Le  Mesurier,  Routh  &  Co.  of  the  same  place,  buy,  a  quantity 
of  red  pine  timber,  the  property  of  Thomas  Durrell  of  Hull,  L.  C, 
but  under  control  of  the  sellers,  now  lying  above  the  rapids,  near 
the  Chaudiere  Falls,  Ottawa  River,  and  stated  by  the  said  Thomas 
Durrell  to  consist  of  1,391  pieces,  measuring  50,000  feet,  more  or  less, 
deliverable  at  Quebec,  on  or  before  the  15th  of  June  next,  and  payable 
by  the  purchasei-'s  promissory  notes  at  ninety  days'  date  from  this 
date,  at  the  rate  of  9hd.  per  foot  measured  off.  Should  the  quantity 
turn  out  more  than  above  stated,  the  sui'plus  to  be  paid  for  by  the 
purchasers  at  9^1.  per  foot,  on  delivery,  and  should  it  fall  short,  the 
difference  to  be  refunded  by  the  sellers.  Signed  in  duplicate  Montreal, 
3d  December,  1834.  Hart,  Logan  &  Co.,  Le  Mesurier,  Routh  &  Co. 
To  be  delivered  at  M.  B.  Farlin's  booms,  at  Sillery  Cove,  Quebec." 

On  the  5th  of  December,  1834,  the  respondents'  promissory  notes 
for  the  sum  of  £1,979  3s.  4d.,  at  ninety  days,  were  delivered  to  the 
appellants  in  terms  of  the  contract. 

The  timber  thus  purchased  was  not  delivered  on  the  15th  of  June, 
1835,  the  day  specified  in  the  contract ;  but  late  in  the  day  of  the  19th  of 
June  a  raft  floated  down  to  Quebec,  under  the  charge  of  one  Ostrom, 
and  arrived  at  .the  2:)art  of  the  river  nearly  opposite  to  the  appointed 

1  Present :  Lord  Brougliam,  Lord  Langdale,  Lord  Campbell,  the  Right  lion.  Dr 
Lushiugton,  and  the  llight  Hon.  T.  Pemberton  Leigh. 


682  LOGAN   V.   LE   MESURIER.  [CHAP.  II. 

place  for  delivery,  viz.,  Farlin's  booms,  at  Sillery  Cove,  Quebec,  which 
purported  to  consist  of  the  timber  so  purchased.  The  booms  at  Sillery 
Cove  being  full,  the  raft  was,  at  the  instance  of  Farlin,  removed  to  a 
short  distance  from  the  spot  and  properly  secured.  In  the  course  of 
the  followinsf  nio-ht  before  the  raft  was  or  could  be  received  Avithin  the 
booms,  it  was  broken  up  and  dispersed  by  a  violent  storm,  wherein  the 
greater  part  of  the  timber  was  wholly  lost.  After  the  dispersion, 
the  respondents  collected  all  the  timber  that  they  were  able  to  recover, 
and  paid  salvage  for  it,  and  dressed  and  shipped  on  their  own  account 
what  had  been  so  saved.  They  also  purchased  other  timber  at  the 
rate  of  lOhd.  per  foot,  the  then  market  price,  to  fulfil  certain  contracts 
they  had  made  upon  the  presumption  that  the  timber  would  be  deliv- 
ered to  them  according  to  the  terms  of  the  contract. 

The  respondents  afterwards  brought  an  action  in  the  District  Court 
of  Montreal  to  recover  back  from  the  appellants  the  above  sum  of 
£1,979  35.  4(1,  the  amount  of  the  promissory  notes,  which  had  been 
paid  at  maturity,  and  also  for  damages,  laid  at  £400,  for  the  non-deliv- 
ery of  the  timber  according  to  the  contract.  The  appellants  resisted 
this  demand,  and  at  the  same  time,  by  incidental  or  cross  suit,  claimed 
to  recover  from  the  respondents  the  residue  of  the  price,  amounting, 
as  was  alleged,  to  £197  18s.  4cl 

The  declaration  consisted  of  two  counts :  the  first  count  set  forth 
the  aboA'e  contract ;  it  then  averred  payment  of  the  price,  according 
to  the  contract,  by  making  and  delivering  promissory  notes  of  the 
plaintiffs,  and  satisfying  the  same  Avhen  due ;  and  assigned  for  breach 
that  the  defendants  had  not  on  the  15th  of  June,  or  at  any  time  since, 
delivered  to  the  plaintiffs  at  the  booms  of  Farlin,  at  Sillery  Cove,  nor 
elsewhere,  the  said  quantity  of  timber,  or  any  part  thereof,  but  had 
therein  wholly  made  default.  It  was  further  averred,  that  on  or  about 
the  19th  of  June,  the  timber,  then  being  in  the  possession  of  the  de- 
fendants, was  by  the  force  and  violence  of  the  Avinds  and  AvaA^es 
wrecked,  scattered,  destroyed,  and  AA^holly  lost,  Avithout  any  default  on 
the  part  of  the  plaintiffs ;  and  that  the  plaintiffs  Avere  thereby  not  only 
deprived  of  the  above  sum  of  £1,979  os.  4d.,  so  paid  by  them  as  the  price 
of  the  timber,  and  of  the  interest  thereon,  but  had  suffered  damages  to 
the  amount  of  £400,  by  reason  of  their  being  obliged,  through  the  de- 
fendants' default,  to  purchase  other  timber  at  a  higher  price,  to  enable 
them  to  fulfil  certain  contracts  Avhich  they  had  entered  into  upon  the 
faith  of  the  due  performance  of  their  contract  by  the  defendants. 
The  second  count  differed  from  the  first  only  by  setting  forth  that  the 
timber  Avas  deliA'erable  at  the  city  of  Quebec  generally,  Avithout  speci- 
fying the  booms  of  Farlin,  and  the  breach  Avas  assigned  in  respect  of 
the  non-delivery  at  the  city  of  Quebec.  The  defendants  pleaded  to  the 
first  count ;  first,  that  on  the  15th  of  June,  1835,  they  did  deliver  the 
timber  at  the  booms  of  Farlin,  at  Sillery  Cove,  and  that  the  same 


( 


SECT.  II.]  LOGAN   V.   LE   MESURIER.  683 

was  then  received  by  the  plaintiffs.  Second,  that  on  the  19th  of  June, 
1835,  they  delivered  the  timber  at  the  booms,  &c.,  omitting  the  allega- 
tion that  it  was  received  by  the  plaintiffs,  and  averred  performance  of 
their  contract  generally.  Third,  that  on  the  19th  of  June,  1835,  and 
before  they  the  defendants  had  been  placed  €?i  demeure,  they  delivered 
the  timber  at  the  booms,  &c.,  according  to  their  contract.  Fourth, 
that  on  the  19th  of  June,  1835,  and  before  they  had  been  placed  en 
demeure,  they  delivered  the  timber  to  Farlin,  the  agent  of  the  plain- 
tiffs in  that  behalf  Fifth,  that  on  the  19th  of  June  they  delivered  the 
timber  at  the  booms  of  Farlin  to  the  plaintiffs,  and  that  it  was  then  in 
the  power  of  the  ]ilaintiffs  to  take  and  receive  the  same  into  the  booms, 
but  that  the  plaintiffs,  although  requested,  neglected  and  refused 
so  to  do  ;  and  that  on  the  20th  of  June,  1835,  there  arose  a  storm  of 
unusual  violence,  by  wliich  the  timber  was  broken  away  from  its  moor- 
ings, and  was  broken  up,  dispersed,  and  carried  away  ;  and  the  pieces 
composing  the  raft  were  lost,  except  500  pieces,  Avhich  it  was  averred 
the  ]ilaintiffs  succeeded  in  saving  and  recovering  for  themselves,  and 
which  came  into  the  hands  of  the  plaintiffs  and  were  used  and  appro- 
priated by  them ;  that  if  the  timber  had  been  received  into  the  booms 
the  whole  would  have  been  saved ;  and  that  the  loss  was  attributable 
to  the  storm,  and  to  the  negligence  of  the  plaintiffs  in  leaving  the  tim- 
ber exposed,  and  not  to  any  want  of  due  care  on  the  part  of  the  de- 
fendants. Sixth,  that  after  the  making  of  the  promise,  and  before  the 
defendants  had  been  placed  e7i  demeure,  to  wit,  on  the  19th  of  June, 
1835,  the  defendants  delivered  the  timber  at  the  booms,  &c.,  to  Far- 
lin, the  agent  of  the  plaintiffs.  That  it  was  incumbent  on  Farlin  and 
the  plaintiffs  to  receive  the  timber  into  the  booms,  and  that  they  were 
requested  to  do  so,  but  that  neither  Farlin  nor  the  i)laintiffs  would  re- 
ceive the  timber  into  the  booms  ;  that  on  the  contrary,  the  booms,  by 
the  act  of  Farlin,  were  so  completely  filled-  Avith  timber,  that  neither 
he  nor  the  plaintiffs  could  receive  the  timber  into  the  booms.  That 
the  booms  could  not  have  admitted  the  timber  at  any  period  of  time 
between  the  earliest  moment  of  the  19th  of  June  and  the  latest  hour 
of  the  20th  ;  that,  in  consequence,  the  timber  remained  out  of  the 
booms ;  that  afterwards,  and  whilst  it  was  so  lying  out  of  the  booms, 
a  storm  arose,  by  which  it  Avas  broken  away  from  its  moorings,  and 
dispersed  and  carried  away,  except  500  pieces  saved,  and  appropriated 
as  before  mentioned  by  the  plaintiffs.  That  if  the  timber  had  been 
received  into  the  booms  on  the  19th  of  June,  when  so  delivered  tliereat, 
the  pieces  would  have  been  measured  off,  and  no  part  would  have  been 
lost ;  and  that  but  for  the  negligence  and  refusal  of  the  plaintiffs  and 
Farlin,  the  timber  Avould  have  been  measured  off  and  saved.  Seventh, 
that  on  the  19th  of  June,  1835,  the  defendants  did  deliver  the  timber 
at  the  booms,  &c.,  and  that  they  could  not  deliver  the  same  at  an  earlier 
day,  by  reason  of  the  unusual  lateness  of  the  spring  of  the  year  1835. 


684  LOGAN   V.   LE   MESURIER.  [CHAP.  II. 

To  the  second  count  the  pleas  were  in  all  respects  similar,  except  as  to 
such  slight  variations  as  were  rendered  necessary  by  the  difference  in 
the  statement  of  the  place  where  the  timber  was  deliverable. 

In  addition  to  these  pleas,  the  defendants  pleaded  also  the  follow- 
ing peremptory  exceptions  to  both  counts  of  the  declaration :  First, 
that  on  the  19th  of  June,  1835,  and  before  they  had  been  placed  en 
demeure,  they  did  deliver  the  timber  to  the  i^laintiffs  at  the  booms  of 
Farlin,  and  the  same  was  then  and  there  received  by  the  plaintiffs. 
Second,  that  on  the  19th  of  June,  1835,  and  before  they  had  been 
placed  en  demeure^  they  did  deliver  tlie  timber  at  the  city  of  Quebec. 
Each  of  these  exceptions  and  peremptory  exceptions  concluded  with 
an  averment,  that  in  fact  the  timber  contained  50,000  feet  at  the 
least. 

The  incidental  demand  (or  declaration)  in  the  cross-action  of  the 
defendants,  consisted  of  three  counts;  the  first  of  which,  after  setting 
forth  the  contract,  averred  a  delivery  of  the  timber  at  the  booms,  &c., 
and  that  the  same  turned  out  to  contain  55,000  feet;  and  assigned  for 
a  breach,  the  non-payment,  by  the  incidental  defendants,  of  the  price 
of  the  surplus  5,000  feet,  amounting  to  £197  18s.  4f?.  The  second 
count  alleged  a  delivery  on  the  19th  of  June,  before  the  incidental 
plaintiffs  were  placed  en  demeure.  The  third  count,  after  setting  forth 
the  contract  and  the  delivery  on  the  19th  of  June,  before  the  incidental 
plaintiffs  were  placed  en  demeure^  and  averring  that  the  quantity  de- 
livered was  55,000  feet,  proceeded  to  allege,  that  after  the  timber  had 
been  delivered  at  the  booms,  it  was  allowed  by  the  incidental  defend- 
ants to  remain  outside,  and  insecure  against  accidents  of  weather ;  that 
a  storm  arose  whereby  it  was  broken  away,  and  dispersed,  except  500 
pieces  saved  and  appropriated  as  before ;  that  if  the  timber  had  been 
received  into  the  booms  and  secured,  the  number  of  feet  contained  in 
it  could  have  been  measured  off  by  tlie  incidental  defendants,  and  no 
part  would  have  been  lost ;  and  concluded  with  a  similar  breach  as  to 
the  non-payment  of  the  sum  of  £197  18s.  '^d.  currency,  the  price  of  the 
surplus  quantity  above  50,000  feet,  at  9\d.  per  foot. 

The  issues  were  completed  by  general  replication  and  answers  to  the 
pleas  and  exceptions  of  the  defendants,  and  by  general  pleadings  to 
the  incidental  demand,  whereby  the  whole  of  the  material  facts  averred 
on  the  one  side  and  on  the  other  were  respectively  denied. 

Evidence  was  then  taken  on  both  sides,  and  the  cause  having  been 
heard  on  the  merits,  the  judgment  of  the  Court  of  King's  Bench  was 
declared  in  the  following  terms  :  "  The  court  having  duly  deliberated, 
proceeding  first  to  adjudicate  upon  the  principal  demand,  and  consid- 
ering that  the  defendants,  incidental  plaintiffs,  have  established  in  evi- 
dence a  good  and  sufficient  ofier  and  tender  to  make  a  true  and  legal 
delivery  to  the  said  plaintiffs  of  a  quantity  of  red  pine  timber,  in  con- 
formity with  the  contract  or  agreement  sous  seign^^nve  entered  into 


SECT.  II.]  LOGAN   V.    LE   MESURIER.  685 

between  the  parties,  and  dated  Montreal,  the  third  day  of  December, 
1834  ;  which  offer  being  refused  by  the  phuntiffs,  incidental  defendants, 
the  quantity  of  red  pine  timber  was  immediately  afterwards  dispersed, 
and  the  actual  delivery  of  it  prevented  hy  /orce  majeure,  and  that  the 
defendants  and  incidental  ]»laintiffs  are  not  guilty  of  any  lireach  of  the 
contract :  It  is  adjudged  that  the  principal  demand  be,  and  the  same 
is  hereby  dismissed  with  costs  to  the  defendants,  incidental  j)laintifrs. 
And  the  court  proceeding  to  adjudge  upon  the  incidental  demand 
made  in  this  cause,  it  is  considered  and  adjudged  that  the  incidental 
plaintiffs  in  this  cause  do  recover  from  the  incidental  defendants  tlie 
sum  of  £140  \0s.  bd.,  being  the  balance  remaining  due  upon  tlie  price 
and  value  of  53,560  feet  of  red  pine  timber,  the  quantity  sold  by  the 
incidental  plaintiffs  to  the  incidental  defendants,  under  the  contract  or 
agreement  above  mentioned  of  the  third  day  of  December,  1834,  and 
of  which  the  delivery  was  as  aforesaid  tendered  by  the  incidental 
plaintiffs  to  the  incidental  defendants,  and  by  them  refused  ;  and  the 
same  was  dispersed,  and  the  actual  delivery  thereof  was  prevented  by 
force  majeure  as  aforesaid,  the  timber  being  calculated  at  the  rate  of 
9^-d.  per  foot,  with  interest  thereon  from  the  first  day  of  December, 
1835,  date  of  the  filing  of  the  incidental  demand,  until  actual  payment 
and  costs  of  the  incidental  demand,  to  which  the  court  condemns  the 
incidental  defendants." 

From  this  judgment  the  present  respondents  appealed  to  the  Court 
of  Appeals  for  Lower  Canada,  assigning  error  in  the  general  form. 
And  the  appeal  having  been  heard,  judgment  was,  on  the  tenth  day  of 
November,  1845,  pronounced  by  that  court,  reversing  the  judgment 
of  the  court  Ijclow ;  the  material  part  of  which  Avas  in  the  following 
terms :  "  This  court,  considering  that  it  appears  from  the  evidence 
adduced  in  the  cause,  that  on  or  about  the  19th  of  the  month  of  June, 
at  a  place  called  Convent  Cove,  near  Quebec,  the  aforesaid  quantity 
of  red  pine  timber,  then  and  there  being  in  possession  of  the  defend- 
ants, and  of  their  agents  and  servants,  unmeasured  and  undelivered  to 
the  appellants,  was,  by  the  force  and  violence  of  the  winds  and  waves, 
wrecked,  scattered,  destroyed,  and  lost,  without  any  default  on  the 
part  of  them,  the  appellants,  whereby  they  were  deprived  of  the  sum 
of  £1,979  35.  Ad.,  so  by  them  paid  to  the  respondents,  as  and  for  the 
price  of  the  quantity  of  red  pine  timber  so  to  be  delivered,  and  of  the 
lawful  interest  of  that  sum,  from  the  6th  of  March,  1835,  when  the  same 
was  paid,  and  considering,  likewise,  that  the  appellants  were  com- 
pelled and  obliged  to  buy  and  purchase,  and  did  buy  and  purchase 
other  red  pine  timber,  at  a  greater  and  higher  price,  to  wit,  at  and  after 
the  rate  of  lO^d.  for  each  foot  thereof,  to  enable  them,  the  appellants,  to 
fulfil  and  perform  certain  contracts  and  promises  by  them  entered  into 
and  made  in  the  way  of  tlieir  business  as  merchants  at  Quebec  afore- 
said, under  the  presumption  and  belief  that  the  respondents  would 


6SQ  LOGAN    V.    LE    MEfeURIER.  [CHAP.  11. 

have  delivered  to  them  the  quantity  of  red  pine  timber,  according  to 
the  tenor  and  effect  of  the  said  contract  or  agreement,  for  the  sale  and 
delivery  thereof  at  Sillery  Cove,  near  Quebec,  on  or  before  the  15th 
of  June,  1835.     And  this  court,  considering  further  that  upon  the  sale 
of  goods  by  admensuration,  which  may  happen  to  be  destroyed  before 
measurement,  the  loss  is  cast  upon  the  seller,  that  the  stipulations  of 
admeasurement  and  of  delivery  at  a  particular  place,  rendered  the  sale 
conditional  and  incomplete  until  the  occurrence  of  those  events,  and 
that  in  the  mean  time  the  risk,   '■  joericulum  rei  venclitce^  is  not  to  be 
borne  by  the  purchasers  :  that  after  the  expiration  of  the  time  fixed  for 
the  delivery,  the  purchaser  was  not  bound  to  receive  the  property,  the 
contract  having  been  determined  by  the  sellers'  breach  of  its  condi- 
tions, and  that  in  the  performance  of  all  commercial  contracts  punctu- 
ality is  required,  the  rule  of  the  civil  law,  '  dies  interjyellat  pro  homine^ 
being  strictly  applicable  to  them :  it  is  therefore  by  the  court  now  here 
considered  and  adjudged,  and  the  respondents  are  hereby  adjudged 
and  condemned  to  pay  and  satisfy  to  the  appellants :    First,  the  sum 
of  £1,979  3s.  4f?.,  with  interest  thereon,  from  the  13th  of  July,  1835, 
the  day  of  the  service  of  the  judicial  demand  in  this  cause,  till  paid. 
And  secondly,  the  sum  of  £312  10^,  being  the  difference  in  value  of 
the   quantity  of  50,000  feet  of  red  pine,  between  the  market  price 
thereof  in  the  month  of  June,  1845,  and  the  price  of  9^~c?.  per  foot,  being 
the  contract  price  for  which  the  respondents  w^ere  to  have  delivered 
the  quantity  of  red  pine  timber  to  the  appellants,  with  interest  on  the 
sum  of  £312  10s.  from  this  date,  till  paid.     And  this  court  hereby  dis- 
misses the  demand  of  the  respondents  as  incidental  plaintiffs  in  the 
court  below,  reserving  to  them,  the  respondents,  nevertheless,  all  such 
recourse  as  they  legally  may  have  and  take  for  the  value  of  such  quan- 
tities or  parcels  of  the  red  pine  timber,  as  may  have  come  into  their 
hands  and  possession,  belonging  to  the  respondents,  subsequent  to  the 
19th  of  June,  1835.     And  lastly,  this  court  doth  adjudge  and  condemn 
the  respondents  to  pay  to  the  appellants,  as  w^ell  the    costs   of  the 
suit  or  action  as  of  the  incidental  demand  in  the  court  below,  together 
with  the  costs  of  the  appeal.     It  is  ordered,  that  the  record  and  pro- 
ceedings in  this  cause  be  remitted  to  the  Court  of  Queen's  Bench  for 
the  district  ot  Montreal." 

From  this  judgment  the  present  appeal  to  Her  Majesty  in  Council 
was  brought. 

Sir  Frederick  Thesiger^  Q.  C,  Mr.  Greemoood,  Q.  C,  and  Mr. 
Benson,  for  the  appellants. 

This  contract  of  sale  was  an  absolute,  and  not  a  conditional  contract. 
[Lord  Campbell  :  What  law  is  to  govern  this  case  ?  the  old  French 
law,  in  force  in  Low^er  Canada,  or  the  law  of  England  ?]  A  conflict  of 
laws  cannot  arise  in  this  case,  as  the  old  French  law,  in  force  in  Lower 
Canada,  and  the  law  of  England,  upon  this  question,  are  the  same. 


SECT.  II.]  LOGAN   V.    LE   MESURIER.  687 

We  submit  tliat  the  property  vested,  on  the  execution  of  the  contract, 
in  the  purchasers.  Nothing  furtlier  was  requisite  to  be  done  by  the 
vendors;  and,  therefore,  any  loss  whicli  might  occur  subsequently  was 
at  the  risk  of  the  purchasers.  1  Pothier,  Tr.  du  Cont.  de  Vent. 
part  iv.  pp.  579,  584.  It  was  the  sale  of  a  certain  thing,  assumed  to 
contain  a  certain  quantity.  To  the  same  effect  are  the  English  author- 
ities. Thus  in  Tarling  u.  Baxter,' Mr.  Justice  Ilolroyd  says,  "In  the 
case  of  a  sale  of  goods,  if  nothing  remains  to  be  done  on  the  part  of  the 
seller,  as  between  him  and  the  buyer,  before  the  thing  purchased  is  to 
be  delivered,  the  pro])erty  in  the  goods  immediately  passes  to  the 
buyer,  and  that  in  the  price  to  the  seller."  And  this  case  has  been  fol- 
loAved  by  Swanwick  v.  Sothern,-  Zagury  v.  Furnell,''  Hanson  v.  Meyer,'* 
Martindale  v.  Sniith,^  Dixon  v.  Yates,''  Alexanders.  Gardner,"  Gillett  v. 
Hill,*  Clarke  v.  Spence.^  [Lord  Brougham:  The  case  of  Simmons  v. 
Swift,"  is  an  authority  against  you.  There  it  was  held  that  where  the 
quantity  had  to  be  ascertained  before  the  price  could  be  fixed,  the  con- 
tract was  not  coni])letc  until  delivery.  It  is  on  all  fours  with  this  case.] 
That  case  is  distinguishable  from  the  present.  The  judgment  there 
proceeded  upon  the  circumstance  that  the  vendor  was  to  weigh  the 
goods.  Here  is  a  sale  of  a  specific  article,  assumed  to  contain  a  certain 
quantity,  which  is  to  regulate  the  price.  If  any  step  was  to  be  taken 
to  ascertain  the  price,  Ave  admit  that  the  contract  is  not  complete. 
Simmons  v.  Swift.  [Lord  Campbell:  Plow  can  you  show  the  exact 
amount  of  the  price  ?  The  timber  was  to  be  paid  for  at  the  rate  of  9?,c?. 
per  foot  measured  off.]  That  might  refer  to  a  former  measurement; 
we  admit  that  there  was  to  be  a  future  measurement.  The  appellants, 
afler  execution  of  the  contract,  and  payment  of  the  stipulated  price, 
became  mere  bailees  and  agents  of  the  respondents,  and  were  only 
bound  to  use  the  same  diligence,  and  to  take  the  same  care  of  the 
timber  as  they  Avould  have  done  if  the  property  had  been  their  own, 
Fragano  v.  Long,"  Kent's  Comms.,  vol.  ii.  491 ;  Smith's  Mercantile  Law, 
p.  399  (2d  edit.)  ;  they  were  not  responsible  for  any  loss  which  might 
arise,  without  wilful  default  of  their  own,  and  which  would  have  arisen 
from  the  act  of  God,  and  vis  major. 

By  the  terms  of  the  contract  of  sale,  the  goods  were  to  be  delivered 
at  Farlin's  boom,  on  or  before  the  15th  of  June.  Supi)osing  the  de- 
livery, at  that  time,  was  a  condition  precedent,  and  that  the  delivery 
did  not  take  place  till  the  19th,  instead  of  the  loth  of  June,  for  there 
was  a  delivery  and  acceptance  by  Farlin,  who  nuist  be  treated  as  the 
axithorizcd  agent  of  the  purchasers;  still,  if  time  Avas  a  condition  prece- 
dent, if  there  was  a  breach  of  the  contract  in  that  respect,  the  breach 

1  6  B.  &  Cr.  365.  '^  9  Ad.  &  Ell.  895.  3  2  Camp.  240. 

*  6  East,  614.  »  1  Q.  B.  Rep.  389.  6  5  b.  &.  Ad.  313,  343. 

1  1  Bing.  N.  C.  671.  »  2  Cro.  &  Mee.  530.  9  4  Ad.  &  Ell.  448. 

10  5  B.  &  Cr.  857.  "  4  B.  &  Cr.  219. 


4> 

688  LOGAN    V.    LE   MESURIER.  [CHAP.  II. 

was  waived  by  the  acceptance  by  the  purchasers  of  the  remainder  of 
the  timber  after  the  breaking  up  of  the  raft.  Hotham  v.  East  India 
Company,^  Glahohn  v.  Uays,^  Bornmann  v.  Tooke,^  Havelock  v. 
Geddes,"  Ritchie  v.  Atkinson,^  Clipsham  v.  Vertue,^  Alexander  v. 
Gardner,''  Porter  v.  Shephard,«  Pordage  v.  Cole.«  Abbott  on  "  Ship- 
ping," p.  251  (2d  edit.).  The  purchasers,  after  the  loss,  treated  the 
property  as  their  own.  It  is  clear  that  the  respondents  took  a  great 
part  of  the  timber  under  the  contract.  [Lord  Brougham  :  The  re- 
spondents say  that  the  contract  was  at  an  end,  and  that  the  timber 
came  to  their  hands  irrespective  of  such  contract.]  A  party  cannot 
repudiate  part  of  a  contract.  The  vendors  might  have  their  cross- 
action  for  damages  for  non-performance  of  the  entire  contract.  David- 
son V.  Gwynne,i°  Marshall  v.  Lynn,"  Constable  v.  Cloberie.^^  Even  if  the 
delivery,  on  the  19th,  instead  of  the  15th  of  June,  was  not  sufficiently 
excused,  the  appellants,  though  liable  to  damages  if  sustained  by 
the  purchasers  by  reason  of  the  delay,  were  not  compellable  to  refund 
the  price  of  the  timber;  but  the  damage  which  they  have  sustained 
was  not  caused  by  the  non-delivery  on  the  15th  of  June,  but  by  the 
respondents  not  having  taken  proper  measures  to  have  Farlin's  booms 
ready  when  the  timber  was  delivered  and  accepted  by  them.  The 
judgment  of  the  Court  of  Appeals  is,  at  all  events,  erroneous,  in  not 
having  allowed,  in  reduction  of  damages,  the  value  of  the  timber  of 
which  the  respondents  had  obtained  possession. 

Mr.  Crowder,  Q.  C,  and  Mr.  Ifartin,  Q.  C,  for  the  respondents. 

The  cause  of  action  is  for  the  non-delivery  on  the  15th  of  June,  ac- 
cording to  the  terms  of  the  contract.  The  only  answer  that  could  be 
made  to  that,  was  accord  and  satisfaction,  or  release:  waiver  could 
have  nothing  to  do  with  it.  The  sale  in  question  was  a  sale  by  ad- 
measurement, and  not  per  aversionem;  consequently  the  risk  of  the 
loss  by  casus  fortuitus  or  ms  major  remained  with  the  seller  until 
either  admeasurement  had  taken  place  or  the  purchaser  was  in  default. 
Where  the  thing  sold  is  not  ascertained,  or  the  price  is  not  ascertained, 
the  risk  remains  with  the  vendor.  Pothier,  Tr.  du  Cont.  de  Vent., 
pt.  iv.,  n.  308,  et  seq. ;  Viunius  (Arnoldus),  lib.  iii.,  tit.  24  ;i^  2 
Burge's  "  Comms.  on  Confl.  of  Laws,"  535  ;  Voet,  lib.  18,  tit.  6,  n.  4, 
"X>e  Pericido  et  ComP  And  the  English  authorities,  Simmons  v. 
Swift,"  and  Swanwick  v.  Sothern,  are  consistent  with  the  principles  of 
the  civil  law.  The  delivery  and  the  measurement  had  not  taken 
place  at  the  time  of  the  loss,  which  was  occasioned  without  any  default 
on  the  part  of  the  purchasers.     But  even  if  the  sale  had  been  such  as 

1  1  Term  Eep.  638.  2  2  Man.  &  Gr.  257.  '  1  Camp.  377. 

4  10  East,  555.  ^  lo  East,  295.  6  5  Q.  B.  Rep.  265. 

1  1  Bing.  N.  C.  671.  ^  6  Term  Rep.  665.  9  1  Saund.  320. 

10  12  East,  381.  ^^  6  Mee.  &  W.  109.  "  Palm.  397. 

13  Edit.  Amst.  1655,  4to.  l*  5  B.  &  Cr.  857. 


SECT.  II.]  LOGAN   V.   LE   ME3URIER.  689 

to  transfer  to  the  piu'chasers  the  risk  intermediate  between  the  sale  anfl 
the  delivery,  the  sellers  not  having  delivered  or  been  ready  to  deliver 
at  the  time  and  place  appointed  in  the  contract,  the  risk,  from  the  lime 
of  such  default,  reverted  to  them  ;  the  rule  of  the  civil  law,  "  (7/es  inter- 
pellat  pro  homine^''  or  that  the  lapse  of    the  time    specified  alone, 
without  any  interpellation,  is  sufhcient  to  place  the  party  in  default,  is 
applicable,  and  the  sellers  not  having  delivered  the  timber  on  or  before 
the  15th  of  June,  the  time  specified  in  the  contract,  were  en  demeure 
accordingly.     There  is  nothing  to  excuse  the  breach ;  the  one  alleged, 
namely,  the  lateness  of  the  season,  is  no  excuse.     This  was  a  breach, 
which  nothing  Init  a  waiver  on  the  i)art  of  the  purchasers  could  satisfy. 
To  enable  the  sellers  to  take  the  benefit  of  the  waiver,  they  must  show 
that  Farlin  Avas  the  purchasers'  agent  for  receiving  the  timber  on  the 
19th  of  June.     This  Avas  not  so,  therefore  the  whole  loss  falls  on  the 
appellants,  and  the  respondents  had  a  right  to  succeed  in  their  action. 
Pothier,  Tr.  du  Cont.  de  Vent.,  pt.  iv.,  n.  312.     The  case  of  Swanwick 
V.  Sothern,^  relied  on  by  the  ai)pellants,  is  against  this  proposition  ;  but  its 
authority  is  impeached,  and  not  to  be  supported.    There  is  some  doubt 
whether  the  fiicts  of  the  case  correspond  Avith  the  judgment;  and  the 
taking  possession  of  the  timber  saved,  alter  the  raft  Avas  broken  up,  Avas 
not  a  Avaiver,  it  only  created  a  new  contract.     The  appellants  set  up 
a  rijrht  to  the  value  of  the  timber,  but  seek  to  have  it  allowed  in  reduc- 
tion  of  damages.    But  if  the  contract  has  not  been  performed,  an  action 
on  the  contract  Avill  not  lie,  though  sustainable  for  the  value.     They 
could  not  have  both  remedies  by  an  action  of  damages  and  an  action 
upon  the  ncAv  contract.     Story  "  On  Bailments,"  p.  401.     Mondel  v. 
Steel.^     Ko  injustice  can  be  sustained  by  carrying  out  the  judgment  of 
the  coui't  beloAv  in  holding  that  the  appellants  are  entitled  to  recover 
the  value  of  the  timber  salved,  and  the  respondents  are  entitled  to 
recover  the  amount  of  the  promissory  notes  and  the  damage  for  non- 
delivery. 

Lord  Brougham.  In  this  case,  there  was  no  contest  betAveen  the 
parties  as  to  the  laAV  which  should  govern  the  decision  of  the  question, 
because  it  appeal's,  when  the  matter  is  duly  considered,  that  the  old 
French  laAV,  administered  by  the  courts  of  the  province  of  Lower  Can- 
ada, and  grounded  on  the  civil  law,  is,  in  substance,  the  same  with 
our  oAvn,  touching  the  subject-matter  of  the  case  noAV  be  ore  us.  The 
application  of  that  laAV  to  the  facts  of  this  case  remains  alone  to  be  con- 
sidered. We  have  here,  not  an  agreement  to  sell,  but  a  contract  of 
sale  with  certain  terms  adjected  ;  and  the  main  question  is,  Avhether  or 
not  that  contract  Avas  completed,  and  passed  the  property  to  the  l)uyer, 
before  the  accident  happened  Avhich  partially  destroyed  the  subject- 
matter  of  the  contract. 

1  9  Ad.  &  Ell.  895.  «  s  Mee.  &  W.  858. 


690  LOGAN   V.   LE   MESURIER.  [CHAP,  II. 

!N'ow,  to  constitute  a  sale  which  shall  immediately  j^ass  the  property, 
it  is  necessary  that  the  thing  sold  should  be  certain,  should  be  ascer- 
tained in  the  first  instance,  and  that  there  should  be  a  price,  either 
ascertained  or  ascertainable.  But  the  parties  may  buy  or  sell  a  given, 
thing,  nothing  remaining  to  be  done  for  ascertaining  the  specific  thing 
itself,  but  the  price  to  be  afterwards  ascertained  in  the  manner  fixed 
by  the  contract  of  sale,  or  upon  a  quantum  valeat:  or  they  may  agree 
that  the  sale  shall  be  complete,  and  the  property  pass  in  the  specific 
thing,  chattel,  or  other  goods,  although  the  delivery  of  possession  is 
postponed,  and  although  something  shall  remain  to  be  done  by  the 
seller  before  the  delivery ;  or  they  may  agree  that  nothing  remains  to 
be  done  for  ascertaining  the  thing  sold ;  yet,  that  the  sale  shall  not  be 
complete,  and  the  property  shall  not  pass,  before  something  is  done  to 
ascertain  the  amount  of  the  price.  The  question  must  always  be,  what 
"was  the  intention  of  the  parties  in  this  respect ;  and  that  is,  of  course, 
to  be  collected  from  the  terms  of  the  contract.  If  those  terms  do  not 
show  an  intention  of  immediately  passing  the  jDroperty  until  something 
is  done  by  the  seller,  before  delivery  of  possession,  then  the  sale  cannot 
be  deemed  perfected,  and  the  property  does  not  pass  until  that  thing 
is  done.  It  is  unnecessary  to  go  through  the  cases  relating  to  these 
positions.  None  c>f  them  will  be  found  at  all  to  impugn  them.  Indeed, 
taken  together,  they  clearly  support  it,  as  does  the  old  French,  and  the 
civil  law. 

In  applying  this  doctrine  to  the  contract  before  us,  there  may  be 
some  doubt  raised  by  the  peculiarity  of  the  terras,  inasmuch  as,  on  the 
one  hand,  a  certain  chattel  is  sold,  and  a  price  fixed  in  reference  to  an 
assumed  measurement,  the  statement  of  which  is  parcel  of  the  con- 
tract, and  the  price  is  to  be  paid  immediately,  with  a  reserved  right 
for  the  one  party  to  recover  part  of  that  price,  and  for  the  other  party 
to  receive  more,  in  case  that  assumption  shall  prove  to  have  been  in- 
correct ;  while,  on  the  other  hand,  the  seller  is  to  retain  possession,  to 
carry  the  chattel  to  a  certain  place,  there  to  deliver  it  at  a  certain  time, 
and  to  make  the  measurement  before  the  delivery.  But,  taking  the 
whole  of  these  terms  together,  it  appears  to  us  that,  until  the  measure- 
ment and  delivery  was  made,  the  sale  was  not  complete,  there  being 
nothing  in  the  terms  to  show  an  intention  that  the  property  should 
pass  before  the  measurement ;  but,  on  the  contrary,  the  intention  rather 
appearing  to  be,  that  the  transfer  should  be  postponed  until  the  meas- 
urement at  the  delivery. 

The  timber  is  fully  specified  by  the  description,  and  the  place  where 
it  lay ;  it  is  further  said  to  be  the  property  of  Durrell,  but  under  the 
control  of  the  sellers.  Durrell's  statement  of  the  quantity  is  given, 
that  it  measured  "  50,000  feet,  more  or  less ; "  it  is  to  be  delivered  on 
or  before  a  certain  day,  the  15th  of  June,  at  Farlin's  Boom,  Quebec, 
and  the  jDayment,  to  be  made  by  a  promissory  note  immediately,  is  to 


SECT.  II.]  LOGAN   V.    LE   MESURIER.  691 

be  at  the  rate  of  9.U7.  per  foot,  measured  off,  that  is,  when  measxired 
off;  and,  as  the  seller  is  to  carry  and  to  deliver  it  at  Quebec,  he  is  the 
party  to  measure  it  there,  at  or  before  the  delivery.  Then,  should  the 
quantity  be  found,  when  measured,  to  exceed  the  estimate,  an  addi- 
tional sum  is  to  be  given ;  if  it  fall  short,  a  part  of  the  sum  paid  is  to 
be  returned.  Taking  the  Avhole  of  the  terms  together,  it  ajjpears  to 
ns,  that  the  first  i)art  of  the  contract,  selling  an  ascertained  chattel  for 
an  ascertainable  sum  (and  which,  if  it  stood  alone,  would  pass  the  ])rop- 
erty),  actually  paid  upon  an  hypothesis  or  estimate,  is  controlled  Ijy  the 
subsequent  part  of  *the  contract  providing  for  the  possession,  carriage, 
measurement,  and  delivery,  all  by  the  seller,  with  the  readjustment 
of  the  price  by  repayment  or  increase  of  the  sum  paid  upon  estimate, 
in  the  event  of  the  estimate  pi'oving  erroneous,  and  that  so  tlie  prop- 
erty did  not  pass  before  the  measurement  and  delivery  at  Quebec. 
If  again,  it  be  said  that  the  measurement  was  not  to  be  made  by  the 
seller,  but  in  the  manner  alleged  by  the  appellants,  this  can  make  no 
difference  in  the  result  of  the  agreement,  because  in  what  way  soever, 
and  by  whatsoever  mode,  the  measurement  was  to  be  after  the  delivery 
at  Quebec.  Instead  of  a  sale,  then,  which  the  first  part  of  the  contract 
would  import,  if  standing  alone,  it  is  only  a  contract  to  deliver  at  a 
certain  place  and  time,  and  the  property  did  not  pass  before  that 
delivery. 

That  the  timber  was  not  delivered  at  the  place  prescribed  by  the 
contract,  we  take,  upon  considering  the  whole  of  the  evidence,  to  be 
sufficiently  clear,  and  that  it  was  not  delivered  anywhere  at  the  time 
prescribed,  is  undisjjuted.  The  taking  possession  of  a  part  of  the  tim- 
ber after  the  day,  not  at  the  place,  and  Avhen  the  stonn  had  broken  up 
the  raft,  cannot  of  course  be  considered  as  a  delivery,  nor  can  it  be 
considered  as  an  acceptance  of  the  whole,  nor  as  showing  by  the  party's 
admission,  that  the  property  passed  before  the  accident,  when  the 
terms  of  the  contract  show  that  it  did  not  so  pass- 
It  follows,  from  the  whole,  that  the  action  is  maintainable  for  recovery 
of  the  price  jjaid,  and  for  the  difference  between  the  contract  price  of 
9k?.  per  foot,  and  lO^c?.,  the  market  price  at  the  time  when  the  timber 
ought  to  have  been  delivered.  But  from  the  sum  of  £1,979  3s.  Ad., 
and  the  sum  of  £312  10s.,  must  be  deducted  the  value  of  the  timber 
taken  possession  of  by  the  respondents  at  lQ\d.  per  foot,  less  the  sums 
paid  by  them  for  salvage  and  other  charges.  With  respect  to  the 
quantity  which  they  might  have  received  on  demand,  a  further  sum 
may  be  deducted  if  the  quantity  can  be  agreed  on ;  and  if  no  such 
furthe  •  deduction  be  made,  then  the  property  in  that  timber  remains 
with  the  seller.  Our  desire  is,  that  the  parties  should  come  to  an  un- 
derstanding upon  these  deductions,  in  order  that  the  sums  may  be 
inserted  in  the  judgment,  and  all  further  proceedings  in  the  province 
become  unnecessary. 


692  TURLEY   V.    BATES.  [CHAP.  II. 

The  following  report  was  made  by  tlieir  lordships,  which  was  duly- 
confirmed  by  an  Order  in  Council,  bearing  date  the  11th  of  February, 

1848:  — 

The  Lords  of  the  Committee,  in  obedience  to  your  Majesty's  said  Order  of 
Reference,  have  taken  the  said  appeal  into  consideration,  and  having  heard  coun- 
sel on  both  sides,  their  lordships  do  this  day  agree  humbly  to  report  to  your 
Majesty  as  their  opinion,  that  the  said  Judgment  of  the  said  Court  of  Appeals 
rendered  in  the  said  cause,  or  action,  on  the  lOtb  of  November,  1845,  ought  to 
be  varied,  by  reducing  the  amount  of  the  said  sums  of  £1,979  2>s.  4(i.,  and  £312 
10s.,  making  together  £2,291  13s.  4d.,  thereby  adjudged  and  ordered  to  be 
paid  by  the  said  Appellant,  James  Logan,  to  the  said  Respondents,  Henry  Le 
Mesurier,  Haviland  Le  Mesurier,  Routh,  and  William  Henry  Tilstone,  to  the 
sum  of  £1,200  sterling,  to  be  paid  with  lawful  interest  thereon,  according  to  the 
law  of  Canada,  from  the  6th  day  of  March,  1834,  until  the  time  of  payment ; 
and  their  lordships  are  further  of  opinion,  that  such  part  of  the  said  judgment 
of  the  Court  of  Appeals  as  relates  to  the  costs  of  the  said  suit  or  action  ought 
to  be  affirmed,  and  that  each  party  do^ay  their  own  costs  in  this  appeal  to  your 
Majesty  in  CouncilL/  ^  ,  lA        ifJ  ,jj\ 


r         ^\[P    \y     vi/f^^^^^  '^^^  Exchequer,  June  6,  1863. 

'^  jV      v^    j  J,    ^        [>'  [Reported  in  2  Hurlstone  ^-  Coltman,  200.] 

1     v^      ^yTHE  declaration  contained  a  special  count,  alleging  that  the  plaintiff 

Y*     1j\/oargained  and  sold,  and  the  defendant  bought  from  the  plaintiff,  a 

A^^      quantity  of  fire-clay  then  deposited  on  certain  land  of  the  plaintiff,  at 

'  t/^  the  price  of  two  shillings  per  ton,  upon  the  terras  that  the  defendant 

(^  should  take  away  the  goods,  and  pay  for  the  same  within  a  reasonable 

time.     It  then,  after  averring  that  all  conditions  had  been  fulfilled  to 

entitle  the  plaintiff  to  have  the  goods  taken  away  and  accepted  by  the 

defendant,  and  that  the  defendant  took  away  and  accepted  a  part  of 

the  goods  under  the  contract,  alleged  as  a  breach  that  the  defendant 

would  not  take  away  and  accept  the  residue  of  the  said  goods,  or  pay 

for  the  same,  whereby  the  plaintiff  lost  the  price  and  profit  he  would 

have  made. 

The  declaration  also  contained  counts  for  goods  bargained  and  sold, 
Sfoods  sold  and  delivered,  and  on  an  account  stated. 

The  defendant,  as  to  the  first  count,  pleaded  a  denial  of  the  buymg 
and  selling,  and  of  the  plaintiff's  readiness  to  deliver  and  suffer  the 
defendant  to  take  away  the  residue.  To  the  rest  of  the  declaration 
he  pleaded,  never  indebted  and  a  set-off. 

The  cause  was  tried,  before  Channell,  B.,  at  the  Middlesex  sittings 
after  last  Easter  term,  when  the  following  facts  appeared,  as  stated 


I 


SECT.  II.]  TURLEY   V.    BATES.  693 

in  the  judgment,  post,  697,  The  phiintifF  was  an  iron  and  coal 
master  at  Cosely,  in  Staffordshire.  In  the  year  1854,  and  between 
that  and  tlie  year  1857,  he  excavated  and  raised  from  his  colliery,  the 
Cosely  Moore  Colliery,  a  quantity  of  fire  clay.  Tliis  clay  was  stacked 
in  a  heap  on  land  of  the  plaintiff  near  to  the  bank  of  his  coHiery. 
Before  December,  1860,  a  portion  of  this  heap  had  been  sold  and  re-  ,-^ 

moved.  In  that  month  a  quantity,  estimated  by  tlie  plaintiff  at  about  ^"^ 
1500  tons,  still  remained  stacked  in  the  heap.  The  defendant  had 
before  this  time  bought  of  the  plaintiff,  and  carted  and  carried  away, 
portions  of  the  heap.  On  several  occasions,  in  December,  1860,  the 
plaintiff  and  defendant  met,  and  a  bargain  was  come  to  with  respect 
to  the  clay.  This  bargain  was  on  some  points  differently  represented 
by  the  evidence  for  the  plaintiff  and  by  that  of  the  defendant. 

According  to  the  case  for  the  plaintiff,  the  bargain  concluded  was 
for  the  sale  and  purchase  of  the  entire  heap  as  then  stacked,  at  the 
price  of  two  shillings  per  ton;  the  plaintiff  being  M'illing  to  take  that 
price,  instead  of  a  higher  one  which  he  had  demanded,  provided  the 
whole  heap  was  taken  away,  so  that  the  ground  might  be  cleared  ;  that 
the  defendant  was,  at  his  own  expense,  to  load  and  cart  it  away ;  and 
that  the  clay,  when  on  its  way  to  the  defendant's  premises,  was  to  be 
weighed  at  a  weighing  machine  belonging  to  one  Johnson,  which 
machine  the  defendant's  carts  would  pass  on  their  way ;  and  that  the 
defendant  was  to  pay  for  the  weighing. 

It  was  not  denied,  on  the  part  of  the  defendant,  that  a  bargain  was 
made  to  pay  for  such  clay  as  he  might  take  away  at  the  rate  of  two 
shillings  per  ton,  nor  that  such  clay  was  to  be  carted  and  weighed  at 
his  own  expense ;  but  it  was  contended  by  the  defendant  that  the  bar- 
gain was  not  for  the  whole  heap  as  it  stood,  but  only  for  such  portion 
of  the  clay  as  tfie  defendant  chose  to  send  for  and  cart  away,  and,  after 
having  it  weighed  at  Johnson's  machine,  to  pay  for  it  at  the  rate  afore- 
said. No  point  was  made  on  the  Statute  of  Frauds,  that  the  contract 
was  not  in  writing :  whether  the  verbal  bargain  was  for  the  whole  or 
for  only  a  portion  of  the  stack  was  the  principal  question  in  the  cause. 
It  was,  however,  furthei-  contended  by  the  defendant  that,  whatever  the 
quantity  contracted  to  be  bought,  it  was  bought  on  a  warranty  by  the 
plaintiff  that  the  clay  would  stand  a  red  heat. 

After  the  bargain  the  defendant  at  different  times,  as  he  thought  fit, 
carted  away  portions  of  the  clay,  in  the  whole  about  270  tons.  On  the 
three  or  four  first  occasions  of  carting  away,  the  clay  was  weighed  at 
Johnson's  machine.  On  one  occasion,  the  last,  and  Avithout  any  notice 
to  the  plaintiff,  clay  was  loaded  by  the  defendant's  servants  and  carted 
away  in  an  opposite  direction  to  the  weighing  machine,  and  such  clay 
Tvas  taken  to  a  canal,  where  it  was  loaded  into  a  boat  and  taken  by 
water  carriage  to  Liverpool.  The  plaintiff,  whilst  the  defendant's  men 
were  carting  this  last  clay,  saw  them  and  followed  them,  and  the  clay 


VOL.  I.  45 


694  '        TURLEY  V.    BATES.  [CHAP.  II. 

was  gauged  on  the  barge  in  the  plaintiff's  presence  at  twenty-two 
tons. 

Evidence  was  given,  on  the  part  of  the  defendant,  that  the  clay  which 
had  been  taken  away  by  him  had  been  used  in  his  business,  and  did 
not  answer  the  warranty  alleged  to  have  been  given.  On  this  ground 
also  he  denied  his  liability  to  take  or  pay  for  more  than  had  been  re- 
moved. This  evidence  became  immaterial,  as  the  learned  judge  ruled 
there  was  no  evidence  of  a  warranty. 

All  the  clay  so  taken  away  by  the  defendant  had  either  been  paid  for 
before  action  brought  or  was  covered  by  a  set-off. 

The  learned  judge  left  to  the  jury  the  question  what  was  the  bar- 
gain ;  and  they  found,  for  the  plaintiff,  that  the  bargain  was  a  bargain 
for  the  whole.  It  was  then  further  objected  by  the  defendant,  that, 
assuming  that  the  verbal  bargain  was  for  the  sale  of  the  whole  of  the 
stack  of  clay,  and  further  that  there  was  no  defence  on  the  ground  of 
warranty,  yet,  as  the  clay  sought  to  be  recovered  for  had  never  been 
weighed  at  Johnson's  machine,  the  count  for  goods  bargained  and  sold 
could  not  be  maintained ;  and  that,  in  the  absence  of  any  evidence  of 
any  fall  in  the  value  of  clay  or  other  loss  by  reason  of  not  taking  it 
away,  the  plaintiff  could,  at  most,  recover  only  nominal  damages. 

No  evidence  of  any  actual  loss  or  damage  was  given  and  a  verdict 
was  then  entered  for  the  plaintiff,  by  consent,  for  the  sum  of  £112  10s. 
6d,  as  the  estimated  value  of  the  clay  not  removed,  at  the  contract  price 
of  two  shillings  per  ton ;  leave  being  reserved  to  the  defendant  to  limit 
the  verdict  to  the  iirst  count,  and  to  nominal  damages  on  that  count  in 
case  this  court  should  be  of  opinion  that  the  plaintiff  was  only  entitled 
to  recover  on  that  count. 

In  last  Easter  term  a  rule  for  a  new  trial,  on  the  ground  of  mis- 
direction on  the  point  of  warranty,  was  applied  for  and  refused  ;  but  a 
rule  nisi  was  granted,  pursuant  to  the  leave  reserved,  to  limit  the  ver- 
dict to  the  first  count  and  reduce  the  damages  to  nominal  damages ; 
against  which 

Pigott,  Serjt.,  and  M.  James  showed  cause  in  the  present  term 
(June  6).  The  question  is  whether  the  property  in  the  clay  passed  to 
the  defendant,  so  as  to  entitle  the  plaintiff  to  recover  the  agreed  price 
under  the  count  for  goods  bargained  and  sold.  The  rule  of  law  is 
clear  that  where,  on  a  contract  of  sale,  any  thing  remains  to  be  done 
on  the  part  of  the  seller,  until  that  is  done  the  property  does  not  vest 
in  the  buyer.  Simmons  v.  Swift.^  In  Hanson  v.  Meyer,^  by  the  partic- 
ular terms  of  the  contract,  the  price  was  made  to  depend  on  the  weight 
of  the  goods,  and  therefore,  until  their  weight  was  ascertained,  the 
buyer  had  no  right  of  property  in  them.  But  in  this  case,  by  the  terms 
of  the  contract,  the  defendant  was  to  cart  away  the  clay  at  his  own 

1  6  B.  &  C.  857.  2  6  East,  614. 


SECT.  II.]  TURLEY    V.    BATES.  695 

expense,  and  weigh  it  at  the  weighing  machine  of  a  third  person. 
[Channell,  B.,  referred  to  Gihnour  v.  Supple.^]  Nothing  remained 
to  be  done  on  the  part  of  the  plaintiff,  and  the  defendant  had  a  right  to 
the  possession  of  the  clay,  the  weight  of  which  was  to  he  ascertained 
by  him.  Suppose  a  butcher  bought  an  ox  in  a  field,  under  a  contract 
that  when  killed  he  should  ascei'tain  its  weight,  and  he  afterwards 
took  the  ox  away  and  killed  it,  could  it  be  said  that  no  property  vested 
in  him  until  it  was  weighed.  [Martin,  B.  That  is  merely  the  same 
question  in  another  form.]  In  Gilmour  v.  Supple,  Sir  C.  Cresswell,  in 
delivering  the  opinion  of  the  court,  said  :  "  By  the  law  of  England,  by 
a  contract  for  the  sale  of  specific  ascertained  goods,  the  property  im- 
mediately vests  in  the  buyer,  and  a  right  to  the  price  in  the  seller,  un- 
less it  can  be  shown  that  such  was  not  the  intention  of  the  parties." 
Here,  by  the  terms  of  the  contract,  the  parties  intended  that  tlie  prop- 
erty in  the  clay  should  pass  to  the  defendant  before  it  was  weighed, 
because  the  defendant  undertook  to  remove  and  Aveigli  it.  Could  the 
plaintiff  retake  possession  of  it  because  it  was  not  weighed?  In 
Blackburn  on  Contract  of  Sale,  p.  151,  it  is  said  that  the  rules  "  are 
twofold :  the  first  is  that  where,  by  the  agreement,  the  vendor  is  to  do 
any  thing  to  the  goods  for  the  purpose  of  putting  them  into  that  state 
in  which  the  pvxrchaser  is  to  be  bound  to  accept  them,  or,  as  it  is  some- 
times worded,  into  a  deliverable  state,  the  performance  of  those  things 
shall  (in  the  absence  of  circumstances  indicating  a  contrary  intention) 
be  taken  to  be  a  condition  precedent  to  the  vesting  of  the  property. 
The  second  is,  that  where  any  thing  remains  to  be  done  to  the  goods 
for  the  puq^ose  of  ascertaining  the  price,  as  by  weighing,  measuring,  or 
testing  the  goods,  where  the  price  is  to  depend  on  the  quantity  or 
quality  of  the  goods,  the  perfoiTuance  of  these  things,  also,  shall  be  a 
condition  precedent  to  the  transfer  of  the  property,  although  the  in- 
dividual goods  be  ascertained,  and  they  are  in  the  state  in  which  they 
ought  to  be  accepted."  In  Rugg  v.  Minett,^  and  Zagury  v.  Furnell,^ 
something  remained  to  be  done  by  the  sellers  to  ascertain  the  amount 
of  the  price,  and  that  not  having  been  done,  the  goods,  whicl^  were 
destroyed  by  fire,  remained  at  the  seller's  risk.  But  where  the  buyer, 
for  his  own  satisfaction,  has  the  option  of  weighing  the  goods,  but  the 
seller  has  no  such  privilege  or  duty,  the  sale  is  complete,  and  the  prop- 
erty transferred  to  the  buyer  as  soon  as  the  bargain  has  been  concluded. 
Swanwick  v.  Sothern.^  Suppose  the  defendant  had  taken  away  and 
sold  all  the  clay,  would  it  have  been  any  answer  to  an  action  for  the 
price  that  he  had  never  weighed  it  ?  [Bramweli.,  B.  Suppose  a  con-  \ 
tract  for  the  supply  of  gas  at  so  much  per  cubic  foot,  the  gas  would  be  | 
consumed  before  the  quantity  was  ascertained,  and  could  it  be  said  [ 
that  until  that  was  done  the  property  did  not  pass?    JIiLvrtln,  B.  i 

1  11  Moo.  P.  C.  551.  2  11  East,  210. 

3  2  Camp.  240.  ♦  9  A.  &  E.  895. 


696  TURLEY   V.    BATES.  [CHAP.  II. 

Was  not  the  defendant  a  wrong-doer  in  taking  the  goods  without 
weighing  them  ?]  If  so,  the  plaintiff  may  waive  the  tort  and  sue  for 
their  price. 

Overend  and  Quain,  in  support  of  the  rule.    It  is  immaterial  whether 
the  act  is  to  be  done  by  the  buyer  or  seller ;  so  long  as  any  thing  re- 
mains to  be  done  for  the  purpose  of  ascertaining  the  price  of  the  goods, 
or  their  weight,  or  measurement,  the  right  of  property  and  risk  of  loss 
are  not  altered.   Addison  on  Contracts,  p.  223,  4th  ed. ;  Gilmour  v.  Sup- 
ple.^    The  French  code  prescribes  the  same  rule  of  law.     Code  Civil, 
liv.  iii.,  tit.  vi.,  ch.  1,  art.  1585,2  1586,^  1587.*    If  it  appears  by  the 
terms  of  the  contract  that  the  intention  of  the  parties  was  that  no  prop- 
erty should  pass  until  something  was  done,  it  will  not  pass.     In  Gil- 
mour  V.  Supple,^  Sir  C.  Cressweli  said  :  "  Another  rule  may  be  extracted 
from  the  case  of  Rugg  v.  Minett,^  namely,  that  where  the  seller  is  to 
do  some  act  for  the  benefit  of  the  buyer,  to  place  the  goods  sold  in  a 
state  to  be  delivered,  until  he   has  done  it   the  property  does  not 
pass.  ...  So,  also,  if  an  act  remains  to  be  done  by  or  on  behalf  of  both 
parties  before  the  goods  are  delivered,  the  property  is  not  changed;  of 
which  Wallace  v.  Breeds  ^  furnishes  an  instance."     Therefore  it  is  a 
question  of  intention.    In  the  case  put  of  gas  to  be  supplied  at  so  much 
the  cubic  foot,  it  is  evident  that  the  quantity  could  not  be  ascertained 
until  the  gas  was  consumed,  and  therefore  the  intention  was  that  the 
property  should  pass.     In  Kent's  Commentaries,  vol.  2,  part  v.,  lee. 
xxxix.,  p.  496,  10th  ed.,  it  is  said,  "It  is  a  fundamental  principle  per- 
vadino-  everywhere  the  doctrine  of  sales  of  chattels,  that  if  the  goods  of 
different  value  be  sold  in  bulk  and  not  separately,  and  for  a  single  price, 
ovper  aversionem,  in  the  language  of  the  civilians,  the  sale  is  perfect, 
and  the  risk  with  the  buyer ;  but  if  they  be  sold  by  number,  weight,  or 
measure,  the  sale  is  incomplete,  and  the  lisk  continues  Avith  the  seller, 
until  the  specific  property  be  separated  and  identified."     The  rule  is 
stated  in  similar  terms  by  Troplong  in  his  commentary  on  the  Droit  Civil^ 
\liv.  3,  tit.  6],  "  De  la  Vented'  ch.  1  (Art.  1585),  §  90.'      They  also  cited 

1  11  Moo.  P.  C.  551. 

2  1585.  "Lorsque  des  marchandises  ne  soiit  pas  vendues  en  bloc,  mais  au  poids, 
au  eompte,  ou  a  la  mesure,  la  vente  n'est  point  parfaite,  en  ce  sens  que  les  choses 
vendues  sont  aux  risques  du  vendeur,  jusqu'a  ce  qu'elles  soient  pesees,  compte'es,  ou 
mesurees ;  mais  I'acheteur  peut  en  demander  ou  la  delivrance  ou  des  dommages- 
interets,  s'il  y  a  lieu  en  cas  d'inexe'cution  de  I'engagement." 

3  1586.  "  Si,  au  contraire,  les  marchandises  ont  ete'  vendues  en  bloc,  la  vente  est 
parfaite  quoiqu'e  les  marchandises  n'aient  pas  encore  e'te  pese'es,  compte'es,  ou  mesu- 


rees 


4  1587.  "  A  regard  du  vin,  de  I'huile,  et  des  autres  choses  que  I'on  est  dans  I'usage 
de  gouter  avant  d'en  faire  I'achat,  il  n'y  a  point  de  vente  tant  que  I'acheteur  ne  les 
a  pas  goutees  et  agre'ees." 

5  11  East,  210.  «  13  East,  522. 

1  "  Le  prix  est  incertain  tant  que  le  mesurage  n'a  pas  fait  connaitre  le  detail  de  la 
quantite'  vendue.     Or,  I'incertitude  dans  le  prix  rend  la  vente  conditionnelle,  lorsque. 


SECT.  II.]  TURLEY    V.    BATES.  697 

from  Blackburn  on  Contract  of  Sale,  p.  177,  the  extract  from  Pothier, 
"2>?<  Contrat  de  Verite^''  partie  iv.,  and  the  judgment  of  Littledale,  J., 
in  Simmons  v.  Swift.^  Our.  adv.  vidt. 

The  judgment  of  the  court  was  delivered,  in  the  following  Michael- 
mas vacation  (December  6),  by 

Channell,  B.  This  was  an  action  tried  before  me  at  the  Middle- 
sex sittings,  in  last  Easter  term.  (His  lordship  then  stated  the 
pleadings,  and  proceeded.)  At  the  trial  a  verdict  was  found  for  the 
plaintiff,  damages  £112  10s.  6c?.,  with  leave  reserved  to  the  defendant 
to  move  to  reduce  the  verdict  to  nominal  damages  on  the  ground  here- 
inafter mentioned.  (His  lordship  then  stated  the  facts  as  above  set 
forth,  p.  692.)  This  rule  was  argued  before  the  Lord  Chief  Baron,  my 
brother  Bramwell,  and  myself 

For  the  plaintiff  it  was  contended,  that  where  full  authority  was 
given  to  the  buyer  to  remove  the  clay  sold,  and  all  that  the  seller  liad 
to  do  according  to  the  contract  was  complete,  and  where  every  thing 
that  remained  to  be  done  was  to  be  done  by  the  buyer  at  his  own  ex- 
pense; viz.,  as  in  this  case,  to  cart  away  and  have  the  clay  weighed  at 
his  own  expense,  it  must  be  taken  as  if  there  had  been  such  a  bargain 
and  sale  as  to  pass  the  property,  though  the  clay  had  not  been  removed 
and  weighed,  and  that  the  contract  price  might  be  recoverable  on  the 
count  for  goods  bargained  and  sold. 

For  the  defendant  it  was  contended,  that  taking  the  case  on  the  plain- 
tiff's evidence,  and  as  found  by  the  jury,  that  there  had  been  a  removal 
and  weighing  of  part  of  the  clay,  yet  no  property  passed  in  any  clay 
until  the  clay  had  been  weighed  at  Johnson's  machine,  and  the  quantity 
and  price  thus  ascertained,  so  as  to  entitle  the  plaintiff  to  recover  on 
the  count  for  goods  bargained  and  sold. 

In  the  course  of  the  argument  for  the  defendant  we  were  referred 
to  several  cases  decided  in  our  courts,  which  were  said  to  govern  the 
question,  and  to  a  passage  from  my  brother  Blackburn's  Treatise  on 
Contract  of  Sale,  part  2,  ch.  2,  p.  152.  It  was  argued  that  the  rule 
deducible  from  these  authorities  was,  that  so  long  as  a  price  had  been 
agreed  upon  according  to  quantity,  to  be  ascertained  by  weighing,  that 
until  the  goods  had  been  weighed,  and  the  price  so  ascertained,  the  con- 
tract was  incomplete ;  which  rule  it  was  said  was  in  accordance  with 
the  rule  given  in  Pothier,  Contr.  de  Vente,  with  Kent's  Commentaries, 
vol.  2,  p.  496,  NcAv  York  edition,  1848,  the  Code  Civil,  liv.  iii.,  tit.  vi., 
ch.  1,  art.  1585,  1586,  1587. 

The  rule  as  stated  in  Blackburn  on  Contract  ot  Sale,  p.  152,  is,  '*that 

pour  passer  de  rincertain  au  certain,  il  faut  remplir  une  condition  telle  que  celle  du 
comptage,  du  mesurage  ou  du  pesage." 
1  5  B.  &  C.  857,  864. 


698  TURLEY   V.    BATES.  [CHAP.  II. 

where  any  thing  remains  to  be  done  to  the  goods  for  the  purpose  of 
ascertaining  the  price,  as  by  weighing,  measuring,  or  testing  ihe  goods 
where  the  price  is  to  depend  on  the  quantity  or  quahty  of  the  goods, 
the  performance  of  these  things,  also,  shall  be  a  condition  precedent  to 
the  transfer  of  the  property,  although  the  individual  goods  be  ascer- 
tained, and  they  are  in  the  state  in  which  they  ought  to  be  accepted." 

After  adverting  to  the  rule  as  one  wholly  adopted  from  the  civil  law, 
the  learned  author  (at  page  153)  says  :  "In  general,  the  weighing,  &c., 
/  must  from  the  nature  of  things  be  intended  to  be  done  before  the  buyer 
I  takes  possession  of  the  goods,  but  that  is  quite  a  different  thing  from 
intending  it  to  be  done  before  the  vesting  of  the  property;  and  as  it 
must  in  general  be  intended  that  both  the  parties  shall  concur  in  the 
act  of  weighing  when  the  price  is  to  depend  on  the  weight,  there  seems 
little  reason  why,  in  cases  whei'e  the  specific  goods  are  agreed  u2:)on,  it 
should  be  supposed"  to  l^e  the  intention  of  the  parties  to  render  the 
delajl-fiOh.^t  ^ct,, in  which  the  buyer  is  to  concur,  beneficial  to  him. 
Whilst  the  price  remains  unascertained,  the  sale  is  clearly  not  for  a  cer- 
tain sum  of  money,  and  therefore  does  not  come  within  the  civilian's 
definition  of  a  perfect  sale,  transferring  the  risk  and  gain  of  the  thing 
sold ;  but  the  English  law  does  not  require  that  the  consideration  for 
a  bargain  and  sale  should  be  in  moneys  numbered,  provided  it  be  of 
value." 

The  learned  author,  however,  considered  the  rule  he  mentions  to  pre- 
vail here,  and  to  rest  upon  the  authority  of  the  English  decided  cases. 
Several  cases  are  then  cited  in  the  treatise :  Hanson  v.  Meyer,^  Hinde 
V.  Whitehouse,^  Rugg  v.  Minett,^  Zagury  v.  Furnell,*  Simmons  v.  Swift,s 
Laidler  v.  Burlinson,®  Tripp  v.  Armitage.'^ 

The  author  further  observes,  "  that  if  it  appear  from  the  agreement 
that  the  intention  of  the  parties  is  that  the  property  shall  pass  pres- 
ently, the  property  does  pass,  though  there  remain  acts  to  be  done  by 
the  vendor  before  the  goods  are  dehverable ; "  citing  Woods  v.  Russell,* 
Clarke  v.  Spence.^ 

It  is  very  doubtful  whether  in  stating  the  rule  to  be,  that  where  any  thing 
remains  to  be  done  to  the  goods  for  ascertaining  the  price,  as  weighing, 
&c.,  the  performance  was  a  condition  precedent  to  the  transfer  of  the 
property,  it  was  meant  by  the  learned  author  to  include  a  case  where 
all  that  remained  to  be  done  was  to  be  done  by  the  buyer  with  full 
authority  from  the  seller  to  do  the  act. 

In  Hanson  v.  Meyer  the  weighing  was  to  precede  the  delivery,  and 
was  a  condition  precedent  to  the  purchaser's  right  to  take  possession, 
and  to  a  comj^lete  present  right  of  property.    In  Hinde  v.  Whitehouse, 

1  6  East,  614.  2  7  East,  558.  3  11  East,  210. 

*  2  Campb.  240.  5  5  b.  &  C.  857.  «  2  M.  &  W.  602. 

7  4  M.  &  W.  687.  8  5  B.  &  A.  942.  »  4  A.  &  E.  448. 


SECT.  II.]  TURLEY   V.    BATES.  699 

which  was  a  case  of  a  sale  by  auction,  it  was  held  that  thougli  the  duties 
to  the  crown  remained  to  be  paid  by  the  seller,  before  possession  could 
be  had  by  the  buyer,  the  jjroperty  passed  from  the  time  of  sale  ;  the 
words  of  the  condition  showing  that  intention.  In  Rugg  v.  Minett,  a 
duty  remained  to  be  performed  by  the  sellers ;  and  Lord  Ellenboroufh 
stated  the  test  to  be,  "  whether  every  thing  had  been  done  by  the  sellers 
which  lay  upon  them  to  perform  in  order  to  put  the  goods  in  a  deliv- 
erable state ; "  and  Mr.  Justice  Bayley,  in  effect,  adopted  the  same  test. 
Zagury  v.  Furnell  is  an  authority  to  the  same  effect.  There  it  was  the 
duty  of  the  seller  to  count  the  skins  in  each  bale,  and  the  price  was  for 
a  certain  sum  per  dozen  skins.  In  Simmons  v.  Swift,  the  authority 
most  in  point  for  the  defendant,  it  Avas  a  part  of  the  contract  there  for 
the  sale  of  a  stack  of  bark  at  £9  per  ton,  that  the  bark  should  be 
weighed,  and  the  concurrence  of  the  seller  in  the  act  of  weighing  was 
necessary.  Bayley,  J.,  after  stating  the  general  principle  says  :  "  If 
any  thing  remains  to  be  done  on  the  part  of  the  seller,  until  that  is  done 
the  property  is  not  changed." 

From  a  consideration  of  these  cases,  it  appears  that  the  principle 
involved  in  the  rule  above  quoted  is,  that  something  remains  to  be  done 
by  the  seller.  It  is,  therefore,  very  doubtful,  as  before  stated,  whether 
the  present  case  comes  within  the  principle  of  the  rule.  But,  however 
that  may  be,  it  is  clear  that  this  rule  does  not  apply  if  the  parties  have 
made  it  sufficiently  clear  whether  or  not  they  intend  that  the  property 
shall  pass  at  once,  and  that  their  intention  must  be  looked  at  in  every 
case.  This  is  clearly  laid  down  in  the  case  of  Logan  v.  Le  Mesurier,^ 
and  in  Ilinde  v.  Whitehouse,^  cited  sujyra,  and  in  Blackburn  on  Contract 
of  Sale,  p.  151. 

In  the  present  case  the  jury  have,  in  effect,  adopted  the  plaintiff's 
version  of  the  bargain,  by  their  finding  that  it  was  for  the  whole  heap. 
And,  taking  that  view  of  the  case,  it  seems  to  us  clear  that  the  inten- 
tion of  the  parties  was  that  the  property  in  the  whole  heap  should  pass, 
notwithstanding  the  clay  was  to  be  weighed  at  Johnson's  machine ;  and 
we,  therefore,  think  that  the  rule  to  reduce  the  damages  must  be  dis- 
charged. Mule  discharged. 

1  6  Moo.  r.  C.  C.  116.  27  East,  558. 


V.    OGDEN.  [chap.  II. 


^ 


RSHAW  V.  OGDEN  and  Others. 
In  the  Exchequer,  May  8,  1865. 

[Reported  in  3  Ilurlstone  <^-  Coltman,  717.] 

The  declaration  contained  a  special  count  for  not  accepting  certain 
goods,  to  wit,  cotton  waste.  Also,  counts  for  goods  bargained  and  sold, 
and  goods  sold  and  delivered. 

Pleas  {inter  alia).     To  the  first  count,  that  the  defendants  did  not 
buy  the  goods  ;   to  the  indebitatus  counts,  never   indebted.      Issues 
thereon. 
^^  At  the  trial  before  Mellor,  J.,  at  the  last  Leeds  Assizes,  the  following 

V^  facts  appeared:  In  December,  1863,  the  plaintiff,  a  cotton  spinner, hav- 

nI  ing  some  cotton  waste  for  sale,  one  Greenhalgh,  an  agent  of  the  defend- 

v^^  ants,  who  were  also  cotton  spinners,  went  to  the  plaintiff's  warehouse, 

i\  when  he  was  shewn  by  the  warehouseman  five  stacks  of  cotton  waste. 

nI  ^  He  asked  for  a  sample,  and  was  told  it  was  not  the  plaintiff's  course  of 

V  business  to  sell  by  sample ;  but  that  he  might  examine  the  stacks,  and 

\  take  a  sample  himself,  which  he  did.     After  some  negotiation  Green- 

'  i  halgh  agreed  to  purchase  four  of  the  stacks,  at  \s.  ^d.  a  pound,  the  de- 

"^  fendants  to  send  their  paclcer  and  sacks,  and  their  cart  to  remove  it. 

^  On  the  3d  of  January  following,  the  defendants  sent  their  packer  with 

eighty-one  sacks  to  pack  the  waste ;  and  he,  with  the  assistance  of  the 
plaintiff's  men,  packed  the  four  stacks  into  those  sacks.  On  the  5th  of 
January,  twenty-one  sacks  were  weighed,  put  into  the  defendants'  cart 
and  taken  to  tlieir  premises,  together  with  a  delivery  order  stating  the 
H^  weight.  The  remainder  of  the  sacks  were  not  weighed.  On  the  same 
'CN^  day  the  twenty-one  sacks  of  cotton  waste  were  returned  to  the  plaintiff 

k  1^      ^    by  the  defendants  with  a  note,  stating  that  the  waste  was  of  an  inferior 
I    ^       I  description  to  that  purchased  by  them.     The  defendants'  carter  took 
^\  x^  the  horse  out  of  the  cart,  and  left  it  loaded  with  the  waste  outside 
.'^  V\^  the  warehouse  of  the  plaintiff,  who,  to  prevent  it  from  spoiling,  ordered 
^^   ^"^  it  to  be  placed  under  shelter,  and  the  next  day  removed  it  from  the 
s^  cart  into  his  warehouse. 

V.        The  learned  judge  left  it  to  the  jury  to  say  whether,  under  all  the 

'^^'^ircumstances,  the  defendants  did  accept  and  actually  receive  part  of 

the  cotton  waste ;  if  so,  the  plaintiff  was  entitled  to  their  verdict.    The 

jury  found  in  the  affirmative,  and  a  verdict  was  entered  for  the  plaintiff 

for  £784  on  the  count  for  goods  bargained  and  sold,  leave  being  reserved 

to  the  defendants  to  move  to  enter  a  nonsuit. 

"^      Brett,  in  the  present  term,  obtained  a  rule  nisi  accordingly,  on  the 

^grounds:  first,  that  there  was  no  evidence  of  an  acceptance  and  actual 


1^.. 


SECT,  II.]  KERSHAW    V.    OGDEN.  701 

receipt  of  the  goods,  so  as  to  constitute  a  Ijinding  contract  within  the 
17th  section  of  the  Statute  of  Frauds,  29  Car.  2,  c.  3 ;  secondly,  that 
the  property  in  the  goods  did  not  pass  to  the  defendants;  against 
which 

Edward  James  and  IlolJcar,  now  shewed  cause.  First,  there  was  a 
sufficient  acceptance  and  actual  receipt  of  part  of  the  goods  to  satisfy 
the  17th  section  of  the  Statute  of  Frauds.  The  defendants  purchased 
certain  ascertained  goods,  viz.,  four  specific  stacks  of  cotton  waste;  and 
when  the  defendants'  packer  put  it  into  their  sacks  there  was  an  accept- 
ance of  it  by  them.  There  was  also  an  actual  receipt  of  the  cotton 
waste  by  the  defendants,  for  their  servants  put  it  into  their  cart  and 
took  it  to  their  premises.  It  is  not  necessary  that  tlie  acceptance  of 
the  goods  should  follow  or  be  contemporaneous  with  the  receipt  of  them. 
Cusack  V.  Robinson.^  In  that  case  the  accejitance  was  at  Liverpool, 
and  the  receipt  in  London.  [Pollock,  C.  B.  TJie  <pi(-tiun  i.if  accept- 
ance and  actual  receipt  of  goods  is  one  for  the  jury  j  and  if  they  find 
that  the  transaction  amounts  to  an  acceptance  and  actual  receipt,  the 
c'ourt  are  bound  by  their  finding.]  Secondly,  the  property  in  the  goods 
passed  to  the  defendants.  It  was  formerly  considered  that  if  any  thing 
remained  to  be  done  to  the  goods  for  the  purpose  of  ascertaining  the 
price,  such  as  weighing,  measuring,  or  testing  the  goods,  until  that  was 
done  the  property  did  not  pass.  That  doctrine  was  adopted  from 
the  civil  law,  by  which  the  property  in  goods  did  not  pass  unless 
the  sale  was  for  an  ascertained  price  in  money.  But  all  the  authorities 
on  the  subject  were  reviewed  in  Turley  v.  Bates,-  where  it  was  held 
to  be  a  question  of  intention ;  and  that  although  something  remained 
to  be  done  by  the  buyer,  the  property  passed  if  it  appeared  by  the  • 
terms  of  the  contract  that  it  was  the  intention  of  the  parlies  that 
it  should  pass.  Here  it  is  clear  that  when  the  parties  agreed  upon 
the  purchase  and  sale  of  the  four  specific  stacks  of  cotton  waste  they 
intended  that  the  property  in  them  should  pass.  Simmons  v.  Swift ' 
proceeded  on  the  ground  that,  as  by  the  terms  of  the  contract  it  was 
necessary  that  the  goods  should  be  weighed  in  order  to  ascertain  the 
price,  the  seller  could  not  before  that  was  done  maintain  an  action  for 
Sfoods  sold  and  delivered. 

Brett  and  T.  Jones  in  support  of  the  rule.  There  was  no  evidence 
of  a  contract  binding  on  the  defendants  within  the  17th  section  of 
the  Statute  of  Frauds.  There  being  no  part  payment,  or  any  note 
in  writing  of  the  bargain,  the  plaintiff"  can  only  succeed  by  proving 
an  accejttance  and  actual  receipt  of  part  of  the  goods.  In  Bill  v. 
Bament,*  Parke,  B.,  said:  "Then  to  take  the  case  out  of  the  17th 
section,  there  must  be  both  delivery  and  acceptance ;   and  the  ques- 

1  1  B.  &  S.  299.  2  2  II.  &  C.  200. 

3  5  B.  &  C.  857.  «  9  M.  &  W.  36. 


702  KERSHAW   V.    OGDEN.  [CHAP.  II. 

tion  is  whether  they  have  been  proved  in  the  present  case.  I  think 
they  have  not.  I  agree  that  there  was  evidence  for  the  jury  of  accept- 
ance or  rather  of  inten,ded  acceptance.  The  direction  to  mark  the 
goods  was  evidence  to  go  to  the  jury  quo  animo  the  defendant  took 
possession  of  them ;  so  also  the  receipt  was  some  evidence  of  an  accept- 
ance. But  tliere  must  also  be  a  delivery  ;  and  to  constitute  that,  the 
possession  mitst  have  been  parted  with  by  the  owner,  so  as  to  deprive 
him  of  the  right  of  lien."  Here  there  was  neither  a  delivery  nor  an 
acceptance.  [Martin,  B.  The  defendants'  men  packed  the  waste  in 
their  sacks,  put  them  into  their  cart,  and  took  them  away.]  There 
may  be  acceptance  without  an  actual  receipt,  and  a  receipt  without 
an  actual  acceptance ;  but  the  statute  requires  both.  The  men  who 
packed  the  waste  were  not  the  defendants'  agents  to  accept  it,  and 
when  it  arrived  at  the  defendants'  premises  they  sent  it  back.  Sup- 
pose the  defendants  had  become  bankrupt,  would  the  plaintiff  have 
lost  his  lien?  In  Castle  v.  Sworder^  it  was  agreed  that  the  goods 
should  remain  in  the  Avarehouse  of  the  sellers,  so  that  they  held  them 
as  warehousemen  for  the  buyer.  In  Cusack  v.  Robinson,^  there  was 
such  a  parting  with  the  possession  of  the  goods,  as  to  put  an  end  to 
the  rights  of  the  plaintiffs  as  unpaid  vendors. 

Pollock,  C.  B.  I  am  of  opinion  that  the  rule  ought  to  be  dis- 
charged. I  think  this  case  is  not  distinguishable  in  principle  ftom 
Turley  v.  Bates ;  ^  and  that  it  was  a  question  for  the  jury,  what  was 
the  character  of  the  transaction,  —  the  delivery  of  the  goods  to  the  de- 
fendants, the  packing  and  removing  them  in  the  defendants'  cart  to 
their  premises,  and  when  they  were  returned  to  the  plaintiff,  his  re- 
placing them  in  his  warehouse.  The  jury  have  decided,  as  the  result 
of  all  those  ficts,  that  there  was  an  acceptance  and  actual  receipt  of 
the  goods  by  the  defendants ;  and  I  own  I  see  no  reason  to  question 
the  propriety  of  their  finding.  In  my  opinion  the  direction  of  the 
learned  judge  was  perfectly  right ;  and  as  he  is  not  dissatisfied  with 
the  verdict,  the  rule  must  be  discharged. 

I  may  add  that  my  brother  Bramwell,  so  far  as  the  argument  had 
proceeded  when  he  left  the  court,  was  of  the  same  opinion. 

Maktin,  B.  I  am  also  of  opinion  that  the  rule  ought  to  be  dis- 
charged. The  question  depends  upon  what  was  the  contract,  and  the 
jury  have  found  that  it  was  a  contract  to  buy  four  stacks  of  cotton 
waste  specifically  agreed  on,  more  or  less,  taking  them  for  better  or 
worse.  If  that  finding  is  correct,  of  which  I  entertain  no  doubt,  the 
result  is  that  the  property  in  the  four  stacks  passed  to  the  defendants, 
and  the  plaintiff  became  entitled  to  recover  the  price  in  an  action  for 
goods  bargained  and  sold.  The  17th  section  of  the  Statute  of  Frauds 
requires  that  there  shall  be  an  acceptance  and  actual  receipt  of  part  of 

1  6  H.  &  N.  828.  2  1  B.  &  S.  299.  3  2  H.  &  C.  200. 


SECT.  II.]  WARD   V.    SHAW.  703 

the  goods.  Here  the  defendants  sent  tlieir  packer  to  pack  the  goods 
and  their  cart  to  bi-ing  them  away ;  and  the  moment  they  were  put 
into  their  cart  and  taken  away,  if  not  before,  there  was  evidence  for  the 
jury  of  an  acceptance  and  actual  receipt ;  and  if  they  had  found  that 
there  was  none,  I  shouhl  have  been  prepared  to  set  aside  the  verdict 
as  against  the  evidence.  Hule  discharged. 

WARD  V.  SHAW.  )ZX'^^^7f^^ /^  ^cf    <^  ^ 
Supreme  Court  of  New  York,  July  Term,  1839.^^7    '^ 

[Reported  in  1  Wendell ,  iOi.]  y/   > 


Error  from  the   Superior   Court  of  the  city  and  county  of  New  ^i__^ 

York.     Ward  sued  Shaw  in  an  action  of  trover  for  two  oxen,  being  fat 
cattle,  taken  by  him  as  sheriff  out  of  the  possession  of  one  Crawbuck, 
by  virtue  of  an  execution  in  favor  of  one  Piatt.     The  oxen  came  into 
the  possession    of  Crawbuck  under  these  circumstances :   he  was   a  \ 
butcher  and  agreed  to  purchase  them  of  Ward   at   $7.50   for   each 
cwt.,  which  the  quarters  should  weigh  when  slaughtered,  he  to  take  i    v  ^ 
the  cattle  into  his  possession,  prepare  them  for  slaughtering,  slaughter  \ 
them  in  the  Aveek  in  which  the  contract  was  made,  and  when  slaugh-  * 
tered  take  the  quarters  to  market,  weigh  them,  and  pay  for  the  cattle 
the  amount  the  weight  of  the  quarters  would  come  to  at  87.50  for  each 
cwt.,  Avhich  sum  was  to  be  received  by  Ward  in  full,  as  well  of  all 
other  parts  of  the  cattle  as  the  quarters.     Crawbuck  took  the  cattle 
into  his  possession,  and  on  the  same  day  they  were  levied  upon  under 
Piatt's  execution,  which  was  issued  on  a  judgment  obtained  previous  ^ 

to  the  contract  between  Ward  and  Crawbuck,  and  taken  away.     On    ,    •',  ^« 
the  trial  of  the  cause,  the  presiding  judge  charged  the  jury,  that  the  |  '^  i)  i 
contract  between  Ward  and  Crawbuck,  and  the  delivery  of  the  cattle        '  ^  [^ 
to  Crawbuck  vested  the  title  and  ownership  in  Crawbuck,  and  that  they    ^'^^y 
were  subject  to  the  execution.     The  plaintiff  excepted  to  the  decision.    /^^ 
The  jury  found  for  the  defendant,  and  the  Superior  Court  refused  on    1/*         ^ 
motion  to  set  aside  the  verdict  (Mr.  Justice  Oakley  dissenting).    The     ///-^ 
plaintiff  sued  out  a  writ  of  error. 

S.  P.  Staples,  for  plaintiff  in  error. 

J.  0.  Grim  and  J.  B.  Whiting  for  defendant  in  error. 

By  the  court.  Savage,  C.  J.  The  question  is  whether  Crawbuck 
had  an  interest  in  the  cattle  which  could  be  sold  on  execution.  The 
sheriff  and  the  plaintiff  in  the  execution  are  possessed  of  the  rights  of 
Crawbuck  and  no  more.  Had  Crawbuck  sold  the  cattle  to  a  purchaser 
for  valuable  consideration,  without  notice  of  the  terms  on  which  he 


704  WARD    V.    SHAW.  [CHAP.  II. 

possessed  them,  other  considerations  might  prevail ;  but  in  this  case 
no  new  credit  has  been  given  to  Crawbuck  in  consequence  of  his  hav- 
ing the  cattle  in  his  possession.  Piatt's  debt  accrued  antecedent  to 
the  transaction  in  question,  and  of  course  was  not  contracted  upon 
the  credit  of  this  property.  If  he  fails,  he  is  in  no  worse  situation  than 
he  was  before  the  sale  of  the  oxen. 

The  question,  then,  is  one  between  vendor  and  vendee,  and  as  be- 
tween them  certain  principles  have  been  settled.     1.  Where  no  credit  is 
agreed  to  be  given  for  the  price  of  an  article  sold,  the  payment  and 
delivery  are  concurrent  acts.     The  vendor  may  refuse  to  deliver  with- 
out payment ;  but  if  he  does  deliver  freely  and  absolutely,  and  with- 
out any  fraud  on   the  part  of  the  vendee,  the  condition  of  payment 
simultaneously  with  the  delivery  is  waived;   confidence  is  reposed, 
credit  is  given,  and  the  property  passes.     This  was   so   decided   in 
Chapman  v.  Lathrop,  6  Cowen,   110,  -and  is  supported  by  the  cases 
there  cited,  4  Mass.  405,  5  T.  R.  231,  and  also  by  Harris  v.  Smith,  3 
Serg.  &  Rawle,  20,  24,  and  by  Chancellor  Kent,  2  Kent's  Com.  391. 
But  where   part    only  of  the  property  has    been  delivered,  without 
demanding   compliance  with   the   condition,   the  vendor   may  refuse 
to  deliver  the  residue  until  performance  of  the  condition.     1  Camp. 
427.     2.  If  the  vendor  deliver  the  goods,  accompanied  with  a  declar- 
ation that  he  does  not  consider  them   sold   until  payment  is   made, 
according  to  a  previous  contract,  the  sale  is  conditional,  and  the  prop- 
erty does  not  pass  by  the  delivery  as  between  the  parties  to  the  sale. 
4  Mass.  405;  17  id.  606.     Two  things  are  essential  to  the  transfer  of 
the  title  to  personal  property  upon  a  cash  sale :  payment  by  the  ven- 
dee, and  actual  or  constructive  delivery  by  the  vendor.     The  first  may 
be  waived  by  the  vendor,  and  the  cases  above  cited  show  that  an  abso- 
lute delivery  is  such  waiver,  but  that  a  delivery  subject  to  the  condi- 
tion of  payment  is  not.     3.  It  is  also  a  settled  principle,  that  where 
any  thing  remains  to  be  done  by  the  vendor  before  the  article  is  to  be 
delivered,  the  right  of  property  has  not  passed.     So  in  the  case  of 
Hanson  v.  Meyer,  6  East,  615,  where  a  quantity  of  starch  was  con- 
tracted to  be  sold  at  a  certain  price  per  hundred,  the  vendor  gave  the 
vendee  an  order,  addressed  to  the  keeper  of  the  warehouse  Avhere  the 
starch  lay,  directing  him  to  weigh  and  deliver  all  his  starch,  it  was  held 
that  the  property  did  not  pass  before  the  weighing,  which  was  to  pre- 
cede the  delivery  and  to  ascertain  the  price.     The  language  of  Lord 
Ellenborough  in  that  case  is  applicable  here:  "By  the  terms  of  the 
bargain,  two  things,  in  the  nature  of  conditions  or  preliminary  acts, 
necessarily  preceded  the  absolute  vesting  in  them  (the  purchasers)  the 
property  contracted  for.     The  first  of  them  is  one  which  does  so  ac- 
cording to  the  generally  received  rule  of  law  in  contracts  of  sale;  to. 
wit,  the  payment  of  the  price  or  consideration  for  the  sale.     The  sec- 
ond, which  is  the  act  of  weighing,  does  so  in  consequence  of  the  par- 


SECT.  II.]  WARD    V.    SHAW.  705 

ticular  terms  of  this  contract,  by  which  tlie  price  is  made  to  depend 
upon  the  weight.  The  weiglit  tlierefore  must  be  ascertained,  in  order 
that  the  price  may  be  known  and  paid."  Vide  Outwater  v.  Dodge,  7 
Cowen,  86. 

The  sale  being  for  cash,  and  by  weight,  the  vendor  is  not  bound  to 
deliver  until  payment  is  made.  Payment  cannot  be  made  until  the 
price  is  ascertained  ))y  the  act  of  Avcighing.  Should,  therefore,  tlie 
vendee  refuse  to  slaugliter  the  oxen  according  to  contract,  and  put 
them  to  work  on  a  farm,  the  vendor  may  retake  them.  Should  lie  re- 
fuse to  pay,  after  weighing  the  quarters,  the  oAvner  may  take  posses- 
sion of  his  slaughtered  cattle,  for  the  property  has  not  passed  under 
such  a  contract,  until  payment  is  made  or  waived.  The  terms  of  the 
contract  in  this  case  forbid  the  idea  of  a  waiver  of  j^ayment  when  the 
cattle  were  delivered  to  be  prepared  for  slaughter.  The  rule  laid  down 
in  Hanson  v.  Meyer  is,  that  the  property  does  not  pass  when  any  thing 
remains  to  be  done  by  the  vendor ;  when  the  tiling  to  be  done  is 
necessary  to  ascertain  the  price,  and  the  sale  is  for  cash,  it  can  make 
no  difference  whether  that  thing  is  to  be  done  by  the  vendor  or  vendee. 
The  property  is  not  to  pass  till  payment ;  the  price  must  precede  the 
payment,  and  until  tlie  price  is  ascertained,  payment  cannot  be  made 
or  waived,  unless  by  express  terms ;  the  acts  of  the  vendor  cannot  be- 
fore that  time  be  construed  into  a  waiver. 

This  case  is  unlike  most  of  the  English  cases,  where  the  property 
was  in  a  warehouse  of  a  third  person.  I  put  the  case  upon  its  own 
circumstances  ;  the  delivery  was  for  a  special  purpose,  not  an  absolute 
delivery  to  the  vendee  as  such,  but  rather  as  bailee.  There  was  an  act 
to  be  done  to  ascertain  the  price.  In  general,  the  act  of  weighing  or 
measuring  is  to  be  done  by  the  seller,  but  parties  have  a  right  to  stip- 
ulate that  the  purchaser  shall  do  such  act.  It  is  sufficient  that  the 
vendor  has  an  interest  in  the  act  to  be  done,  and  has  a  right  to  be 
present ;  when  the  Aveiglit  is  ascertained,  then,  and  not  before,  can  the 
vendor  demand  payment.  If  payment  is  then  made  or  waived,  the 
property  passes  absolutely,  otherwise  not.  If  I  am  correct  in  this  view 
of  the  case,  Crawbuck  had  no  interest  in  the  cattle  which  could  be  soM 
on  Piatt's  execution.  I  am  of  opinion,  thPi'cfore,  that  the  court  below 
erred,  and  that  tlie  judgment  must  bo  reversed  ;  a  venire  de  novo  to 
issue  by  that  court,  and  the  costs  to  abide  the  event. 


i       '\^^  7,06  V  V       A  "^\\jSeRRY    v/ WHEELER.  [CHAP.  II. 

\y'    \J^l  (^     V^     \^      TERRY  V.  WHEELER. 
y    \y\    New  York  Court  of  Appeals,  December  Term,  1862. 

[Repotted  in  25  New  York  Reports,  520.] 

Appeal  from  the  Supreme  Court.  Action  by  the  assignee  of  Lewis 
Elmore,  to  recover  the  price  paid  for  a  quantity  of  lumber,  purchased 
fs  by  Elmore  of  the  defendant,  at  his  lumber  yai"d  in  Troy,  which  the 
^  defendant  agreed  but  failed  to  deliver  at  the  railroad  in  Troy.  The 
s^  defendant  denied  his  liability,  on  the  ground  that  the  title  to  the  prop- 
's erty  vested  in  Elmore  at  the  time  of  the  sale ;  and  that  the  property 
N  was  destroyed  by  fire  immediately  after  the  sale,  without  fault  on  his 
W  part.     The  cause  was  tried  before  the  court,  which  found  the  following 

v>  facts :  — 
^  s.  1.  That  on  the  24th  of  August,  1854,  the  defendant  sold  to  Lewis 

.^  Elmore,  by  a  written  bill  of  sale,  a  quantity  of  lumber  of  the  character, 

*>  at  the  price,  and  upon  the  terms  set  forth  in  the  bill  of  sale,  and  that 

^  payment  therefor  was  made  as  stated  in  said  bill. 
^  The  bill  of  sale  was  as  follows :  — 

I 

Troy,  N.  Y.,  August  24,  1854. 

Mr.  Lewis  Elmore, 

Bought  of  E.  B.  Wheeler. 
l^  (Terms  :  Three  montbs  from  date  of  sale.) 

4,160  feet  clear  pine  $34 $141.44 

4,  779    „      4       „        24 114.69 

7,319    „     box     „       20 146.38 

<|  Inspection        2.03 

600  piece  boards  17c 102.00 

$506.54 

Cr. 

By  deduction  for  cash        5.00 

Aug.  25.         By  cash       • 250.00 

Yournote  due  Nov.  28     ....       251.54 

$506.54 

Rec'd  payment  as  above, 

E.  B.  Wheeler,  per  Wm.  A.  Craig. 
To  be  delivered  to  the  cars  free  of  charge. 
^«*^,«..,.,,,^^«=^-^.-----  E.  B.Wheeler.     Craig. 

2.  That  after  such  sale  and  payment,  and  after  delivery  of  said  bill 
of  sale,  and  in  the  afternoon  of  the  same  day,  the  memorandum  there- 
upon, as  follows,  "  to  be  delivered  to  the  cars  fi-ee  of  charge  "  was  in- 
dorsed and  signed  by  the  clerk  of  the  defendant.     Whether  this  was 


SECT.  II.]  TERRY   V.   WHEELER.  707 

done  by  the  authority  of  the  defendant,  or  whether  the  defendant  then 
recognized  its  purport  as  a  part  of  the  original  agreement,  the  court 
held  it  not  necessary  to  decide,  the  pai'ol  evidence  being  held  compe- 
tent and  sufficient  on  that  point. 

3.  That  the  lumber  so  sold  was,  at  the  time  of  sale  upon  the  de- 
fendant's yard,  at  the  city  of  Troy,  and  had  been  inspected  and  meas- 
ured ;  that  the  three  first  items  named  in  the  bill  constituted  one 
separate  pile  designated  as  the  lumber  sold  to  Elmore  ;  and  as  to  the 
remaining  item,  viz.,  600  pieces,  these  were  to  be  taken  from  the  top 
of  another  pile  containing  more  than  that  number,  and  a  mark  was 
made,  showing  how  far  the  600  pieces  came  on  that  pile. 

4.  That  the  note  mentioned  in  the  bill  of  sale  Avas  transferred  by 
the  defendant  before  maturity,  and  paid  by  Elmore  before  his  assign- 
ment to  the  plaintiff. 

5.  That  the  lumber  so  sold  was  on  the  same  day  of  the  sale,  and 
within  a  few  hours  thereaftei-,  and  before  the  removal  of  any  part 
thereof,  and  without  any  ftiult  or  delay  on  the  part  of  the  defendant, 
accidentally  consumed  by  tire. 

6.  That  at  the  time  of  the  written  contract  of  sale,  and  as  a  part  of 
the  agreement  for  sale,  the  defendant  stipulated  by  parol  to  deliver 
said  lumber  at  the  railroad  free  of  charge,  no  time  for  such  delivery 
being  specified. 

7.  That  Elmore,  on  March  1st,  1855,  assigned  to  the  plaintiff  the 
cause  of  action  for  which  this  suit  was  brought. 

The  court  also  decided,  that  upon  the  question  of  an  agreement  to 
deliver  the  lumber,  there  was  no  conflict  of  evidence  ;  that  the  testi- 
mony of  the  defendant  and  his  witnesses  upon  that  point  was  substan- 
tially to  the  same  effect  as  the  testimony  of  Elmore.  And,  although 
requested,  the  court  declined  to  consider  the  evidence  upon  that  point 
as  conflicting,  or  to  pass  upon  the  credibility  of  any  or  either  of  the 
witnesses. 

And  the  court  decided  that,  as  the  lumber  sold  was  to  be  delivered 
by  the  defendant  and  was  not  delivered  by  him,  he  was  liable  to  the 
plaintiff,  and  on  that  ground  judgment  was  rendered  in  fiivor  of  the 
plaintiff  for  the  amount  claimed. 

The  defendant's  counsel  excepted  to  each  and  every  of  the  find- 
ings of  fiict  and  conclusions  of  law  by  the  court,  and  to  the  refusal  to 
examine  and  decide  upon  the  credibility  of  witnesses. 

After  the  introduction  of  .the  bill  of  sale  by  the  plaintiff,  on  the 
trial,  the  defendant's  counsel  moved  that  the  parol  evidence  in  regard  to 
the  sale  should  be  stricken  out,  on  the  ground  that  the  bill  of  sale  was 
the  contract,  and  parol  evidence  was  not  admissible  to  contradict  it. 
The  motion  was  denied,  on  the  ground  that  the  agreement  to  deliver 
need  not  be  put  in  the  bill,  and  that  parol  evidence  on  that  subject  was 
competent  and  did  not  disagree  wuth  it.  To  this  decision  an  excep- 
tion was  taken. 


708  TERRY   V.    WHEELER,  [CHAP.  II. 

The  Supreme  Court  at  general  term  affirmed  the  judgment,  and  the 
defendant  brought  this  apjDeal. 

William  A.  Beach,  for  the  appellant. 

William  L.  Learned,  for  the  respondent. 

Selden,  J.  There  may  be  some  doubt  whether  the  parol  evidence 
in  regard  to  the  agreement  to  deliver  the  lumber  was  admissible,  but 
if  it  were  necessary  to  decide  that  question,  I  should  regard  it  as 
admissible  on  the  ground  that  what  is  called  the  bill  of  sale  was  in 
substance  a  mere  receipt  for  the  purchase-money,  and  did  not  purport 
to  be  a  contract.  Dunn  v.  Hewitt,  2  Denio,  637  ;  Blood  v.  Harring- 
ton, 8  Pick.  552  ;  Filkins  v.  Whyland,  24  :N'.  Y.  338.  If  the  lumber  had 
not  been  paid  for,  and  the  instrument,  omitting  the  receipt,  had  been 
signed  by  the  defendant  and  delivered,  as  a  note  or  memorandum  of 
the  sale,  it  would  then  have  been  the  evidence  of  a  contract  executory 
on  one  part  at  least,  and  not  open  to  explanation  by  parol.  But  look- 
ing at  the  whole  instrument,  I  think  it  is  to  be  regarded  as  a  receipt, 
and  not  a  contract  within  the  cases  above  cited.  Of  course,  in  this 
view,  the  memorandum  at  the  foot  of  the  bill  is  not  regarded  as  a  part 
of  it;  if  it  were,  its  character  would  be  changed  from  a  receipt  to  an 
executory  contract,  conclusive  upon  the  pai'ties,  except  so  far  as  it 
was  still  a  receipt.     Egleston  v.  Knickerbacker,  6  Barb.  458. 

The  point  which  is  made  upon  the  contradictory  character  of  the 
evidence  in  relation  to  the  contract  to  deliA^er  the  lumber  on  the  cars, 
and  its  sufficiency  to  establish  such  contract,  presents  only  a  question 
of  fact,  which  this  court  cannot  review.  Where  the  finding  of  a  court 
or  referee  upon  a  question  of  fact  is  ambiguous,  the  evidence  may  be 
referred  to  for  the  purpose  of  removing  the  ambiguity,  but  not  to  re- 
verse or  modify  a  distinct  finding,  or  to  establish  an  independent  fact 
not  found.  19  K  Y.  210  ;  21  id.  550 ;  22  id.  324 ;  23  id.  344.  We 
can  no  more  review  the  decision  of  the  court,  that  the  testimony  was 
not  conflicting,  than  we  can  the  conclusion  that  it  was  sufficient ;  and 
we  can  do  neither  Avithout  making  a  precedent  which  would  open  to 
review  here  the  details  of  the  evidence  in  all  cases. 

But  in  the  view  Avhich  I  take  of  the  remaining  question,  it  becomes 
immaterial  whether  there  was  a  contract  to  deliver  at  the  cars  or  not. 
The  lumber  had  not  been  actually  delivered,  but  remained  in  the  pos- 
session of  the  vendor.  In  the  absence  of  any  express  contract  to 
deliver,  there  was  an  implied  one  to  deliyer  at  the  yard  of  the  vendor, 
when  called  for.  In  either  case  the  lumber  did  not  remain  at  the  risk 
of  the  vendor,  if  the  title  did  not  remain  in  him.  The  risk  a,ttends_ 
upon  the  title,  not  uj)on  the  possession,  where  there  is  no  special  agree- 
^^^^nt  upon  the  subject.  Tarling  v.  Baxter,  6  B.  &  C.  360  ;  Willis  v. 
Willis,  6  Dana,  49 ;  Hinde  v.  Whitehouse,  7  East,  558 ;  Joyce  v. 
Adams,  4  Seld.  296 ;  2  Kent's  Com.  492,  496 ;  Noy's  Maxims,  88.  I 
entertain  no  doubt  that,  upon  the  facts  found  in  this  case,  the  title  was 


SECT.  II.]  TERRY    V.    WHEELER.  709 

in  the  vendee.  Tlie  lumber  Avas  selected  by  both  parties  and  desig- 
nated as  the  lumber  sold  to  Elmore,  except  the  GOO  pieces,  which  were 
selected  by  the  parties,  and  the  precise  pieces  sold  designated  with  as 
much  precision  as  if  the- purchaser  had  marked  every  piece  witli  his 
name.  That  which  was  sold  by  measurement  was  inspected  and 
measured,  and  the  quantity  ascertained  ;  the  jjrice  for  the  whole  Avas 
agreed  upon  and  paid,  and  a  bill  of  parcels  receipted  and  delivered  to 
the  purchaser.  These  facts,  I  think,  vested  the  title  in  the  purchaser, 
notwithstanding  the  agreement  of  the  seller  to  deliver  the  IuihI^lt  free 
ofcharge  at  the  cars.  "  The  sale  of  a  specific  cliattel  passes  the  proj)- 
erty  therein"  to  the  vendee,  without  delivery."  Chitty  on  Contr.,  8th 
Am.  ed.,  j).  332.  "  It  is  a  general  rule  of  the  common  law  that  a  mere 
contract  for  the  sale  of  goods,  where  nothing  remains  to  be  done  by 
the  seller  before  making  delivery,  transfers  the  right  of  property, 
although  the  price  has  not  been  paid,  nor  the  thing  sold  delivered  to 
the  purchaser."  Olyphant  v.  Baker,  5  Denio,  382.  The  authorities  are 
numerous,  where  the  expression  is  used  that  if  any  thing  remains  to  be 
done  by  the  seller,  the  title  does  not  pass  ;  but  the  cases  which  are 
referred  to  to  sustain  that  position,  only  go  the  length  of  showing  that 
where  something  is  to  be  done  by  the  seller  to  ascertain  the  identity, 
quantity,  or  quality  of  the  article  sold,  or  to  put  it  in  the  condition 
which  the  terms  of  the  contract  require,  the  title  does  not  i)ass.  2 
Kent's  Com.  496 ;  Hanson  v.  Myer,  6  East,  C14  ;  Simmons  v.  Swift,  5 
B.  &  C.  857  ;  Joyce  v.  Adams,  4  Seld.  291 ;  Field  v.  Moore,  Lalor's 
Sup.  418.  The  list  of  cases  to  this  effect  might  be  indefinitely  in- 
creased ;  but  no  case  has  been  referred  to  by  counsel,  nor  have  I  dis- 
covered any,  in  which,  where  the  article  sold  was  perfectly  identified 
and  paid  for,  it  Avas  held  that  a  stipulation  of  the  seller  to  deliver  at  a 
particular  place  prevented  the  title  from  passing.  If  the  payment  Avas 
to  be  made  on  or  after  delivery,  at  a  particular  place,  it  might  fairly 
be  inferi-ed  that  the  contract  Avas  executory,  until  such  delivery  ;  but 
where  the  sale  appears  to  be  absolute,  the  identity  of  the  thing  fixed, 
and  the  price  for  it  paid,  I  see  no  room  for  an  inference  that  the  prop- 
erty remains  the  seller's,  merely  because  he  has  engaged  to  transport 
it  to  a  given  point.  I  think  in  such  case  the  property  passes  at  the 
time  of  the  contract,  and  that  in  carrying  it  the  seller  acts  as  bailee 
and  not  as  oAvner.  The  questions  Avhich  arise  in  such  cases,  as  to  sales, 
are  questions  of  intention,  such  as  aiise  in  all  other  cases  of  the  inter- 
pretation of  contracts  ;  and  Avhen  the  focts  are  ascertained,  either  by 
the  Avritten  agreement  of  the  ])arties  or  by  the  findings  of  a  court,  as 
they  are  here,  they  are  questions  of  laAV.  That  the  parties  to  the  con- 
tract in  this  case  intended  to  pass  the  title  to  the  lumber  immediately, 
appears  very  clear  ;  nor  do  I  suppose  that  any  one  Avould  question  it, 
were  it  not  for  the  ap])arent  hardship  of  the  case  to  the  purchaser.  If 
the  property,  instead  of  being  lumber,  had  been  sheep  or  coavs  capable 
VOL.  I.  46 


710  BISHOP    V.    SHILLITO.  [CHAP.  II. 

of  increase  (which  follows  the  ownership),  and  there  had  been  a  sud- 
den and  large  increase  to  the  flock,  or  drove,  before  they  could  be 
delivered  at  the  point  agreed  upon,  I  think  no  one  would  have  said 
that  the  defendant  could  have  discharged  his  obligation  to  deliver,  and 
yet  retained  the  increase.  Such,  however,  must  be  the  conclusion,  if 
the  plaintiff's  position  is  maintained.  The  judgment  should  be  re- 
versed and  a  new  trial  granted. 
All  the  judges  concurring, 

Judgment  reversed  and  new  trial  ordered. 


<f 


SECTION   III. 

/Sales  of  /Specific  Goods,  conditional  upon  paying  or  securing  the 

price. 

BISHOP  V.   SHILLITO. 
In  the  Iung's  Bench,  Hilary  Term,  1819. 

\Iieported  in  2  Barneicall  Sf  Alderson,  329,  n.  (a).] 

Trover  for  iron.  The  iron  was  to  be  delivered  under  a  contract 
that  certain  bills  outstanding  against  the  plaintiff  should  be  taken  out 
of  circulation.  After  a  part  of  the  iron  had  been  delivered,  and  no 
bills  had  been  taken  out  of  circulation,  the  plaintiff  stopped  the  fixrther 
delivery,  and  brought  trover  for  Avhat  had  been  delivered.  Scarlett, 
for  defendant,  contended  that  ti'over  would  not  lie,  and  that  the  only 
remedy  for  the  plaintiff  was  to  bring  an  action  for  the  breach  of  the 
contract  by  the  defendant.  But  the  Court  held  that  this  was  only  a 
conditional  delivery,  and  the  condition  being  broken,  the  plaintiff 
might  bring  trover.  Abbott,  C.  J.,  said  he  had  left  it  to  the  jury  to 
say,  whether  the  delivery  of  the  iron  and  the  redelivery  of  the  bills, 
were  to  be  contemporary,  and  that  the  jury  found  that  fact  in  the 
affirmative ;  and  Bayley,  J.,  added,  that  if  a  tradesman  sold  goods  to 
be  paid  for  on  delivery,  and  his  servant  by  mistake  delivers  them  with- 
out receiving  the  money,  he  may,  after  demand  and  refusal  to  deliver 
or  pay,  bring  trover  for  his  goods  against  the  purchaser. 


SECT.  III.]  BDSSEY    V.    BARNETT.  711 


BUSSEY  V.  BARNETT. 

In  the  Exchequer,  January  14,  1842. 

[Reported  in  9  Meeson  S,-  Welsby,  312.] 

Deut  for  goods  sold  and  delivered,  and  on  an  account  stated.  The 
particulars  of  demand  claimed  the  sum  of  3^.  5s.  M.,  being  the  balance 
of  an  account  for  goods  sold  and  delivered  by  the  plaintift*  to  the 
defendant.  Pleas,  except  as  to  the  sum  of  45.  6f?.,  parcel,  <fec.,  7iurv- 
quam  iyidebitatus  ;  as  to  that  sum,  a  tender,  wliich  was  denied  by  the 
replication.  At  the  trial  before  the  under-sheriff  of  Middlesex,  it 
appeared  that  the  action  was  brought  to  recover  an  alleged  balance  of 
a  disputed  account  for  goods  bought  by  the  defendant,  for  ready 
money,  at  the  plaintift*'s  shop.  The  defendant  produced  evidence  to 
prove  that,  within  ten  minutes  after  the  delivery  of  the  goods  at  his 
house,  he  paid  for  them  in  full,  with  tlie  exception  of  the  4«.  6(7.,  as  to 
which  the  tender  was  pleaded.  It  Avas  objected  for  the  plaintiff,  that 
it  was  not  competent  to  the  defendant  to  give  evidence  of  this  pay- 
ment, there  being  no  jilea  of  i)ayment  on  the  record ;  but  the  under- 
sheriff  thought  that,  under  the  circumstances,  no  debt  ever  arose 
between  the  parties,  and  therefore  the  evidence  was  admissible  under 
the  plea  oinunquam  indebitatus,  and  he  accordingly  received  it ;  and 
the  tender  being  also  proved  to  the  satisfiiction  of  the  jury,  the  defend- 
ant had  a  verdict  on  both  issues. 

C.  Jones  now  moved  for  a  new  trial,  on  the  ground  of  misdirection, 
and  contended  that  tlie  defence  was  inadmissible  without  a  plea  of 
payment.  [Alderson,  B.  The  j)lea  of  nwiqitam  iud'bifafxs  means 
that  there  never  was  a  sale  ofgood^s  to  the  defendant  on  credit.  This 
was  a  mere  exchange  of  goods  for  money,  and  o  dvht  never  arose. 
Lord  Abinger,  C.  B.  There  was  no  contract  whereby  the  defendant 
became  indebted  to  the  plaintiff.]  In  Goodchild  v.  Pledge,^  where  to  a 
count  in  debt  for  £-20  for  goods  sold  and  delivered,  the  defendant 
pleaded  that  before  the  commencement  of  the  suit,  and  when  the  said 
sura  of  £20  became  due  and  payable,  to  wit,  on,  &c.,  the  defendant 
paid  the  plaintiff  the  said  sum  of  £20,  according  to  the  defendant's 
said  contract  and  liability ;  this  plea  was  held  bad  on  demurrer  for 
concluding  to  the  country,  and  not  Avith  a  verification  ;  and  Parke,  B., 
there  says,  "The  moment  the  goods  are  delivered,  is  there  not  a  cause 
of  action,  throwing  the  proof  of  its  discharge  on  the   defendant'?'* 

1  M.  &  W.  363. 


712  TYLER   V.   FREEMAN.  [CHAP.  11. 

And  he  adds,  "  The  new  general  issue,  that  the  defendant  never  was 
indebted,  that  is,  at  no  instant  of  time,  was  framed  for  the  express  pur- 
pose of  making  all  these  defences  pleadable  by  way  of  discharge." 
[Aldekson,  B.  What  the  learned  judge  there  means  is,  that  the 
moment  goods  are  delivered  on  credit,  a  contract  arises  whereby  the 
defendant  becomes  indebted.  No  doubt  that  was  a  proper  case  for  a 
plea  of  payment.]  This  was  a  defence  in  the  nature  of  confession  and 
avoidance. 

LoKD  Abinger,  C.  B.  In  this  case  the  goods  were  not  delivered 
upon  a  contract  out  of  Avhich  a  debt  arose ;  there  was  no  promise  to 
pay,  but  immediate  payment. 

Aldeeson,  B.     Where  there  is  a  contract  for  the  sale  and  delivery       I 
of  goods  for  "ready  money,  and  ready  money  is  paid,  there  is  no  debt. 

GuENEY,  B.,  concurred.  Bule  refused. 


I  JOHN    TYLER  v.   WATSON  FREEMAN. 

Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1849. 

t     Sr        I  [Reported  in  3  Gushing,  261.] 

Nu  This  was  an  action  of  replevin  for  fifteen  hogsheads  of  molasses,  and 

N       ^^^vas  submitted  to  the  court  upon  an  agreed  statement  of  facts,  from 
v>      V)  which  it  appeared,  that  the  plaintiif,  who  was  an  auctioneer,  on  the 
J     \  ^    11th  of  June,  1846,  sold  at  auction  for  Kettell  &  Collins,  on  the  wharf 
'^     Ni    opposite  tlieir  store,  sixteen  hogsheads  of  molasses,  which  were  pur- 
^   \a     chased  by  Davis,  Brown,  &  Company,  the  terms  of  sale  being  a  satis- 
^      factory  note  at  four  months,  or  three  per  cent  off  for  cash ;  that,  on  the 
day  of  the  sale,  the  plaintiff's  clerk  called  on  the  purchasers,  and  stated 
to  Davis,  one  of  the  firm,  that  their  note  would  not  be  satisfactory,  and 
was  answered  by  Davis  that  it  would  be  time  enough  for  Kettell  & 
Collins  to  refuse  the  note  when  it  was  ofiered  to  them,  but  that  he  should 
comply  with  the  terms  of  the  sale  and  pay  cash  three  per  cent  off;  that 
after  this  promise,  and  on  the  same  day,  the  goods  were  delivered ; 
that  on  the  12th  of  June,  being  the  day  after  the  sale  and  delivery,  the 
bill  of  parcels  was  sent,  with  the  words,  "4  mos.  3  per  cent  off,"  writ- 
ten on  the  margin ;  that,  on  the  13th,  the  clerk  of  the  plaintiff  called  on 
the  purchasers  for  the  money,  and  was  told  by  Davis  that  he  would  see 
the  plaintiff  and  make  it  satisfactory;  that,  on  the  IGth,  fifteen  hogs- 
heads of  the  molasses  (one  having  been  sold)  Avere  taken  with  all  the 
stock  of  Davis,  Brown,  &  Company,  by  the  defendant,  as  a  deputy 
^heriff  on  an  execution  in  favor  of  Joseph  Brown ;   that  afterwards,  on 

J       1      1 


^ 


^ 
3       i 


SECT.  III.]       C0G6iLL   V.    HARTFORD    AND   NEW   HAVEN   R.R.    CO.  <  l^L        ^ 

the  day  of  the  seizure,  the  pLiintifF  sent  to  Davis,  Brown,  &  Company, 
to  get  the  mohisses,  and  was  informed  by  them  that  there  was  an  at- 
tacliment  on  it,  and  that  he  couki  not  have  it  without  a  writ  of  re- 
plevin ;  tliat,  on  the  20th  of  June,  the  fifteen  hogsheads  were  replevied  \ 
by  the  plaintiff,  a  formal  demand  thereof  having  been  previously  made ;  ^ 
that  the  plaintiff  liad  made  no  advances  on  the  molasses,  but  was  merely  \  s 
employed  to  sell  the  same  at  auction ;  and  that  it  was  customary,  in  ?\  ^ 
cash  sales,  to  deliver  the  goods  before  the  money  was  paid.  N^ 
W.  Dehon,  for  the  plaintiff.  >a  ''^j 
A.  B.  Ely  (with  Avhom  was  S.  Bartlett),  for  the  defendant.  ^  >v^ 
Metcalf,  J.  The  court  are  of  opinion  that  the  sale,  in  this  case,  \^  ^ 
was  conditional,  an<l  that  the  condition  was  not  waived  by  the  de-  ^  M 
livery,  nor  by  any  thing  afterwards  done  or  omitted  by.the  plaintiff.  ^  a 
In  Smith  v.  Dennie,  6  Pick.  262,  cited  by  the  defendant's  counsel  to  ^  4 
show  that  the  plaintiff's  delay  was  fotal  to  his  present  claim,  the  note  i^  V^ 
for  the  goods  sold  was  not  called  for  by  the  seller  until  eight  days  after  "^  ^ 
the  sale.  In  the  present  case,  the  plaintiff  followed  up  the  buyers,  4  ^ 
without  intermission,  until  the  property  was  seized  on  an  execution  v  \j  «^ 
against  them.  .  ^  }                                        Judyment  for  the xjlaintiff.  ^  v^ 

^     HENRY  COGGILL  and  Another  v.  HARTFORD  AND  NEW-  <^ 


HAVEN  RAILROAD   COMPANY.  '^ 

Supreme  Judicial  Court   of    Massachusetts,  September  Term, 

1854. 

\B£Tported  in  3  Gray,  545.] 

Replevin  of  fifteen  bags  of  wool.  At  the  trial  in  the  Court  of  Com- 
mon Pleas,  the  plaintiffs  proved  that  they,  through  a  broker  in  New  York, 
on  the  6th  of  March,  1851,  sold  the  wool  to  Earle  &  Thayer,  woollen 
manufacturers  at  South  Hadley  in  Hampshire  county ;  that  the  terms 
of  sale  were  the  note  of  Earle  &  Thayer,  payable  in  six  months:  that, 
on  the  13th  of  March,  the  wool  was  delivered  to  the  Western  Railroad 
Corporation,  directed  to  Earle  &  Thayer  at  Springfield,  and  duly 
arrived  at  Springfield  on  the  14th ;  that  Earle  &  Thayer  fiiiled  and  ^ 
stopped  business,  without  having  given  any  note  for  tlie  wool ;  and  the  ^  ^ 
plaintiffs,  on  the  27th  of  jVIarch,  demanded  the  wool  of  the  defendants, 
and  paid  them  all  claims  for  freight  thereon. 

To  meet  this  evidence,  the  defendants  offered  to  prove  that,  on  the 
20th  of  March,  Earle  &  Thayer  sold  this  wool  to  Kellogg  &  Co.  of      J     \' 

1  The  parts  omitted  related  to  other  questions.  —  Ed.  ^*^      ^ 


a?  ^  dt  ■/Cr^'^^  — 


714         COGGILL   V.    HARTFORD    AND   NEW   HAVEN  R.R.    CO.       [CHAP.   TI. 

Hartford,  who  advanced  money  thereon  to  Earle  &  Thayer,  and  had 
no  knoAvledge  or  notice  of  the  terms  of  the  sale  to  Earle  &  Thayer, 
or  of  whom  Earle  &  Thayer  purchased,  or  how  long  it  had  been  in 
their  possession ;  and  that  the  defendants  received  the  wool  of  Earle  & 
Thayer  to  be  carried  to  Kellogg  &  Co.  pursuant  to  the  sale  to 
them. 

But  Hoar,  J.,  instructed  the  jury  that  "  if  they  should  find  that  the 

sale  from  the  plaintifls  to  Earle  &  Thayer  was  a  conditional  one,  and 

that  nothing  had  been  done  by  the  plaintiffs  or  their  agent  to  indicate 

V\  a  waiver  of  the  condition,  or  a  consent  that  the  wool  should  be  de- 

V>    ,1 .,  livered  and  the  property  pass  without  tlie  immediate  return  of  the  note, 

'      '    '  and  if  there  had  been  no  laches  or  want  of  diligence  in  reclaiming  the 

property  when  it  was  found  that  the  note  did  not  come  back,  the  prop- 

.   erty  did  not  pass ;  and  the  facts  which  the  defendants  offered  to  prove 

would  not  constitute  a  defence." 

The  defendants  submitted  to  a  verdict  for  the  plaintiffs,  and  alleged 
exceptions  to  these  instructions. 

This  case  was  argued  and  decided  at  October  term,  1853. 
^.  W.  Bond,  for  the  defendants. 
M.  A.  Chapman  and  J.  WelU,  for  the  plaintiffs. 
BiGELOw,  J.     It  has  long  been  the  settled  rule  of  law  in  this  com- 
monwealth, that  a  sale  and  delivery  of  goods,  on  condition  that  the 
property  is  not  to  vest  until  the  purchase-money  is  paid  or  secured, 
does  not  pass  the  title  to  the  vendee,  and  that  the  vendor,  in  case  the 
condition  is  not  fulfilled,  has  a  right  to  repossess  himself  of  the  goods, 
both  against  the  vendee  and  against  his  creditors,  claiming  to  hold 
them  under  attachments.     Hussey  v.  Thornton,  4  Mass.  405  ;   Marston 
V.  Baldwin,  17  Mass.  606;  Barrett  v.  Pritchard,2  Pick.  512;  Whitwell 
V.  Vincent,  4  Pick.  449 ;  Hill  v.  Freeman,  3  Cush.  257. 

In  the  case  at  bar,  the  jury  have  found  that  the  original  sale  and 
delivery  by  the  plaintiffs  were  conditional.     But  the  defendants  claim 
to  hold  the  goods  in  controversy,  as  bailees  of  a  bona  fide  purchaser 
from  the  original  vendee,  on  the  ground  that,  having  purchased  them 
in  good  faith,  the  rule  above  stated  is  not  applicable,  and  that  a  valid 
title  to  the  property  is  vested  in  such  purchaser.     This  position  is  sup- 
posed to  be  supported  by  a  dictum  of  Chief  Justice  Parsons  in  Hussey 
V.  Thornton,  by  which  it  is  implied  that  in  such  cases  the  vendor  can- 
not reclaim  goods  in  the  possession  of  bona  fide  purchasers  from  his 
vendee.     But   the    authority  of  this   dictum,   so   for  as   it    ever  had 
any,  was  entirely  overthrown  in  Ayer  v.  Bartlett,  6  Pick.  78,  where 
Chief  Justice  Parker  said  that  it  could  not  be  sustained,  as  a  general 
proposition.     Some  of  the  elementary  writers  have  stated  such  a  dpc- 
trine  in  unqualified  terms  ;  but  the  authorities  cited  by  them  in  its 
support  do  not  sustain  the  text.     Hilliard  on  Sales,  100,  et  seq. ;  Story 
on  Sales,  §  313.     Chancellor  Kent,  after  stating  the  rule  as  to  vendees 


SECT.  III.]       COGGILL    V.    HARTFORD    AND   NEW   HAVEN   R.R.    CO.         715 

and  attaching  creditors,  in  conformity  with  the  decisions  above  cited, 
adds,  that  as  to  bona  fide  purchasers,  the  rule  might  be  otherwise.  2 
Kent,  Com.  (6th  ed.)"498.  In  Hill  v.  Freeman,  3  Cush.  259,  the  most 
recent  case  on  the  subject  in  oiu*  own  reports,  the  court  say  that  the 
right  of  the  vendor  to  reclaim  property  in  such  cases,  in  the  hands  of 
bona  fide  purchasers,  is  an  open  question. 

Looking,  then,  at  this  case,  as  we  think  we  may,  as  one  not  depend- 
ing on  authority,  but  to  be  determined  on  just  and  sound  princi])lcs,  it 
is  difficult  to  see  any  good  and  satisfactory  reason  for  the  distinction, 
which  is  attempted  to  be  made,  between  the  rights  of  the  vendee  and 
liis  (Tciiirorsto  jTOods'sold  and  delivered  on  condition,  and  those  oihona 
^le  purc-liastr.s.  All  the  cases  turn  on  the  principle  that  the  com- 
pliance with  the  conditions  of  sale  and  delivery  is,  by  the  terms  of  the 
contract,  precedent  to  the  transfer  of  the  property  from  the  vendor  to 
the  vendee.  The  vendee,  in  such  cases,  acquires  no  property  in  the 
goods.  He  is  only  a  bailee  for  a  specific  purpose.  The  delivery,  which 
in  ordinary  cases  passes  the  title  to  the  vendee,  must  take  effect  accord- 
ing to  the  agreement  of  the  parties,  and  can  operate  to  vest  the  prop- 
erty, only  when  the  contingency  contemplated  by  the  contract  arises.  | 
The  vendee  therefore,  in  such  cases,  having  no  title  to  the  proi)erty,  \ 
can  pass  none  to  others.  He  has  only  a  bare  right  of  possession ;  and  I 
those  who  claim  under  him,  either  as  creditors  or  purchasers,  can  ac-  . 
quire  no  higher  or  better  title.  *  Such  is  the  necessary  result  of  carrying 
into  effect  the  intention  of  the  parties  to  a  conditional  sale  and 
delivery.  Any  other  rule  would  be  equivalent  to  the  denial  of  the  i 
validityofsuch  coTitracts.  But  they  certainly  viuhite  no  \-\\\v  of  law, 
rior  are  they  contrary  to  sound  policy.  The  cases  above  cited  expressly 
recoo-nize  them  as  le^ral  and  valid  contracts  between  the  vendor  on  the 
one  hand,  and  the  vendee  and  his  creditors  on  the  other.  If  valid  to 
this  extent,  it  necessarily  follows  that  they  are  so  for  all  purposes.  If 
the  property  does  not  pass  out  of  the  vendor  for  one  purpose,  it  cer- 
tainly does  not  for  another.  If  it  remains  in  him  at  all,  it  is  because 
such  is  the  agreement  of  the  parties,  and  it  cannot  be  devested  by  any 
act  of  the  vendee  until  the  contract  is  fulfilled.  A  bona  fide  purchaser, 
as  well  as  an  attaching  creditor,  must  acquire  his  title  through  the 
vendee.  If  the  latter  has  no  title,  he  can  communicate  none.  The 
purchaser  and  the  attaching  creditor  are,  in  this  respect,  upon  the  same 
footing.  No  equities  can  intervene  to  give  the  former  a  better  right  as 
against  the  original  vendor  tlian  the  latter;  they  are  in  mqxiali  jure. 
Neither  of  them  has  a  legal  title  to  hold  the  property. 

A  mere  possession  by  the  vendee  carries  with  it  no  right  or  author- 
ity to  transfer  the  title.  That  continues  in  the  vendor  until  the  con- 
ditions of  sale  and  delivery  are  complied  with  by  the  vendee,  or  are 
waived  by  the  vendor.  And  this  constitutes  the  precise  distinction 
between  a  sale  and  delivery  of  goods  on  condition,  and  a  sale  procured 


716        COGGILL   V.    HARTFORD    AND   NEW   HAVEN   R.R.    CO.        [CHAP.  II. 

by  fraud  or  false  representations  on  the  part  of  the  vendee.  In  the 
latter  case,  the  property  passes  by  the  sale  and  delivery,  because 
such  was  the  agreement  and  intent  of  the  parties.  Therefore  the 
vendee,  having  the  property  as  well  as  the  possession  of  the  goods,  can 
pass  a  good  title  to  a  purchaser,  who  takes  the  goods  in  good  faith  and 
without  notice  of  the  fraud.  But  the  vendor  can  reclaim  the  goods  by 
rescinding  the  contract  and  avoiding  the  sale,  so  long  as  they  remain 
in  the  hands  of  the  vendee,  or  of  any  one  Avho  has  taken  them  with 
notice  of  the  fraud,  or  without  paying  a  valuable  consideration  for 
them.  In  such  case,  the  title  to  the  goods  is  in  the  vendee,  though 
defeasible  at  the  option  of  the  vendor,  because  the  vendee,  or  those 
claimincr  under  him  with  knowledge  of  the  fraud,  cannot  honestly  or 
legally  hold  the  property  as  against  him.  But,  in  the  case  of  a  con- 
ditional sale  and  delivery,  the  title  does  not  pass  from  the  vendor  until 
the  condition  is  fulfilled.  The  vendee  obtains  no  right  under  such 
sale,  to  dispose  of  the  property,  but  only  to  hold  it  until  the  terms  of 
the  contract  are  complied  with.     White  v.  Garden,  10  C.  B.  919. 

It  is  urged,  and  this  we  suppose  to  be  the  main  argument  on  which 
the  contrary  doctrine  is  founded,  that  as  possession  of  personal  prop- 
erty is  prima  facie  evidence  of  title,  it  would  furnish  fraudulent  parties 
with  the  means  of  defrauding  honest  purchasers,  to  intrust  them  with 
the  apparent  ownership  of  property,  while  the  real  title  is  allowed  to 
remain  in  a  third  party,  who  can  reclaim  it  at  pleasure.     If  a  vendor, 
by  collusion  with  his  vendee,  entered  into  the  contract,  and  annexed 
the  conditions  for  the  purpose  of  enabling  the  latter  to  obtain  a  false 
credit,  or  to  impose  on  innocent  persons,  by  means  of  the  property 
placed  in  his  possession,  the  argument  would  be  decisive.     In  such 
case  the  vendor,  being  a  party  to  a  fraud,  would  be  estopped  to  set  up 
any  title  to  the  property ;  and  creditors,  as  well  as  innocent  purchasers 
of  the  vendee,  might  well  claim  to  hold  it,  on  the  ground  that  it  was 
placed  in  his  possession  for  a  fraudulent  purpose.     But  when  the  con- 
tract of  sale  is  entered  into  in  good  faith,  for  the  purpose  of  enabling 
the  vendor  to  realize  his  purchase-money,  or  obtain  security  for  it  in 
conformity  with  the  original  terms  of  the  bargain,  the  argument  ab  in- 
convenienti  is  without  any  foundation  in  principle  or  authority.     The 
general  rule  of  the  common  law  has  always  been  that  a  man  who  has 
no  authority  to  sell  cannot,  by  making  a  sale,  transfer  the  property  to 
another.     Chit.  Con.  (8th  Amer.  ed.)  342.     Except  in  cases  of  sale  in 
market  overt,  which  do  not  exist  in  this  commonwealth,  possession  of 
itself  confers  no  authority  to  sell.     A  lessee  of  chattels  or  a  bailee  for 
a  special  purpose  can  pass  no  title  to  a  vendee,  Avithout  authority  from 
the  lessor  or  bailor ;  and  yet  the  property  is  intrusted  to  their  posses- 
sion, as  apparent  owners,  in  the  same  manner  as  to  a  vendee  under  a 
conditional  sale.     Besides,  there  is  no  good  reason  or  equity  in  placing 
the  burden  of  a  fi-audulent  sale  by  a  vendee,  in  violation  of  the  con- 


SECT.  III.]  WHITNEY   V.    EATON.  717 

dition  on  which  he  received  the  property,  upon  a  bona  fide  vendor, 
ratlier  than  upon  a  bona  fide  purchaser.  On  tlie  contrary,  if  either  is 
to  lose  by  liis  fraudulent  act,  it  should  be  the  latter,  Avho  has  dealt  with 
a  party  having  no  authority,  instead  of  the  fonner,  who  relies  upon  a 
valid  subsisting  contract  as  the  foundation  of  his  claim.  It  is  the  duty 
of  the  purchaser  to  inquire,  and  see  that  his  vendor  has  a  good  title  to 
the  jjroperty  Avhich  he  undertakes  to  sell.  These  views  are  sup]iorted 
by  the  authorities.  Long  on  Sales  (2d  Amer.  ed.)  189,  and  cases  cited  ; 
Copland  V.  Bosquet,  4  Wash.  C.  C.  588 ;  D'Wolf  v.  Babbett,  4  Mason, 
294 ;  Luey  v.  Bundy,  9  N.  H.  298 ;  Porter  v.  Pettengill,  12  N.  H. 
299 ;  Herring  w.  Willard,  2  Sandf.  418 ;  Barrett  v.  Pritchard,  2  Pick. 
512  ;  Dresser  Manuf.  Co.  v.  Waterston,  3  Met.  9. 

The  instructions  given  to  the  jury  in  the  present  case,  were  in  con- 
fomiity  with  these  i)rinciples;  and  were  carefully  guarded,  so  as  to 
prevent  the  plaintiffs  from  recovering  if  they  had  been  guilty  of  laches 
in  reclaiming  their  property,  or  had  in  any  way  waived  the  con- 
ditions on  which  the  property  in  controversy  was  sold  and  delivered 
to  the  original  vendee.  Exceptions  overruled} 


»   1 

(■■t 


\{^    <)v*^  GEORGE  WHITNEY  v.  ROBERT  B.  EATON  and  Otiiers.^-t^^^^ 


}/}Si^'^y'^<K'^'^  ^-^  "■*""" 


}RGE  WHITNEY  v.  ROBERT  B.  EATON  and  Otiiers.^-t^^^^ 
^^  Supreme  Judicial  Court  op  Massachusetts,  March,  1860.  y^^^T-^t^ 

[Reported  in  15  Gray,  225.] 

Replevin  of  ten  chests  of  indigo,  sold  while  in  bond  at  the  custom- 
house, by  the  plaintiff  to  the  defendants  through  a  broker,  at  ninety 
cents  per  pound  on  a  credit  of  six  months,  and  delivered  under  circum- 
stances detailed  in  a  stateuRnt  of  facts, Upon  which  the  case  was  sub- 
mitted to  the  Superior  Court  and,  on  appeal,  to  this  court,  and  which 
appears  in  the  opinion. 

0.  G.  -Peabodi/,  for  the  plaintiff. 

IT.  C.  ITutchms,  for  the  defendants.  I 

Shaav,  C.  J.     The  question  is,  whether  the  property  vested  in  the  •►* 

vendees  befoi'e  they  became  insolvent.     The  assignees,  who  now  claim        \ 
for  the  general  creditoi-s,  do  not  stand  in  the  position  of  i>urchaser8  A^     v"^ 
without  notice,  who  have  paid  a  full  consideration  for  the  goods,  but   \     r^^ 
they  took  only  such  title  as  the   insolvents   themselves   could   have      jv    \J/ 


\> 


/^<   TZ^.^^    /^^c/^-^  i/^/C^rc-y   >^'7^V/^^ 

(p. 


asserted  had  they  been  actors.    Hill  v.  Freeman,  8  Cush.  257 ;  Tyler  v. 

1  Approved  and  followed  in  Sargent  v.  Metcalf,  5  Gray,  306,  and  Deshon  i'.  Bige- 
low,  8  Gray,  159.  —  Ed. 


^c^/Z-^^'^^^^^^^^^^^"-^  ^  '' ^2^^^^-^^      ^- 


718  WHITNEY   V.    EATON.  [CHAP.  II. 

Freeman,  3  Cash.  261.  But  if  the  sale  was  conditional,  if  the  condi- 
tion had  not  been  complied  with  nor  waived,  a  bona  fide  purchaser 
could  not  hold.  Coggill  v.  Hartford  and  New  Haven  Railroad,  3  Gray, 
545. 

The  case  is  submitted  to  the  court  on  an  agreement  of  facts,  with 
liberty  to  draw  all  such  inferences  as  the  facts  will  warrant.  It  is  stated 
explicitly,  in  the  agreed  statement  of  facts,  that  the  defendants,  through 
their  broker,  agreed  to  pay  for  the  indigo  in  their  negotiable  note  at 
six  months.  But  it  is  argued  on  the  part  of  the  defendants,  that  the 
giving  of  a  negotiable  note  at  six  months  by  the  purchasers  was  not  a 
part  of  the  contract.  The  only  ground  on  which  this  argument  is 
placed  is,  that  in  the  memorandum  entered  by  the  broker  of  the  de- 
fendants in  his  book,  stating  the  fact  of  the  sale,  the  giving  of  their 
own  note  by  the  defendants  is  not  mentioned  as  part  of  the  contract. 
But  as  here  was  no  attempt  to  enforce  an  executory  agreement  for  a 
sale  of  goods,  either  by  the  vendor  to  require  an  acceptance  of  goods 
sold,  or  by  the  vendee  to  require  a  delivery  of  them,  the  fact  of  a 
memorandum  in  writinsr  to  bind  the  bars-ain  under  the  Statute  of 
Frauds  is  not  in  question.  After  a  delivery  in  fact,  pursuant  to  some 
contract  of  sale,  the  only  question  is,  Avhether  by  the  terms  of  such 
contract  such  delivery  of  itself  vested  the  property  in  the  vendee,  and 
this  might  be  proved  by  any  competent  evidence  bearing  upon  the 
terms  of  sale.  And  such  conclusion  is  quite  consistent  with  the  provi- 
•sion  in  the  last  paragraph  of  the  agreed  statement  of  facts,  that  if  any 
facts  therein  contained  would  be  incompetent  as  evidence  in  a  jury  trial, 
the  same  shall  be  considered  as  stricken  out,  and  neither  party  preju- 
diced thereby.  It  was  competent  therefore  to  prove  such  fact  by  the 
testimony  of  the  broker,  by  correspondence,  or  otherwise  ;  and  therefore 
it  was  competent  for  the  parties  to  agree  to  it. 

But  further,  under  the  authority  given  to  the  court,  by  which  they 
are  not  only  authorized,  but  bound,  to  draw  such  inferences  of  fact  as 
,  a  jury  would  and  ought  to  draw,  we  are  strongly  inclined  to  believe, 
\  that  when  merchandise  is  sold  at  wholesale  on  a  long  credit,  the  under- 
1  standing  is  so  general  that  it  is  to  be  paid  for  by  note  or  bill  of  ex- 
change,  that  a  jury  would  be  warranted  to  infer  from  the  circumstances 
'  that  such  Avas  the  intent  and  meaning  of  the  stipulation  in  this  case. 
A  negotiable  security  is  more  beneficial  to  the  vendor  than  a  sale  on 
account ;  it  gives  him  conclusive  j^roof  of  his  debt,  and  is  more  availa- 
ble for  use  by  enabling  him  to  raise  money  on  it.     If  any  negotiable 
contract  was  to  be  given  for  the  merchandise,  nothing  could  be  moi-e 
simple  and  less  onerous  to  the  vendees  than  their  own  promissory  note 
to  the  vendor;  and  it  is  most  favorable  to  the  defendants  to  presume 
that  their  own  note  was  intended.    If  such  were  the  terms  of  sale,  then 
it  was  a  conditional  sale  and  delivery ;  payment  by  note  was  a  condi- 
tion precedent,  and  until  compliance  with  it  the  proj^erty  did  not  pass. 


)»  v^t^  lA'v'Vri,^ 


SECT,  IIT.]  WHITNEY   V.    EATON.  719 

Cases  above  cited;  Blanchard  v.  Child,  7  Gray,  loo;  Burbank  v. 
Crooker,  7  Gray,  158. 

That  liore  was  no  waiver,  and  no  intention  that  the  sale  should  be 
deemed  absolute  without  p.ayment  by  note,  as  in  the  case  of  Riddle  v- 
Varnum,  20  Pick.  280,  will  appear,  we  think,  by  an  examination  of  the 
facts.  For  this  purpose  dates  may  be  material.  It  appears  that  the 
14tli  of  September  was  Monday,  therefore  the  sale  on  the  8th  was  on 
the  Tuesday  previous.  But  it  was  made  by  the  defendants'  broker,  and 
was  not  made  known  to  them  until  Thursday,  the  10th,  and  then  by 
the  plaintiff.  On  that  day  he  paid  the  duties  and  warehouse  charges, 
and  gave  the  defendants  an  order  by  which  the  goods  were  delivered 
to  their  truckman  and  carried  to  their  store.  It  is  agreed  that  the  com- 
putation of  the  tare  for  the  purpose  of  this  sale  was  to  be  done  there 
under  the  defendants'  direction.  The  plaintiff  called  on  two  different 
days,  between  that  and  the  time  of  the  defendants'  stopping  payment, 
to  inquire  if  the  tare  was  fixed,  and  was  told  it  was  not;  these  calls 
must  have  been  on  the  11th  and  12th,  Friday  and  Saturday;  and  on 
Saturday  the  defendants  stopped  payment,  though  this  was  not  known 
to  the  plaintiff  till  Monday  the  14th,  and  he  thereupon  demanded  back 
the  indiso.  It  is  stated  as  a  fact,  that  the  boxes  were  "tared"  on  the 
1 1th,  and  so  entered  on  the  defendants'  books;  if  it  was  so,  a  false 
answer  was  given  to  the  plaintiff.  It  further  appears  that  no  notice  of 
this  act  was  given  to  the  plaintiff  till  after  the  failure  of  the  defendants, 
and  after  the  commencement  of  this  suit.  This  conduct  rebuts  the 
presumption  that  the  plaintiff  intended  to  sell  without  a  note,  or  had 
waived  that  condition. 

Had  this  been  a  sale  of  these  cases  of  indigo  on  a  credit  of  six  months 
on  book  account,  without  note,  we  are  not  prepared  to  say  that  the  act 
of  "taring"  was  an  act  which  remained  to  be  done,  so  as  to  suspend 
the  vesting  of  the. property ;  because,  as  it  was  to  be  ascertained  solely 
to  determine  the  number  of  net  pounds  to  be  paid  for,  it  might  have 
been  done  after  the  goods  had  been  definitively  delivered,  but  before 
the  time  of  payment,  with  equal  benefit  to  both  parties.  But  if  tlie 
contract  was  to  pay  by  promissory  note,  then  the  giving  of  the  note 
must  necessarily  precede  the  vesting  of  the  property  by  the  sale,  and 
of  course  the  "taring"  of  the  goods  was  necessary  to  determine  the 
true  price  of  the  goods,  and  fix  the  amount  of  the  whole  purchase- 
money.  Some  other  circumstances  lead  to  the  same  result.  No  bill 
of  sale  was  made  out  by  the  plaintiff  and  sent  to  the  defendants ;  no 
entry  as  of  goods  sold  was  made  in  the  books  of  the  plaintiff;  no  inti- 
mation given  by  the  defendants  to  the  plaintiff  that  the  goods  were 
sold  on  book  account,  and  that  "  taring  "  was  not  necessary  to  complete 
the  sale. 

On  the  whole  case,  the  court  are  of  opinion  that  the  sale  of  indigo 
was  inchoate,  incomplete,  conditional  on  a  condition  precedent  not  per- 


720  .   FARLOW   V.    ELLIS,  [CHAP.  II. 

formed,  so  that  the  property  had  not  vested  in  the  vendees  when  they 
became  insolvent ;  that  the  right  of  possession  followed  the  right  of 
property  at  the  time  of  demand,  a^  of  the  commencement  of  this  suit 
in  replevin.  ,      U/         I  jr  Judgment  for  the  plaintiff. 


KS 


A^  -^!t      k  \fO\Y^  S.  FARLOW  y.  ABNER  ELLIS  and  Axother. 

PREME  Judicial  Court  of  Massachusetts,  March,  1860. 

[Reported  in  15  Gray,  229.] 


jr 

Replevin  of  thirty-one  cases  of  indigo,  claimed  by  the  plaintiff  on 
the  ground  that  he  had  made  sale  of  them  to  Eaton,  Hill,  &  Candler,  on 
conditions  which  had  not  been  complied  with.  Answer,  that  the  indigo 
was  not  the  property  of  the  plaintiff,  but  of  Eaton,  Hill,  &  Candler, 
who  had  consigned  it  to  the  defendants,  and  that  the  defendants  had  a 
lien  thereon  for  advances. 

At  the  trial  in  the  Superior  Court  of  Suffolk  at  January  term,  1859, 
before  Nash,  J,,  the  plaintiff's  evidence  tended  to  show  that  on  the  7th 
of  August,  1857,  a  merchandise  broker  negotiated  a  sale  to  Eaton,  Hill, 
&  Candler,  of  thirty-five  cases  of  indigo,  the  property  of  the  plaintiff, 
and  then  in  the  government  warehouse,  for  "  satisfactoij_£a£er  six 
months ; "  that  on  the  next  day  the  plaintiff  was  informed  of  the  sale; 
"and  on  the  10th  of  August  called  on  Eaton,  Hill,  &  Candler,  to  arrange 
the  paper,  and  they  requested  him  to  take  as  much  of  their  paper  as 
he,  on  making  inquiries,  should  find  satisfactory;  that  on  the  12th  or 
13th  of  August  the  plaintiff  called  on  Eaton,  Hill,  &  Candler,  and  told 
them  that  he  would  take  one-third  of  the  amount  in  the  paper  of  their 
firm ;  and  they  requested  him  to  call  in  three  or  four  days,  and  they 
would  have  the  matter  arranged  and  give  him  good  Boston  accept- 
ances; that  on  the  12th  or  13th  of  August,  there  was  sent  to  Eaton, 
Hill,  &  Candler  a  custom-house  permit  for  the  thirty-five  cases  (to  the 
bearer  of  which  it  is  customary,  in  the  absence  of  any  circumstances  of 
suspicion,  to  deliver  the  goods  on  payment  of  the  storage  accrued),  the 
weigher's  certificate,  and  a  bill  of  parcels  in  this  form :  "  Messrs.  Eaton, 
Hill,  &  Candler  bought  of  J.  S.  Farlow,  Boston,  August  8, 1857.    [Marks, 
quantities,  and  prices.]      $14,751.55,  six  months,  satisfactory  paper;" 
that  there  were  many  subsequent  interviews  between  the  plaintiff  and 
Eaton,  Hill,  &  Candler;  that  on  the  2d  of  September,  Eaton,  Hill,  & 
Candler  removed  the  indigo  from  the  government  warehouse  to  their 
shop ;  that  on  the  7th  of  September  the  plaintiff  informed  Eaton,  Hill, 
&  Candler,  that  the  paper  which  they  proposed  to  give  him  was  not 
satisfactory;  that  on  Saturday  the  12th  of  September,  Eaton,  Hill,  & 


SECT.  III.]  FARLOW   V.    ELLIS.  721 

Candler  failed ;  on  the  14th  the  plaintiflT  demanded  a  compliance  with 
the  terms  of  the  sale,  or  in  default  thereof  a  retin-n  of  the  goods,  and 
on  the  16th  the  goods  were  demanded  and  replevied;  and  that  nothing 
was  said  between  the  plaintiff  and  Eaton,  Hill,  &  Candler  in  reference  / 
to  the  delivery  being  conditional,  or  subject  to  the  condition,  before 
the  15th  of  September. 

The  plaintiff  was  allowed,  against  the  objection  of  the  defendants,  to 
introduce  evidence  to  prove  a  custom  or  practice  of  trade  in  cases  of 
conditional  sales,  to  deliver  the  property  forthwith,  Avithout  first  exact- 
ing the  conditions  of  the  sale,  as  matter  of  indulgence  in  the  business 

community.  J 

The  defendants  asked  the  court  to  rule,  "that  although  the  jury  V  ^ 
should  be  satisfied  that  there  had  been  a  conditional  sale  of  this  indigo,  -^?  ^^^^ 
yet  that  a  delivery  of  the  property,  without  any  thing  being  said  about 
the  condition,  as  in  this  case,  under  the  proved  and  admitted  facts, 
amounted  in  law  to  such  a  delivery  as  would  pass  the  property  to  the 
buyer."  But  the  court,  declining  so.  to  rule,  instructed  the  jury  "  that 
such  a  delivery  was  presumed  to  be  absolute  and  presumptive  evidence 
of  a  waiver  of  the  condition ;  but  that  this  presumption  might  be  con- 
trolled and  explained  ;  and  that  it  was  a  question  of  fact  for  the  jury 
to  determine,  on  all  the  evidence,  whether  the  delivery  was  or  was  not 
subject  to  the  condition."  The  jury  returned  a  verdict  for  the  plaintiff, 
and  the  defendants  alleged  exceptions. 

J.  G.  Abbott,  for  the  defendants,  cited  Smith  v.  Lynes,  3  Sandf  203  ; 
Carleton  v.  Sumner,  4  Pick.  516 ;  Smith  v.  Dennie,  6  Pick.  266 ;  Bowen 
V.  Burk,  13  Penn.  State,  146 ;  Leedom  v.  Philips,  1  Yeates,  529 ;   Har- 
ris V.  Smith,  3  S.  &  R.  20 ;  Hennequin  v.  Sands,  25  Wend.  640  ;  Chap- 
man V.  Lathrop,  6  Cow.  110 ;  Furniss  v.  Hone,  8  Wend.  247  ;  People  v. 
Haynes,  14  Wend.  546 ;  Lupin  v.  Marie,  6  Wend.  77 ;  Clark  v.  New 
England  Mutual  Fire  Ins.  Co.,  6  Cush.  342  ;  Underbill  v.  Agawam  Mu- 
tual Fire  Ins.  Co.,  6  Cush.  440 ;  Gerrish  v.  Norris,  9  Cush.  170. 
H.  W.  Paine  and  C.  P.  Curtis,  Jr.,  for  the  plaintiff. 
Shaw,  C.  J.     It  seems  originally  to  have  been  questioned  whether 
the  sale  of  indigo  by  the  plaintiff  to  Eaton,  Hill,  &  Candler  was  con- 
ditional ;  but  it  is  now  admitted  that  it  was  on  condition  of  being  paid 
therefor  in  satisfactory  paper  at  six  months.     The  question  therefore 
is,  whether  this  was  such  a  delivery,  without  compliance  with  the  con- 
dition, as  to  make  the  sale  absolute,  so  as  to  vest  the  property  in  the 
vendee  from  the  delivery.     If  there  was  a  waiver  of  the  condition  and 
the  ])roperty  vested  absolutely  in  the   vendees,  then  the  plaintiff  had 
no  right  to  recover,  whether  these  defendants  had  acquired  any  title 
from  those  vendees  or  not.     The  sole  ground  on  which  the  i)laintiff 
can  recover  in  this  suit  is,  that  he  never  parted  with  that  property 
which  he  had  in  the  indigo  before  the  negotiation  with  Eaton,  Hill,  & 
Candler. 


722  FARLOW   V.    ELLIS.  [CHAP.  II. 

The  transfer  of  personal  property  is  effected  by  an  executed  con- 
tract ;  and  this  consists  of  a  contract  or  agreement  on  the  terms  of 
sale,  by  the  parties  or  their  agents,  and  a  delivery,  actual  or  construc- 
tive, pursuant  to  the  terms  of  such  agreement.  Delivery  is  essential ; 
without  delivery  the  property  does  not  vest  in  the  vendee  so  as  to 
enable  him  to  make  title  to  a  third  party ;  and  until  it  vests  in  the 
vendee  it  remains  in  the  vendor. 

The  question  then  on  trial  in  this  case  was,  whether  the  plaintiff  had 
Avaived  the  condition  of  this  sale,  and  manifested  by  his  language  or 
conduct  an  intention  or  a  willingness  to  waive  the  condition  and  make 
the  sale  absolute,  without  having  the  satisfactory  paper.  When  there 
is  a  condition  made  at  the  contract  of  sale  favorable  to  the  vendor, 
and  solely  for  his  benefit,  he  may,  if  he  choose,  waive  it,  and  treat  the 
contvact  as  if  no  such  condition  had  been  embraced  in  it.  Waiver  is  a 
voluntary  relinquishment  or  renunciation  of  some  right,  a  foregoing  or 
giving  up  of  some  benefit  or  advantage,  which,  but  for  such  waiver,  he 
Avould  have  enjoyed.  It  may  be  proved  by  express  declaration  ;  or  by 
acts  and  declarations  manifesting  an  intent  and  purpose  not  to  claim 
the  supposed  advantage  ;  or  by  a  course  of  acts  and  conduct,  or  by  so 
neglecting  and  foiling  to  act,  as  to  induce  a  belief  that  it  was  his  in- 
tention and  purpose  to  waive.  Still,  voluntary  choice  not  to  claim  is 
of  the  essence  of  waiver,  and  not  mere  negligence  ;  though  from  such 
negligence  unexplained  such  intention  may  be  inferred. 

The  question  of  waiver  therefore  is  a  question  of  fact  for  a  jury ;  it 
may  be  proved  by  various  species  of  proofs  and  evidence,  by  declarations, 
by  acts,  and  by  nonfeasance  or  forbearing  to  claim  or  act ;  but  however 
proved,  the  question  is.  Has  he  Avillingly  given  up  and  forborne  to 
claim  tlie  benefit  of  the  condition  ?  In  this  case  it  was.  Did  the  plain- 
tiff voluntarily  deliver  the  goods,  without  intending  to  rely  on  the 
condition  ? 

Let  us  apply  these  rules  to  the  present  case.  Here  there  was  a  con- 
tract of  sale  through  a  broker  on  the  7th  of  August,  1857.  It  was  on 
condition  of  having  satisfactory  paper,  that  is,  the  purchaser's  own 
notes  or  acceptances,  if  satisfactory  to  the  seller,  otlierwise  with  in- 
dorsers  or  sureties.  It  was  not  a  general  sale  on  credit.  There  was 
not  a  formal  delivery  by  the  seller  to  the  buyer ;  the  delivery  was  con- 
structive. The  first  act  done  by  the  plaintiff  toAvards  a  delivery  was 
on  the  12th  of  August,  by  sending  to  the  purchasers  a  bill  of  parcels, 
specifying  the  terms  of  the  sale,  a  custom-house  permit,  the  goods 
beinf  in  a  government  warehouse,  and  the  weigher's  certificate.  There 
was  no  order  of  the  vendor  on  the  warehouse-keeper  to  deliver  the 
goods  to  the  vendees,  which  would  authorize  the  warehouse  keeper  to 
transfer  the  indigo  from  the  credit  of  the  plaintiff  to  that  of  Eaton, 
Hill,  &  Candler.  Such  an  order  would  have  constituted  a  constructive 
delivery,  like  the  London  dock  warrant.     The  most  the  case  finds  is  a 


SECT.  III.]  FARLOW   V.   ELLIS.  723 

custom  to  consider  the  custom-house  permit  sufficient  to  authorize  tlie 
bearer  to  take  the  custody  of  the  goods.  But  it  is  a  mere  naked 
authority,  not  coupled  witli  an  interest,  and  revocable  ;  so  that,  until 
actually  executed  by  taking  possession,  it  did  not  amount  to  a  delivery. 
Nor  was  the  indigo  actually  removed  from  the  United  States  ware- 
house until  the  2d  of  September.  But  this  sending  of  the  custom- 
house permit  was  the  only  act  done  by  the  plaintiff  towards  a  delivery, 
and  was  the  act  by  which  the  purchasers  obtained  the»custody  of  the 
indigo  :  and  this  permit  was  accompanied  by  the  bill  of  parcels,  stating 
the  condition  to  be  payment  in  satisfactory  i)aper.  Much  other  evi- 
dence was  in  the  case. 

We  think  the  direction  of  the  judge  who  tried  the  cause  was  cor- 
rect, both  in  what  he  declined  to  rule,  and  in  the  instruction  actually 
given.  The  instruction  requested  assumes  a  state  of  ftcts  which  the 
jury  were  yet  to  find  from  the  evidence;  and  it  asks  that  the  jury 
may  find  a  verdict  on  part  of  the  evidence,  to  the  exclusion  of  other 
material  evidence. 

In  what  the  judge  did  instruct,  the  first  part  was  clearly  favorable 
to  the  defendants,  and  what  they  asked,  namely,  that  a  delivery  Avith- 
out  compliance  \\'ith  the  condition  was  presumed  to  be  absolute,  and  a 
waiver  of  the  condition.  In  the  other  part,  the  court  are  of  opinion 
that  the  instruction  was  correct,  that  this  presumption  of  f  ict  might 
be  controlled,  and  that  it  was  a  question  of  fact  for  the  jury. 

There  was  proper  evidence  on  both  sides  to  go  to  the  jury,  they  were 
rightly  directed  both  as  to  the  burden  of  proof  and  as  to  the  law  of 
the  case  ;  and  the  court  are  therefore  of  opinion  that  the  exceptions 
must  be  overruled. 

As  to  the  admission  of  proof  of  the  custom,  it  seems  to  us  that  it 
was  nothing  more  than  has  been  proved  in  many  other  cases,  that  by 
a  general  understanding  among  merchants,  where  merchandise  is  sold 
on  condition,  the  goods  are  actually  placed  in  the  custody  of  the 
buyer  before  compliance  M'ith  the  condition,  and  that  such  change  of 
custody  is  not  de  facto  a  waiver  of  condition,  and  that  the  projierty 
does  not  thereby  pass.  Such  was  the  decision  in  the  cases  of  Hill  v. 
Freeman,  3  Cush.  257,  and  Tyler  v.  Freeman,  3  Cush.  261. 

Mcceptions  overruled. 


SMITH   V.   LYNES.  [CHAP.  II. 


SMITH   V.  LYNES  and  Others. 
New  York  Court  op  Appeals,  July,  1851. 

[Reported  in  1  Selden,  41.] 

This  was  an  action  of  replevin  brought  against  the  defendants  for 
detaining  certain  pieces  of  carpeting  chiimed  by  the  plaintiff  as  his 
property.  On  the  trial  of  the  cause  in  the  Superior  Court  in  the  city 
of  New  York,  the  following  facts  were  proved. 

On  the  3d  Qf  November,  1847,  the  plaintiff,  by  a  written  agreement 
entered  into  with  the  defendant  Benjamin  Lynes,  agreed  to  deliver  to 
Lynes  all  the  carpets  which  should  be  manufactured  by  him  (the  plain- 
tiff) with  a  certain  number  of  looms  at  his  factory  in  Westchester 
county  between  the  date  of  the  agreement  and  the  first  day  of  June, 
1848 ;  Lynes  to  pay  for  the  same  in  his  notes  indorsed  by  Thompson 
&  Co.,  payable  six  months  after  date,  except  goods  to  the  amount  of 
$'2UUU  for  which  the  notes  of  Lynes  without  indorsement  were  to  be 
taken.  The  goods  were  delivered  as  they  were  manufactured,  and 
notes  for  part  of  the  goods  received  were  given  on  the  23d  of  Jan- 
uary, 1848.  Several  parcels  were  delivered  to  Lynes  on  the  22d  and 
28th  of  January,  the  8th,  14th,  and  25th  of  February,  and  the  7th  of 
March.  No  notes  were  given  after  the  8th  of  February,  and  no  appli- 
cation or  demand  was  made  for  notes  after  that  date  until  the  day  on 
which  this  suit  was  commenced. 

On  the  7tli  of  March,  Lynes  by  his  clerk  gave  the  plaintiff  a  receipt 
for  nine  pieces  of  carpeting,  and  on  the  back  of  the  receipt  was  a  mem- 
orandum in  pencil  written  by  Mr.  Lynes,  as  folloAVs :  — 

Messrs.  Thompson  &  Co.  are  up  to  Thompsonville,  but  expect  to  be  down  on 

Wednesday  or  Thursday,  and  I  will  have  them  ready. 

B.  L. 

The  defendant  Lynes,  sworn  as  a  witness  for  the  plaintiff,  testified 
that  by  this  memorandum  he  meant  he  would  have  the  notes  for  the 
goods  ready  for  the  plaintiff. 

Lynes  had  made  an  agreement  with  Thompson  &  Co.,  before  his 
agreement  Avith  the  plaintiff,  by  which  they  agreed  to  take  from  him 
the  o-oods  Avhich  he  afterwards  purchased  from  the  plaintiff.  The  goods 
were  sent  by  the  plaintiff  to  Lynes  and  left  at  his  store.  A  part  of 
them  were  delivered  by  Lynes  to  Thompson  &  Co.,  the  members  of 
which  firm  are  defendants  in  this  suit.  On  the  15th  gf  March,  1848, 
the  plaintiff  called  upon  Lynes  and  demanded  from  him  the  goods,  or 
payment,  or  his  notes.     Lynes  refused  to  give  either.     The  plaintiff 


SECT.  III.]  SMITH   V.   LYNES.  725 

then  on  the  same  day  called  upon  Tliompson  &  Co.,  and  demanded  of 
them  the  goods  in  their  possession  received  by  them  from  Lynes. 
They  refused  to  deliver  them.  Dean,  one  of  the  finn,  admitted  that 
$500  or  $600  worth  of  the  goods  had  not  been  paid  for.  Tlie  suit 
was  commenced  on  the  day  the  goods  were  demanded.  Tlie  balance 
due  the  ])lnintiff  from'Lynes  at  that  time  was  $2,!S04.42. 

The  defendants,  after  proof  of  the  above  facts,  moved  for  a  nonsuit 
on  the  following  grounds,  viz. :  1.  That  the  delivery  of  the  goods  by 
the  plaintiff  to  the  defendant  Lynes  was  absolute,  and  vested  the  title 
thereto  in  him.  2.  That  there  had  been  no  proper  and  sufficient  de- 
mand, nor  any  refusal  of  the  notes,  which,  under  the  contract,  Avere 
to  have  been  given  in  payment  for  the  goods.  3.  That  as  to  the  goods 
sold  by  Lynes  to  the  defendants,  Thonijjson  &  Co.,  they  having  been- 
sold  to  Thompson  <fc  Co.  in  the  ordinary  course  of  business,  long  after 
Lynes  purchased  them  of  the  plaintiff,  such  sale  vested  the  absolute 
tille  in  Thompson  &  Co.  The  motion  was  granted,  and  an  aijplication 
to  set  aside  the  nonsuit  was  denied  by  the  Superior  Court,  and  the 
plaintiff  appealed. 

The  case  is  reported  in  3  Sandford's  Superior  Court  Reports,  203. 

C  W.  Sandford,  for  appellant. 

J3.  W.  Bonney^  for  respondents. 

Paige,  Justice,  delivered  the  opinion  of  the  court. 

Where  goods  are  sold  on  condition  of  being  paid  for  on  delivery  in 
cash  or  commercial  paper,  or  on  condition  of  receiving  on  delivery 
security  for  payment,  an  absolute  and  unconditional  delivery  of  the 
goods  by  the  vendor  without  exacting  at  the  time  of  delivery  a  per- 
formance of  the  condition,  or  attaching  any  other  condition  to  the 
delivery,  is  a  waiver  of  the  condition  of  the  sale,  and  a  complete  title 
passes  to  the  purchaser,  if  there  is  no  fraudulent  contrivance  on  the 
part  of  the  latter  to  obtain  possession.  Where  there  is  a  condition 
precedent  attached  to  a  contract  of  sale  and  delivery,  the  property 
does  not  vest  in  the  vendee  on  delivery,  until  he  performs  the  condi- 
tion, or  the  seller  waives  it.  An  absolute  and  unconditional  delivery 
is  regarded  as  a  waiver  of  the  condition.  By  an  absolute  delivery 
without  exacting  the  performance  of  the  condition,  the  vendor  is  pre- 
sumed to  have  abandoned  the  security  he  had  provided  for  the  payment 
of  the  purchase-money,  and  to  have  elected  to  trust  to  the  personal 
security  of  the  vendee.  2  Kent's  Com.  496-7 ;  Chapman  v.  Lathroj), 
6  Cow.  110,  and  115,  note  {a) ;  Luj)in  v.  Marie,  6  Wend.  80,  in  eiTor, 
Marcy,  J.;  Furniss  v.  Hone,  8  Wend.  247,  in  error;  Carleton  v.  Sum- 
ner, 4  Pick.  516 ;  Ilussey  v.  Thornton,  4  Mass.  405 ;  Smith  v.  Dennie, 
6  Pick.  262 ;  People  v.  Haynes,  14  Wend.  562,  in  error,  per  chancellor, 
566,  per  Tracy,  Sen.;  Shindler  v.  Houston,  1  Denio,  51,  Jewett,  J.; 
Buck  V.  Grimshaw,  1  EdAV.  Ch.  144.  The  vendor,  to  avoid  a  waiver 
of  the  condition  of  the  sale,  must  either  refuse  to  deliver  the  goods 
VOL.  I.  47 


726  SMITH   V.    LYNES.  [CHAP.  II. 

Tvithout  a  performance  of  the  condition,  or  he  must  make  the  delivery 
at  the  time  qualified  and  conditional.  Lupin  v.  Marie,  6  Wend.  81, 
in  error,  Marcy,  J. ;  Hussey  v.  Thornton,  4  Mass.  405 ;  14  Wend.  566, 
Tracy,  Senator.  Justice  Nelson,  in  Furniss  v.  Hone,  8  Wend.  256, 
says,  whether  the  delivery  is  absolute  or  conditional  must  depend  upon 
the  intent  of  the  parties  at  the  time  the  goods  »re  delivered.  And  in 
Smith  V.  Dennie,  6  Pick.  266,  Parker,  Ch.  J.,  held,  that  this  was  a  ques- 
tion of  fact  for  the  jury.  He  says:  "We  do  not  think  after  a  condi- 
tional bargain  has  been  made  and  a  delivery  immediately  takes  place 
upon  the  expectation  that  the  contemplated  security  shall  be  produced, 
without  an  express  declaration  that  the  delivery  is  also  conditional, 
that  the  sale,  ijyso  facto,  becomes  absolute,  because  there  is  an  implied 
understanding  that  the  vendee,"  &c.,  "  will  furnish  the  security,"  &c., 
"  as  soon  as  he  shall  have  an  opportunity  to  procure  it."  In  that  case 
the  sale  was  on  the  express  condition  that  the  vendee  should  give  an 
indorsed  note  for  the  price,  and  the  goods  were  delivered  by  the  clerk 
of  the  vendor  to  the  vendee  without  any  express  reference  to  the  con- 
dition, and  remained  in  the  possession  of  the  vendee  for  eight  days,  dur- 
ing which  time  no  claim  was  made  by  the  vendor  for  the  notes  or  the 

J  goods ;  and  it  was  held  that  there  was  a  waiver  of  the  condition,  and 

^     J     a,  verdict  to  the  contrary  was  set  aside  by  the  court  as  against  evidence. 

^     V]    \Pai'^^i'»  C'h.  J.,  in  giving  the  opinion  of  the  court,  says:    "There  is 

^     -^nothing  in  the  case  from  which  an  intention  to  hold  on  upon  the  con- 

<w*    -->    dition  can  be  inferred,  no  declaration  at  the  time,  ic/dch,  though  not 

^    "::»    necessary,  is  imj^ortant,  and  no  call  for  security  until  it  was  forgotten 

"^   \i    )  ®^'  abandoned,  and  perhaps  never  would  have  been  recurred  to  if  the 

!Vn  \>       goods  had  not  been  attached."     According  to  this  decision,  as  well  as 

^^  the  intimation  of  Justice  Nelson  in  Furniss  v.  Hone,  and  the  language 
of  Chancellor  Kent  in  his  Commentaries,  2  Kent,  496,  it  does  not  seem 
to  be  necessary  to  a  qualified  or  conditional  delivery,  that  the  qualifica- 
tion or  condition  intended  to  be  annexed  to  the  delivery  should  at  the 
time  be  declared  by  the  vendor  in  express  terms.  The  delivery  will 
be  conditional,  if  the  intent  of  the  parties  that  it  should  be  so  can  be 
inferred  from  their  acts  and  the  circumstances  of  the  case.  The  learned 
judge  who  tried  this  cause  was  evidently  mistaken  in  the  proposition 
advanced  by  him,  that,  to  make  a  delivery  conditional,  it  must  be  de- 
clared to  be  so  in  express  terms.  Where  the  delivery  is  absolute 
without  any  contemporaneous  declaration  qualifying  it,  the  onus  of 
the  proof  of  the  condition  rests  upon  the  vendor.  If  no  such  proof 
is  offered,  the  delivery  will  be  deemed  absolute,  and  the  title  to  the 
goods  will  pass  to  the  vendee.  8  Wend.  256,  Nelson,  J.;  Buck  v. 
Grimshaw,  1  Edw.  Ch.  140.  Every  absolute  delivery  of  goods  sold 
on  condition,  is  presumptive  evidence  of  a  waiver  of  the  condition  by 
the  vendor,  and  of  an  intention  on  his  part  to  rely  wholly  on  the  per- 
gonal security  of  the  vendee  for  the  payment  of  the  price  of  the  goods. 


SECT.  111.]  SMITH    V.    LYNES.  727 

The  cases  citetl  by  the  counsel  of  the  appclhint  do  not  conflict  with 
the  foregoinj;  propositions.  In  the  cases  ot'lJussell  v.  Minor,  'I'l  Wend. 
659,  and  of  Keeler  v.  Fiehl,  1  Paige,  312,  express  conditions  were  an- 
nexed to  the  delivery  of  the  goods.  In  Palmer  v.  Hand,  13  John. 
434,  the  delivery  of  the  timber  was  not  complete  before  payment  was 
demanded.  In  Haggerty  v.  Palmer,  G  John.  Ch.  437,  the  delivery  was 
held  to  be  conditional  in  accordance  Avith  a  usage  of  the  city  of  New 
York,  known  to  the  purchaser,  and  the  validity  of  which  was  not  called 
in  question  by  the  parties  to  the  suit. 

In  the  case  now  under  review,  the  goods  were  sold  on  condition  of 
being  paid  for  (excepting  8'iOOO  worth)  on  delivery,  by  indorsed 
notes.  The  goods  were  delivered  in  parcels  at  the  purchaser's  store  on 
several  days  in  January,  February,  and  March.  There  is  no  evidence 
to  show  that  the  delivery  of  any  of  these  parcels  was  in  express  terras 
made  subject  to  any  condition.  The  delivery  being  shown,  it  belonged 
to  the  plaintiff  to  prove  that  it  was  conditional.  Ko  question  can 
arise  as  to  any  of  the  parcels  except  the  one  delivered  on  the  7th  of 
JMarch.  Several  parcels  had  been  delivered  previous  to  that  day 
without  exacting  the  delivery  of  the  indorsed  notes  stipulated  in  the 
contract.  As  to  these  parcels  the  delivery  must  be  deemed  to  be 
absolute,  and  the  condition  regarded  as  waived.  The  memorandum 
indorsed  on  the  receipt  given  for  the  goods  delivered  on  the  7th  of 
March,  in  which  Lynes  declares  in  substance  that  on  Wednesday  or 
Timrsday  he  will  "  have  them  ready  "  (which  Lynes  swears  referred 
to  the  notes),  tends  to  show  a  promise  on  the  part  of  Lynes  to  pro- 
cure the  indorsed  notes  and  deliver  them  to  the  plaintiflj  and  that  the 
goods  delivered  on  the  7th  of  March,  were  delivered  on  the  condition 
of  the  subsequent  delivery  by  Lynes  to  the  plaintiff  of  such  notes. 
If  the  goods  were  delivered  on  the  faith  of  that  jn-omise,  and  in  ex- 
pectation that  it  would  be  performed,  this  case  resembles  that  of  Kussell 
V.  Minor,  22  Wend.  662. 

In  that  case  the  seller  delivered  a  portion  of  the  goods  sold  to  the 
purchaser,  and  asked  the  latter  for  his  note  for  the  quantity  delivered, 
and  the  purchaser  replied  that  he  would  give  his  note  for  the  whole 
when  the  remainder  was  delivered,  and  that  the  parcel  then  delivered 
could  remain  till  that  time.  The  Court  of  Errors  held  that  the  de- 
livery of  the  parcel  was  conditional.  Senator  Edwards,  with  whom 
the  majority  of  the  court  concurred,  put  the  question  of  waiver  of  the 
condition  of  the  sale,  on  the  intention  of  the  parties  at  the  time  of  the 
delivery  ;  and  from  the  facts  of  that  case,  he  came  to  the  conclusion 
that  neither  party  intended  that  the  condition  of  the  sale  should  be 
waived.  Senator  Wager  took  a  similar  view  of  the  question.  If  the 
memorandum  indorsed  on  the  receipt  of  the  7th  of  March  tends  to 
show  a  state  of  facts  which  will  bring  this  case  within  the  principle 
of  the  case  of  Russell  v.  Minor  (which  I  think  quite  clear),  the  non- 


728  WAIT   V.    GREEN.  [CHAP.  H. 

suit  of  the  plaintiff  was  erroneons  so  far  as  relates  to  the  goods  deliv- 
ered on  the  7th  of  March ;  and  the  judge  who  tried  the  cause  erred 
in  not  submitting  it  to  the  jury  to  determine  whether  the  goods  deliv- 
ered on  that  day  were  delivered  absolutely  or  conditionally ;  that  is, 
whether  the  plaintiff  intended  to  deliver  them  absolutely,  and  thereby 
to  waive  the  condition  on  which  the  sale  Avas  made.     6  Pick.  266,  267. 

There  is  no  evidence  in  the  case  to  show  that  the  goods  found  in 
the  possession  of  Thompson  &  Co.,  and  replevied  by  the  sheriff,  were 
a  part  of  the  goods  delivered  on  the  7th  of  March.  These  goods  they 
purchased  from  B.  Lynes,  without  any  notice,  for  aught  the  case  shows, 
of  the  nature  of  the  contract  of  sale  between  him  and  the  plaintiff. 
As  to  all  the  goods  therefore  purchased  by  Thompson  &  Co.  from  B. 
Lynes,  and  paid  for  by  them,  they  are  entitled  to  the  protection  of 
bona  fide  purchasers  without  notice,  even  if  the  delivery  to  Lynes  was 
conditional.  6  Johns.  Ch.  437 ;  1  Paige,  312 ;  1  Edw.  Ch.  146.  As 
it  does  not  appear  that  any  part  of  the  goods  taken  by  the  sheriff  from 
the  possession  of  Thompson  &  Co.  were  a  part  of  the  goods  delivered 
on  the  7th  of  March,  although  a  part  of  these  goods  should  not  have 
been  paid  for  by  Thompson  &  Co.  to  Lynes,  they  can  nevertheless  jus- 
tify under  Lynes,  whose  title  to  all  the  parcels  delivered  previous  to 
the  7th  March  is  undoubtedly  perfect,  in  consequence  of  the  absolute 
and  unconditional  delivery  to  him  by  the  plaintiff  of  all  such  parcels. 
The  nonsuit  was  therefore  beyond  all  question  correct  as  to  the  defend- 
ants, Thompson,  Schoonmaker,  and  Dean,  the  members  of  the  firm  of 
Thompson  &  Co.  But  for  the  reasons  before  assigned,  it  was  errone- 
ous as  to  Benjamin  Lynes. 

It  must  therefore  be  set  aside,  and  the  judgment  of  the  Superior 
Court  must  be  reversed.  Ordered  accordingly} 


f/)/  ^5  ^ 


Y    ■ 


«.\.>      vf  ISAAC  WAIT  ?;.  CHARLES  S.  GREEN. 

J^         ^  New  York  Court  of  Appeals,  March,  1867. 

>     ^^  [Reported  in  86  New  York  Reports,  555.] 


'& 


IT.  R.  3Iygatt,  for  the  appellant. 
.^  ^      J.  T.  Davis,  for  the  respondent. 

^v/  vJ^      BocKES,  J.     This  is  an  appeal  from  a  judgment  ordered  for  the  de- 
V^    fendant  at  General  Term. 

"\  The  case  is  this :  Catharine  Comins  sold  and  delivered  a  horse  to 

V  Thomas  E.  Billington,  and  took  his  note  for  $100,  at  five  months,  with 

J  \*  1  See  Fleeman  v.  McKean,  25  Barb.  474.  —  Ed. 


SECT.  III.]  WAIT   V.    GREEN.  729 

interest,  payable  at  the  Union  Bank,  Watertown.  Directly  under  the 
note,  and  on  the  same  piece  of  paper,  was  a  memoranrliun,  signed  by 
Billington,  as  follows  :  "  Given  for  one  bay  horse.  The  said  Mrs. 
Comins  holds  the  said  Ji0,rse. as  her  property  until  the  "above  note  is 
paid."  Mrs.  Comins  transferred  the  note,  with  the  memorandum  un- 
derwritten, before  due,  to  the  plaintiff,  calling  his  attention  at  the  time 
to  the  memorandum,  and  stating  that  it  was  guaranteed,  or  just  as 
good  as  guaranteed.  Billington  sold  and  delivered  the  horse  to  the 
defendant  for  a  full  consideration,  and  without  notice  to  the  latter  of 
the  condition  attached  to  the  sale  to  him.  The  note  was  not  paid  at 
maturity,  whereupon  the  plaintiff  demanded  the  horse  from  the  de- 
fendant. He  refused  to  surrender  it,  and  this  action  was  commenced 
for  its  recovery,  with  damages  for  its  detention. 

It  seems  to  have  been   assumed  that  the  transaction  between  the 
plaintiff  and  Mrs.  Comins  on  the  sale  of  the  note,  gave  the  former  all 
rififhts  in  regard  to  the  claim  on  the  horse  which  Mrs.   Comins  had. 
Such  was  evidently  the  clear  intention  and  understanding  of  the  par- 
ties.    But  it  is  unnecessary  in  this  case  to  consider  this  point  of  objec- 
tion.    Let  it  be  conceded  that  the  sale  and  delivery  was  conditional, 
that  the  agreement  was  that  the  horse  should  remain  the  property  of  Mrs. 
Comins  until  paid  for,  and  that  the  plaintiff  succeeded  to  all  her  rights, 
and  that  the  defendant  was  a  bona  fide  purchaser  from  Billington; 
and  the  authorities  are  full  to  the  effect  that  the  defendant  will  be  pro- 
tected in  his  title.     When  chattels  are  thus  sold  and  delivered  con-^ 
ditionally,  the  vendor's  right  to  the  property  remains  good  as  against  j 
the  vendee  and  his  voluntary  assignee,  and  others  who  purchase  with 
knowledge  of  the  condition,  but.jiot  as  against  bo)ia  fide  purchasers 
from  the  vendee.     2  Kent,  498  ;  6  Johns -"Ch.  438  ;  1  Ed.  Ch.  140  ;  3. 
D^ier,  352 ;  4  benio,  323-327;  6  Duer,  238;  25  Barb.  474;  1  Paige, 
312  ;  37  Barb.  509  ;  5  X.  Y.  41 ;  31  id.  507.     These  cases  are  not  all 
direct  decisions  on  the  question  under  consideration.     Several  of  them, 
however,  are  authoritative  in  support  of  the  proposition  above  stated. 
I  think  particular  reference  need  to  be  made  only  to  Smith  v.  Lynes, 
5  N.  Y.  41.     In  this  case  the  action  was  against  Lynes,  the  vendee, 
and  Thompson  &  Co.,  who  were  bona  fide  purchasers   of  part  of  the 
goods  from  Lynes.     This  court  held  that  if  the  sale  and  delivery  to 
Lynes  Avas  conditional,  no   title  passed  as  between  the  plaintiffs  and 
him,  but  that  good  title   was  obtained   by  Thompson  &  Co.,    in  so 
far  qs  they  were  bona  fide  purchasers  from  Lynes.     Paige,  J.,  in  de- 
liveiing  the  opinion  of  the  court,  says  :   "  As  to  all  the  goods  there- 
fore pui-chased  by  Thompson  &   Co.   from  L>-nes,    and  paid  for  by 
them,    they   are  entitled   to  the  protection   of  bona  fide  purchasers 
without  notice,  even  if  the  delivery  to  Lynes  was  conditional."    "  The 
nonsuit   was    therefore    beyond    all   question    correct   as   to   the   de- 
fendants Thompson,  Schoonmaker,  and  Dean,  the  members  of  the  firm 


730  BALLARD    V.    BURGETT.  [CHAP.  II. 

of  Thompson  &  Co."  This  decision  fully  sustains  the  opinion  expressed 
by  Strong,  J.,  in  Fleeman  v.  McKean,  25  Barb.  474,  483,  484,  to  the 
effect  that  Avhen  the  original  owner  voluntarily  places  the  goods  in  the 
hands  of  the  purchaser  and  thus  makes  him  the  ostensible  proprietor, 
a  sale  by  the  possessor  to  a  bo7ia  fide  dealer  without  notice  would  be 
valid  and  pass  the  title. 

The  judgment   in   this    case   is  right,  and   must  be  affirmed  with 
costs. 
^        All  concur.  Affirmed. 


0 
Si 


^ 


^  WILLIAM  W.  BALLARD  and  JOSEPH  C.  SAMPSON,  Resjyoii- 


J 


Vf      j^  dents,  V.  RICHARD  BURGP^TT,  Appellant. 

]     r^  New  York  Court  of  Appeals,  March,  1869. 

'     .'  \ 

")^  {Reported  in  40  New  York  Reports,  314.] 

^^  Kj     Appeal  from  a  judgment  of  the  General  Term  of  the   Supreme 
^  ,,)s,:    Court,  affirming  a  judgment  in  favor  of  the  plaintiffs,  entered  upon  the 
f*  x^    report  of  a  referee. 
^     V         The  facts  sufficiently  appear  in  the  opinions  of  the  court. 
>*  Hudson  Anslej/,  for  the  a]ipellant. 

■\''  Jenkins  and  Goodicill,  for  the  respondents, 

\  Grover,  J.     The  referee  finds  as  facts :  That  the  plaintiffs,  in  the 

month   of  October,  1865,  sold  the  oxen  in  question  to  one  William 

France  for  $180,  with  the  agreement  that  the  oxen  were  to  remain  the 

propert}^  of  the  plaintiffs  until  paid  for ;  that  France  had  never  paid 

the   plaintiffs  for   the    oxen ;  that   in   April,    1866,    said  France  sold 

and  delivered  the  oxen  to   defendant,  who   purchased  without   any 

notice  of  plaintiffs'  claim.     The  question  presented  by  this  appeal  is, 

whether  the  defendant,  by  virtue  of  his  purchase  of  the  oxen  from 

I  France,  has  acquired  title  thereto  as  against  the  plaintiffs.     From  the 

/facts  found,  the  defendant  must  be  regarded  as  a  bona  fide  purchaser 

from  France.     The  finding  of  the  referee  as  to  the  contract  between 

the  plaintiffs  and  France  is  a  little  obscure.     A  sale  and  delivery  of 

personal  property  by  one  person  to  another  is  incompatible  with  the 

ownership  of  such  property  continuing  in  the   seller.      A  sale, and 

delivery  of  personal  property  always,  when  consummated,  transfers  the 

title  from  the  seller  to  the  purchaser ;  but  the  referee  expressly  finds 

that  the  agreement  was  that  the  oxen  Avere  to  remain  the  property  of 

plaintiff  until  the  $180  Avere  paid.     It  is  manifest  that  the  referee  did 

not  intend  to  find  an  absolute  sale  and  delivery.     The  true  consti'uc- 

tion  of  the  finding  is,  I  think,  that  the  plaintiffs  agreed  with  France 


^^/t^^  Ci-i^^C>i^  <^^7T/t£^.  c^y^  '^',  j^-c^   c^*^t^  9/ic:  -^- 

SECT.  III.l  BALLARD    f.    BDRGETT.  7.^1,  .-      _ 

that  Avhen  he  should  pay  to  them  S180,  they  should  sell  him  the  oxen,  / 
and  that  until  such  payment  or  other  termination  of  the  contract,  he  / 
should  have  possession,  and  that  they  deliver  the  oxen  to  him  pursu- 
ant to  this  a^reeraent.  It  is  conceded  that  under  such  an  agreement 
France  acquired  no  valid  title  to  the  oxen,  and  that  upon  his  failure 
to  pay  pursuant  to  the  contract,  the  plaintiifs  had  as  against  him  a 
perfect  title.  But  it  is  claimed  that  France,  although  he  had  no  title 
himself,  but  only  the  right  to  acquire  title  by  paying  the  money,  never- 
theless, by  selling  to  a  bona  fide  purchaser,  such  purchaser  acquired 
from  him  a  valid  title  against  the  plaintiff.  If  this  be  so,  this  class  of 
cases  constitute  an  exception  to  the  general  rule,  that  a  purchaser  of 
personal  property  other  than  commercial  paper  acquires  no  better  title 
than  that  of  his  vendor.  There  are  some  exceptions  to  this  rule  ;  and 
it  is  claimed  by  the  counsel  of  the  appellant  that  this  is  one.  I  can 
conceive  no  substantial  principle  upon  which  such  an  exception  can  be  i 
sustained.  The  possession  of  the  contemplated  purchaser  gives  him  ' 
no  better  opportunity  to  impose  upon  purchasers  than  that  of  an  ordi- 
nary bailee.  In  the  latter  case,  it  has  never  been  clal med  that  any 
title  would  be  acquired  by  a  purchaser  from  such  bailee.  Posses- 
sion by  a  vendor  without  title  has  never  been  held  sufficient  to 
confer  a  title  upon  a  purchaser  from  him.  Clearly,  the  existence 
of  an  executory  contract,  by  which  a  vendor  not  in  possession  may 
acquire  title  upon  the  performance  of  some  act  by  him,  will  not  enable 
him  to  confer  a  title  u])on  a  purchaser  from  him.  If  neither  of  these 
facts,  separately  considered,  will  enable  a  vendor  to  confer  title,  I  am 
unable  to  see  how  such  result  can  be  produced  by  uniting  them  in  a 
vendor.  That  is  all  the  basis  of  the  defendant's  title.  It  is  insisted 
by  the  counsel  of  the  appellant  that  the  title  of  the  purchaser  in  this 
class  of  cases  is  established  by  the  authorities.  Wait  v.  Green,  36  N. 
Y.  556,  is  claimed  to  be  directly  in  point.  The  opinion  of  the  learned 
judge  would  seem  to  sustain  the  position  of  the  counsel ;  but  an  exam- 
ination of  the  facts  will  show,  I  think,  that  the  point  was  not  neces- 
sarily involved  in  the  decision  of  the  case.  The  facts  as  stated  are, 
that  Catherine  Comins  sold  and  delivered  a  horse  to  one  Billington, 
and  took  his  note  therefor  for  8100,  payable  in  five  months  with  inter- 
est. Directly  under  the  note,  and  on  the  same  piece  of  paper,  was  a 
memorandum,  signed  by  Billington,  as  follows:  "Given  for  one  bay 
hoi'se ;  the  said  Mrs.  Comins  holds  the  horse  as  her  property  until  the 
above  note  is  paid."  The  fair  intendment  from  the  above  fact  is,  I 
think,  that  Mrs.  Comins  intended  to  sell  and  deliver  the  horse  to  Bil- 
lington, and  transfer  the  title  to  him,  and  take  back  from  him  security 
for  the  payment  of  the  note  given  for  the  purchase  price  in  the  nature 
of  a  chattel  mortgage  upon  the  horse.  It  is  clear  that  had  the  horse 
died  without  fault  of  Billington,  before  the  payment  of  the  note,  such 
death  would  have  been  no  defence  to  an  action  on  the  note.     The 


732  BALLARD   V.    BURGETT.  [CHAP.  II. 


horse  was  at  the  risk  of  Billington.     This  is  a  strong,  if  not  conclu- 
sive circumstance,  showing  the  correctness  of  the  above  construction 
of  the  facts.     Not  so  in  the  case  at  bar.    Had  the  oxen  died  with- 
out  the  fault  of  France,  no    action   could   have   been   sustained  by 
the   plaintiffs  for   the    purchase-money.      That  in  no  event  could  be 
recovered  unless  the  plaintiffs  were  able  to  give  France   a   title   to 
the  oxen,  unless  their  ability  so  to  do  had  been  prevented  by  France. 
The  title  of  the  oxen  in  the  present  case  was  in  the  plaintiffs,  and 
they  were  at  their  risk.    Haggerty  v.  Palmer,  6  Johns.  Ch,,  was  cited  by 
the  learned  judge.     That  was  a  case  wliere  goods  were  sold  at  auction 
in  New  York,  to  be  paid  for  in  approved  indorsed  notes.     The  goods 
were  delivered  to  the  purchaser  without  delivery  of  the  notes.     The 
latter  assigned  them  to  a  trustee  for  the  benefit  of  creditors.    Held,  by 
the  chancellor,  that  the  trustee  was  accountable  to  the  vendor  for  the 
goods  and  their  proceeds.     The  point  adjudged  has  no  analogy  to  the 
present  case.     Buck  v.  Grirashaw,  1  Ed.  Ch.  140,  also  cited,  was  a  case 
where  Buck  sold  Grimshaw  a  quantity  of  cotton  for  cash  on  delivery ; 
a  part  was  delivered  Avithout  payment ;  Giimshaw  loaded  this  part  upon 
a  vessel,  and  received  a  bill  of  lading,  and  transferred  the  bill  of  lading 
to  Sands  &  Co.,  from  whom  he  received  advances  thereon ;  he  after- 
wards failed  without  having  paid  for  the  cotton  delivered.     Held,  that 
the  delivery  to  Grimshaw  was  absolute ;  that  the  title  of  the  cotton 
was  thereby  changed,  and  that  Sands  &  Co.,  who  had  made  advances 
upon  the  bill  of  lading,  could  hold  it  against  the  vendor.     It  may  be 
remarked,  that  this  falls  within  the  class  of  cases  where  sales  have  been 
made  for  cash  on  delivery,  and  the  property  has  been  delivered  without 
exacting  payment,  [and]  it  has  been  held  that  the  title  passed  by  deliv- 
ery, and  the  vendor  retained  a  lien  upon  the  property  for  the  purchase- 
money,  but  that  such  lien  was  not  available  against  a  bona  fide  pur- 
chaser of  the  property.      In    Caldwell   v.   Bartlett,  3  Duer,  341,  the 
question  was  whether,  where  the  owner  delivered  goods  upon  a  con- 
tract of  sale,  intending  to  part  with  the  property  to  a  fraudulent  pur- 
chaser, such  owner  can  reclaim  the  goods  from  a  honafide  purchaser 
from  the  fraudulent  vendee.     Held,  that  he  could  not.     The  rule  acted 
upon  in  this  case  is  sustained  by  numerous  authorities.     This  rule  was 
recoonized  in  Beavers  v.  Lane,  6  Duer,  232 ;  and  in  the  same  case  it 
was  held,  that  where  the  delivery  was  upon  condition  that  immediate 
payment  should  be  made,  the  vendor,  in  case  it  was  not  made,  could 
not  recover  the  property  from  one  who  purchased  from  his  vendor  in 
ifnorance  of  such  condition.     The  latter  position  is  identical  Avith  the 
principle  recognized  by  Buck  v.  GrimshaAV,  supra.     An  examination  of 
Covin  V.  Hill,  4  Denio,  will  show  that  the' points  decided  give  no  sup- 
port to  the  rule  contended  for  by  the  appellant's  counsel  in  this  case. 
The  same  remark  applies  to  Fleeman  v.  McKean,  25  Barb.  474,  as  to 
the  questions  decided,  although  some  remarks  in  the  opinion  may  seem 


SECT.  III.]  .     ■   BALLARD    V.    BURGETT.  733 

to  conntcnnnce  it.  The  case  principally  relied  on  is  that  of  Smith  v. 
Lynes,  1  Selden,  41.  All  that  was  (Ictennincfl  by  this  case  was,  that 
where  the  sale  is  upon  condition  that  the  goods  should  be  paid  for  on 
delivery,  and  they  are  delivered  without  payment  being  made,  a  bona 
fide  purchaser  from  the  vendee  acquires  a  title,  discharged  of  the  lien 
for  the  purchase-money.  Crocker  v.  Crocker,  31  N.  Y,  507,  holds  that, 
where  the  legal  title  to  corporate  stock  was  in  the  hands  of  one  charged 
with  a  trust  in  behalf  of  another,  a  purchaser  from  the  trustee,  ignorant 
of  the  trust,  acquires  a  good  title.  Keeler  v.  Field,  1  Paige,  31'2,  in- 
volved only  the  question  whether  a  vendor  who  was  to  receive  pay- 
ment upon  delivery,  but  who  had  delivered  the  goods  without  payment, 
could  enforce  his  lien  against  one  Avho  had  received  the  goods  from  the 
vendee  as  security  for  an  antecedent  debt.  Held,  that  he  could.  The 
question  in  the  Western  Transportation  Co.  v.  Marshall,  37  Barb.  5u9, 
appealed  in  this  court,^  Avas  whether  a  vendor  for  cash  on  delivery,  who 
had  made  delivery  without  payment,  and  who  had  permitted  the  ven- 
•dee  to  load  the  goods  upon  a  vessel,  and  receive  a  bill  of  lading  there- 
for, could  recover  the  goods  from  the  owner  of  the  vessel,  or  the  holder 
of  the  bill  of  lading,  who  had  made  advances  thereon  to  the  purchaser. 
It  Avas  held  that  he  could  not.  It  Avill  be  seen  that  in  no  one  of  the 
cases  referred  to  in  Wait  v.  Green  has  it  been  determined  that  one  to 
whom  property  has  been  delivered  without  any  intention  to  transfer 
the  title,  upon  a  contract  for  a  sale  in  future,  upon  payment  being  made 
of  a  certain  sum,  and  that  in  the  mean  time  the  contem]ilated  pur- 
chaser shall  enjoy  the  use  of  the  property,  can  confer  a  good  title  to  a 
purchaser  from  him.  In  Herring  v.  Hoppock,  15  N.  Y.  409,  it  Avas  de- 
termined by  this  court,  that  one  Avho  has  bai-gained  for  the  purchase  of 
a  chattel,  and  agreed  to  pay  therefor  at  a  future  day,  and  has  received 
a  delivery  under  an  agreement  that  no  title  should  vest  in  him  until 
payment,  acquired  no  title ;  and  that  a  creditor  of  such  person,  Avho  had 
levied  an  execution  thereon,  Avas  liable  to  the  OAvner  for  the  conversion 
of  the  chattel.  This  Avould  be  decisiA^e  of  the  present  case,  unless  it  be 
held  that  chattels  so  delivered  are  to  be  placed  upon  the  same  ground 
as  commercial  pa])er  in  respect  to  purchasers.  A  like  doctrine  was  held 
by  the  Supreme  Court  of  Vermont,  in  BigcloAv  v.  Huntley,  8  Vermont, 
151.  This  precise  question  Avas  determined  by  the  Sujn-enie  Court  of 
Massachusetts,  in  Sargent  v.  Metcalf,  5  Gray,  300,  where  it  Avas  held 
that  the  purchaser  acquired  no  title.  The  same  rule  Avas  held  by  the 
Supreme  Court  of  Connecticut,  in  Hart  v.  Carpenter,  24  Ccnn.  427. 
My  conclusion  both  upon  principle  and  authority  is,  that  the  iniichaser 
from  France  acquired  no  title,  and  that  the  judgment  of  the  Supreme 
Court  affirming  that  of  the  referee  should  be  affirmed.- 

1  See  G  Abb.  Pr.  Rep.  n.  s.  280.— Ed. 

2  Lott  J.,  delivered  a  concurring  opinion. — Ed. 


734  WHITEHOUSE    V.    FROST.  [CHAP.  11. 

All  the  judges  concurred  for  affirmance,  except  James  and  Murray, 
JJ.,  who  could  not  distinguish  the  case  from  Wait  v.  Green,  36  N.  Y. 
556.  i  Jxidgment  affirmed. 


r^ 


0^  \.i-"    V 


V  V  .^^ 


^7  7^<r/-rrj'^/»r-z  '^ 

SECTION/ IV. 

^Ar        ^  Sales  of  Goods  not  Specified. 

"l^FWHITEIIOUSE  xsD  Others,  Assignees  of  Towj^send,  a  BanTc- 
rupt,  V.  J.  FROST  and  L.  FROST,  DUTTON,  and  BAN- 
CROFT. 

In  the  King's  Bench,  July  6,  1810. 

[Reported  in  12  East,  614.] 


In  trover  to  recover  the  value  of  some  oil,  the  property  of  the  bank- 
;j^    v^  \  rupt,  Avhich  Avns  tried  at  Lancaster,  in  March  last,  a  verdict  was  found 
);;    Nj  t  for  the  plaintiffs  for  £390,  subject  to  the  opinion  of  the  court  on  the 
"^     \j  s,  folloAving  case  :  — 

tj>^     ^K*      The  plaintiffs  are  assignees  of  John  Townsend,  late  a  merchant  at 

\^     Xiiverpool;  the  two  Frosts  are  merchants  and  partners  in  Liverpool; 

NT  ■  M  *  and  the  other  defendants,  Dutton  &  Bancroft,  are  also  merchants  and 

vT    \U  partners  in  the  same  town.      On  the  7th  of  February,  1809,  Townsend 

\$:^  si  -  ^  pxirchased  fi-om  the  defendants,  J.  &  L.  Frost,  ten  tons  of  oil,  at  £39 

V    ^^^  per  ton,  amounting  to  £390,  for  which  ToAvnsend  was  to  give  his  ac- 

1    ^  ^^^  ceptance  payable  four  months  after  date ;  and  a  bill  of  parcels  was 

V  V     ^  i    rendered  to  Townsend  by  the  Frosts,  a  copy  of  which  is  as  follows  :  — 


^ 


Liverpool,  7th  February,  1809. 

Mr.  JouN  Townsend,  Bought  of  J.  &  L.  Fkost, 

V.  Ten  tons  Greenland  -whale  oil  in  Mr.  Staniforth's  cisterns,  at  your  risk, 

V         at  £39 "^**?^.     .     .     .     ,     .'"     ....     £390 


^  ^1809.     February  14.     By  acceptance £390 

<i  \n  P  '  For  J.  «fe  L.  F.,  Wm.  Pemberton. 

Kj    "-"^  T\  The  said  ten  tons  of  oil  at  the  time  of  his  purchase  were  part  of  forty 
Nv^tons  of  oil  lying  in  one  of  the  cisterns  in  tlie  oil-house  at  Liverpool,  . 
the  key  of  which  cistern  was  in  the  custody  of  the  other  defendants, 
Dutton  &  Bancroft,  who  had  before  that  time  purchased  from  J.  R. 


V-^' 


-C^t.^x.^^jc^    l.^-fct«^ 


SECT.  IV.]  "■ T^  WHITEHOUSE    W.    FROST. 


&  J.  Fremc,  of  Liverpool,  merchants,  the  said  forty  tons  of  oil  in  the 
same  cistern;  and  upon  such  purchase  received  from  the  Fremes  the 
key  of  the  cistern.  Afterwards  Dutton  &  Bancroft  sold  ten  of 
the  forty  tons  they  had  so  bought  (being  the  ten  tons  in  question)  to 
the  defendants,  the  Frosts,  who  sold  the  same  in  the  manner  before 
stated  to  Townsend.  On  the  7th  of  February,  the  day  on  which 
Townsend  bought  the  ton  tons  of  oil,  he  received  from  the  defendants, 
Frosts,  an  order  on  Dutton  &  Bancroft,  who  held  the  key  of  such 
cistern,  they  having  other  interest  therein  as  aforesaid,  to  deliver  to  him, 
Townsend,  the  said  ten  tons  of  oil ;  a  copy  of  which  is  as  follows :  — 

Messrs.  Dutton  &  Bancroft, 

Please  to  doHverthe  bearer,  Mr.  John  ToAvnsend,  ten  tons  Greenland  whale  oil, 
we  purchased  from  you  8th  November  last. 

(Signed)  J.  &  L.  Frost. 

The  order  was  taken  to  Dutton  &  Bancroft  by  Townsend,  and  ac- 
cepted by  them  upon  the  face  of  the  order  as  follows :  "  1809.  Accepted, 
14th  PY'bruary.  Dutton  &  Bancroft."  Townsend  according  to  the 
terms  of  the  bill  of  parcels,  namely,  on  the  14th  of  February,  18U9, 
gave  to  the  defendants.  Frosts,  his  acceptance  for  the  amount  of  the  oil, 
payable  four  months  after  date  ;  but  which  acceptance  has  not  been 
paid.  Townsend  never  demanded  the  oil  from  Dutton  ct  Bancroft, 
who  had  the  custody  of  it.  The  oil  was  not  subject  to  any  rent ;  the 
original  importer  having  paid  the  rent  for  twelve  months,  and  sold  it 
rent  free  for  that  time,  which  was  not  expired  at  Townsend's  bank- 
ruptcy. On  the  23d  of  May,  1809,  about  three  months  after  the  pur- 
chase of  the  ten  tons  of  oil,  a  commission  of  bankrupt  issued  against 
Townsend,  under  which  he  was  duly  declared  a  bankrupt,  and  the  plain- 
tiffs appointed  his  assignees.  At  the  time  of  the  purchase,  and  also  at 
the  time  of  Townsend's  being  declared  a  bankrupt,  the  oil  was  lying  in 
the  cistern  mixed  with  other  oil  in  the  same;  and  some  time  after- 
wards the  defendants  refused  to  deliver  the  same  to  the  plaintiffs,  not- 
withstanding a  demand  was  made  for  the  same  by  the  assignees,  and  a 
tender  of  any  charges  due  in  respect  thereof  When  the  whole  of  the 
oil  lying  in  any  of  the  cisterns  in  the  oil-house  is  sold  to  one  person, 
the  purchaser  receives  the  key  of  the  cistern ;  but  Avhen  a  small  parcel 
is  sold,  the  key  remains  with  the  original  owner ;  and  the  purchaser  is 
charged  in  proportion  to  the  quantity  of  oil  sold,  with  rent  for  the  same, 
until  delivered  out  of  the  oil-house,  unless  such  rent  be  paid  by  the 
original  im]iorter,  as  was  the  fact  in  the  present  case.  If  the  plaintitfs 
were  entitled  to  recover,  the  verdict  wajir  to  stand ;  if  not,  a  nonsuit 
was  to  be  entered. 

There  was  a  similar  action  by  the  same  plaintiffs  against  J.  R.  Freme 
and  J.  F'reme,  Dutton,  and  Bancroft,  the  circumstances  of  which  were 
in  substance  the  same. 

/ 


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736  WHITEHOUSE   V.    FROST.  [CHAP.  II. 

«7i  CkirA-e,  for  the  plaintiffs,  contended  that  there  was  snch  a  con- 
structiA' e  delivery  of  the  ten  tons  of  oil  to  the  bankrupt  before  his  bank- 
ruptcy as  was  sufficient  to  vest  the  property  of  it  in  him.  The  oil  was 
at  the  time  in  the  hands  of  third  j^ersons,  who  had  the  key  of  the  ware- 
house ;  and  therefore  the  vendors  could  not  make  an  actual  or  manual 
delivery  of  it,  or  of  the  key  of  the  warehouse  ;  but  they  did  that  which 
was  equivalent ;  for  they  gave  to  Townsend  an  order  of  delivery  upon 
their  immediate  vendors,  who  continued  to  retain  the  actual  custody  of 
it  blended  with  the  remainder,  their  own  property ;  and  by  their  ac- 
ceptance of  that  order,  they  must  be  taken  to  have  agreed  to  hold  the 
ten  tons  as  bailees  of  the  vendee.  In  Ruo;g  v.  Minett,-^  Lord  Ellen- 
borough  said  that  "  every  thing  having  been  done  by  the  sellers  which 
lay  i;pon  them  to  perform,  in  order  to  put  the  goods  in  a  deliverable 
state  in  the  place  from  whence  they  were  to  be  taken  by  the  buyers, 
the  goods  remained  there  at  the  risk  of  the  latter ; "  and  that  distin- 
guishes this  case  from  Hanson  v.  Meyer,^  where  the  vendor  gave  a  note 
to  the  vendee  addressed  to  the  warehouse-keeper,  directing  him  to 
weigh  and  deliver  to  the  vendee  all  his  starch ;  there  something  re- 
mained to  be  done,  namely,  the  weighing  by  the  warehouse-keeper, 
before  the  property  passed.  But  here  it  is  expressly  stated  in  the 
bought  and  sold  note  of  the  7th  of  February,  that  the  ten  tons  in  Mr. 
Staniforth's  cistern  were  at  the  risk  of  Townsend,  the  purchaser.  So  in 
Harman  and  others,  assignees  of  Dudley,  a  bankrupt,  v.  Anderson,^  the 
purchaser  of  goods  having  received  from  the  vendor  an  order  for 
the  delivery  of  them  addressed  to  the  wharfinger  in  whose  Avarehouse 
the  goods  lay,  the  lodging  of  such  order  with  the  wharfinger  by  the 
purchaser  was  held  by  this  court  to  be  a  complete  delivery  to  him,  so 
as  to  take  away  the  vendor's  right  to  stop  the  goods  in  transitu.  And 
in  Chaplin  v.  Rogers,*  Avhich  was  the  case  of  a  sale  of  a  haystack,  Lord 
Kenyon  said  :  "  Where  goods  are  ponderous  and  incapable  of  being 
handed  over  from  one  to  another,  there  need  not  be  an  actual  delivery  ; 
but  it  may  be  done  by  that  which  is  tantamount,  such  as  the  delivery 
of  the  key  of  a  warehouse  in  which  the  goods  are  lodged,  or  by  deliv- 
ery of  other  indicia  of  property."  And  Elmore  v.  Stone  ^  is  strong  to 
the  same  effect ;  for  there  the  agreement  of  the  vendor  himself  to  keep 
the  horses  at  livery  which  he  had  sold  to  the  vendee,  was  held  to  be  a 
sufiicient  delivery  to  take  the  case  out  of  the  Statute  of  Frauds.  [Loed 
Ellen:borough,  C.  J.  The  general  doctrine  will  not  be  disputed,  that 
there  may  be  a  symbolical  delivery  of  goods.  It  was  lately  held  in  a 
case  in  the  House  of  Lords,  that  there  might  be  an  executed  delivery 
of  goods  without  any  change  of  place  of  them.  The  only  argument 
I  presume  Avill  be,  that  the  ten  tons  of  oil,  before  they  were  measured 

1  11  East,  217. 

2  6  East,  614  ;  and  vide  Zagury  v.  Fiirnell,  2  Campb.  N.  P.  Cas.  240. 

3  2  Campb.  243.  *  l-East,  192  &  1  Taunt.  458. 


SECT.  IV.]  WHITEHOUSE    V.    FROST.  737 

out  from  tlie  whole  quantity,  were  not  in  a  deliverable  state,  and  that 
till  that  was  done  they  were  not  capable  of  delivery;  I  do  not  mean  to 
say  what  the  value  of  that  argument  is.]  The  drawing  of  that  off 
from  the  rest  was  not  to  be  the  act  of  the  vendors,  but  of  tlie  vendee ; 
and  that  is  the  distinction,  that  nothing  here  remained  to  be  done  by 
the  vendors. 

Scarlett,  contra,  relied  on  the  circumstance  that  the  ten  tons  till 
measured  off  were  not  in  a  deliverable  state  in  fact,  and  if  so,  there 
could  not  be  a  symbolical  delivery  of  them.  No  specific  ten  tons  Avere 
vested  in  the  Frosts,  and  therefore  none  such  could  be  conveyed  to  the 
bankrupt;  in  such  a  case  the  measuring  off  must  of  necessity  precede 
the  vesting  of  the  property.  [Giiosk,  J.  Su])posing  a  third  j)erson 
had  taken  the  whole  forty  tons  tortiously,  could  not  the  vendee  have 
brought  his  action  of  trover  for  the  ten  tons?]  As  against  a  wrong- 
doer perhaps  the  court  would  not  regard  the  actual  condition  of  the 
projierty.  But  suppose  thirty  of  the  tons  were  tortiously  taken,  how 
could  it  be  told  whether  the  ten  which  remained  were  or  were  not  the 
specific  tons  belonging  to  the  vendee.  [Le  Blaxc,  J.  The  same  ob- 
jection might  be  made  if  the  vendee  had  paid  for  the  ten  tons.  Lord 
Ellenbokough,  C.  J.  Suppose  the  Avhole  had  been  distrained  for  rent 
due  from  Dutton  &  Bancroft,  whose  share  would  cover  the  rent,  and 
Townsend  had  brought  replevin,  and  recovered ;  would  the  sheriff  have 
to  measure  out  the  ten  tons?  I  throw  it  out  for  consideration  ;  perhaps 
he  would  incidentally  have  the  power  of  dividing  it,  the  quantity  being 
certain.  It  is  a  different  case  where  the  goods  remain  in  the  same 
hands,  as  the  bailee  of  the  vendee,  or  as  the  original  seller;  in  the 
former  case  the  vendor  holds  them  in  a  new  character.]  Here  there 
was  nothing  to  discriminate  the  specific  ten  tons  from  the  rest. 

Lord  Ellenijokough,  C.  J.  This  case  presents  a  difference  from 
the  ordinary  cases  which  have  occurred  where  the  sale  has  been  of 
chattels  in  their  nature  several,  and  where  the  transfer  of  the  property 
from  the  vendor  by  means  of  an  order  for  delivery  addressed  to  the 
wharfinger  or  other  person  in  whose  keeping  they  were,  and  accepted 
by  him,  has  been  held  to  be  equivalent  to  an  actual  delivery ;  the  goods 
being  at  the  time  capable  of  being  delivered.  Here,  however,  there  is 
this  distinguishing  circumstance,  that  the  ten  tons  of  oil  till  measured 
off  from  the  rest  was  not  capable  of  a  separate  delivcrv;  and  the  ques- 
tion  is,  whether  that  be  a  distinction  in  substami'  or  in  ^-cnrDlaiu'C  onlj;. 
The  ^hole  forty  t'dhs'were  at  one  time  the  property  of  Dutton  & 
Bancroft,  who  had  the  key  of  the  cistern  which  contained  them  ;  and 
they  sold  ten  tons  to  the  Frosts,  who  sold  the  same  to  Townsend,  the 
bankrupt,  and  gave  him  at  the  same  thne  an  order  on  Dutton  &  Ban- 
croft for  the  delivery  to  liim  of  the  ten  tons.  To  that  order  Dutton 
&  Bancroft  attorn,  as  I  may  say ;  for  they  accept  the  order,  by  writing 
upon  it  "Accepted,  14th  of  February,  1809,"  and  signing  their  names 


738  WHITEHOUSE    V.    FROST.  [CHAP.  II. 

to  it.  From  that  moment  they  became  the  bailees  of  Townsend,  the 
vendee;  the  goods  had  arrived  at  their  journey's  end,  and  were  not  i7i 
transitic ;  all  the  right  then  of  the  sellers  was  gone  by  the  transfer,  and 
they  could  no  longer  control  that  delivery  to  which  they  had  virtually 
acceded  by  means  of  their  order  on  Dutton  &  Bancroft  accepted  by  the 
latter.  The  question  of  stopping  in  transitic  does  not  arise,  taking 
the  Frosts  to  be  the  original  sellers,  as  between  them  and  the  bankrupt ; 
the  oil  had  never  been  in  the  hands  of  the  Frosts ;  they  only  assigned 
a  right  to  it  in  the  hands  of  the  common  bailees,  which  before  had  been 
assigned  to  them. 

Grose,  J,  There  can  be  no  doubt  that  at  the  time  of  Townsend's 
bankruptcy  the  ten  tons  of  oil  in  the  cistern  Avere  at  the  risk  of  the 
bankrupt.  All  the  delivery  which  could  take  place  between  these  par- 
ties had  taken  place.  Dutton  &  Bancroft,  who  had  the  custody  of 
the  whole  in  their  cistern,  had  accepted  the  order  of  the  sellers  for  the 
delivery  to  the  bankrupt,  and  it  only  remained  for  Townsend,  together 
with  Dutton  &  Bancroft,  to  draw  off  the  ten  tons  from  the  rest. 

Le  Blanc,  J.  Dutton  &  Bancroft  had  sold  the  ten  tons  of  oil  in 
question  (which  was  part  of  a  larger  quantity,  the  whole  of  which  was 
under  their  lock  and  key)  to  the  Frosts,  who  sold  the  same  to  Town- 
send  ;  and  there  is  no  claim  on  the  part  of  the  defendants,  Dutton  & 
Bancroft,  to  detain  the  oil  for  warehouse  rent.  The  Frosts  never  had 
any  other  possession  of  the  oil  than  through  Dutton  &  Bancroft ;  but 
they  gave  to  Townsend  an  order  on  these  latter  to  deliver  it  to  him ; 
and  after  the  acceptance  of  that  order  Dutton  &  Bancrott  held  it  for 
his  use.  But  something,  it  is  said,  still  remained  to  be  done,  namely,  the 
measuring  off  of  the  ten  tons  from  the  rest  of  the  oil.  Nothing,  how- 
.aicaL,j:iiHiame44QM4<mei^  the  sale.    The  objection, 

only  applies  where  something  remains  to  be  done  as  between  the  buyer 
and  seller,  or  for  the  purpose  of  ascertaining  either  the  quantity  or  the 
price,  neither  of  which  remained  to  be  done  in  this  case;  for  it  was 
admitted  by  the  persons  Avho  were  to  make  the  delivery  to  Townsend, 
that  the  quantity  mentioned  in  the  order  was  in  the  cistern  in  their 
custody,  for  they  had  before  sold  that  quantity  to  the  Frosts,  of  whom 
Townsend  purchased  it,  and  had  received  the  price.  Therefore,  though 
something  remained  to  be  done  as  between  the  vendee  and  the  per- 
sons who  retained  the  custody  of  the  oil,  before  the  vendee  could  be 
put  into  separate  possession  of  the  part  sold,  yet  as  between  him  and 
his  vendors  nothing  i-eraained  to  perfect  the  sale. 

Bayley,  J.  There  is  no  question  of  transitus  here  ;  the  goods  were 
at  their  journey's  end.  When,  therefore,  Dutton  &  Bancroft,  who 
were  then  the  owners  of  the  whole,  sold  ten  tons  of  the  oil  to  the 
Frosts,  those  ten  tons  became  the  property  of  the  Frosts ;  and  when 
they  sold  the  same  to  Townsend,  and  gave  him  an  order  upon  Dutton 
&  Bancroft  for  the  delivery  of  the  ten  tons  purchased  of  them,  the 


SECT.  IV.]  WALLACE   V.    BREEDS. 


739 


effect  of  that  order  Avas  to  direct  Button  &  Bancroft  to  consider  as 

the  property  of  Townsend  the  ten  tons  in  their  possession,  which  before 

was  considered  as  the  property  of  the  Frosts;  and  by  the  acceptance  of 

o,        that  order  Button  &  Bancroft  admitted  that  they  held  the  ten  tons 

'  ^        for  Townsend,  as  liis  property;  and  lie  had  a  right  to  go  and  take  it,  " 

vi  \^hout  the  interference  of  the  Frosts.  Posted  to  the  jyhdntiffs. 

"-j  J^  "y^ALLACE -^^\ND    Others,   Assignees    of  Anderson   and   Eades, 
(N,  i     ^  Bankrupts,   v.   BIIEEBS    and  Another.      -\  y' 

rj    i  ><  In  THE  Klvg's  Bench,  May  21,  1811.  i  . 

J    V    '^  [Reported  in  13  East,  522.]  .         ^  / 


^_  ^  In  trover  for  fifty  tons  of  Greenland  oil,  a  verdict  Avas  found  for  the    \ 

vT^   plaintifls  for  £2200  at  the  trial  before  Lord  Ellenborough,  C.  J.,  at  l/^  di'\ 
^,  i       Guildhall,  subject  to  the  opinion  of  the  court  on  this  case: —  i        . 

'^j  Anderson  &  Eades   being   traders   and   copartners,  on   the    1st  of  l/^jLt/'X 

^  I^V'  February,  1810,  before    their   bankruptcy,  purchased   of  Ileselton  &     p      s 

,       ■^<'-  Smith,  through  their  brokers  Bay  &  Pierce,  fifty  tons  of  Greenland    v  ^^•'^••'*- 

3^  ijjy  oil,  then  lying  at  Griffin's  Wharf,  in  casks,  at  £44  per  ton,  to  be  paid  for   ^y*  ^ 
^  V ,  by  the  buyers'  acceptance,  at  four  months  from  the  expiration  of  four-  ^ 
\    t  teen  days;    and  the  following  sale-note  was  thereupon  delivered  to  C/>T? — 
^^  N^  Anderson  &  Eades :  —  /  /'/  A 

>s^     ^.         Sold  for  Ileselton  &  Smith  to  Anderson  &  Eades  fifty  tons  of  Greenland/  _   — 

^kN  '"v:*^  oil  at  £44  pt-r  ton,  in  casks,  to  be  received  at  Griffin's  Wharf  in  fourteen  days, 
and  p;iid  for  by  the  buyers'  acceptance,  at  four  months  from  the  expiration  of 
fourteen  days.     Allowance  for  foot-dirt  and  water  as  customary. 

Day  &  Pierce,  Brokers. 
February  1,  IS  10. 

The  defendants  are  wharfingers  and  copartners,  and  carry  on  their 
business  at  Griffin's  Wharf,  where  the  oil  purchased  Avas  lying.  On  the 
13th  of  February,  1810,  Anderson  &  Eades  applied  by  letter  to  He- 
selton  &  Smith  lor  an  order  of  delivery  of  the  oil ;  which  order  Avas 
given  as  folloAvs :  — 

Messrs.  Breeds  «&  Farncomb,  Griffin's  Wharf: 
Pleasi-  to  deliver  to  Messrs.  Anderson  &  Eades  tifty  tons  of  our  Greenland  oil, 

ex  ninety  tons. 

H.  &S. 
February  15,  1810. 

The  order  Avas  sent  to  the  defendants'  wharf,  and  received  by  their 
clerk  in  their  counting-house  on  the  loth  of  February.     On  the  14th, 


740  •        WALLACE   V.    BREEDS.  [CHAP.  II. 


Anderson  &  Eades  being  then  in  insolvent  circumstances,  the  order 
was  countermanded  by  Heselton  &  Smith ;  and  at  the  time  of  such 
countermand  nothing  had  been  done  upon  the  order :  the  oil  remained 
in  the  same  state  as  at  the  time  of  sale.  The  oil  has  since  been  de- 
livered to  Heselton  &•  Smith  by  the  defendants.  On  the  4th  of 
April,  1810,  Anderson  &  Eades  became  bankrupts:  shortly  after- 
wards a  commission  was  duly  issued  against  them,  under  which  the 
plaintiffs  were  chosen  assignees,  and  on  the  15th  of  June,  1810,  de- 
manded the  50  tons  of  oil  from  the  defendants.  Before  Greenland 
oil  is  delivered,  it  is  the  constant  custom  to  have  the  casks  searched 
by  a  cooper  employed  by  the  seller ;  and  it  is  also  the  custom  for  a 
broker,  on  behalf  both  of  the  buyer  and  seller,  to  attend  to  make  a 
minute  of  the  foot-dirt  and  water  in  each  cask ;  and  the  casks  are  then 
filled  up  by  the  seller's  cooper  at  the  seller's  expense,  and  delivered  in 
a  complete  state,  containing  the  quantity  sold ;  none  of  which  circum- 
stances had  taken  place  at  the  time  of  the  countermand.  At  the  time 
of  the  sale  and  countermand  Heselton  &  Smith  had  90  tons  of  oil, 
contained  in  180  casks,  lying  at  the  defendants'  wharf  If  the  plain- 
tiffs were  entitled  to  recover,  the  verdict  was  to  stand  ;  if  not,  then  a 
nonsuit  was  to  be  entered. 

Scarlett,  for  the  plaintiffs,  contended  that  the  property  in  the  50 
tons  of  oil  passed  to  the  bankrupts,  upon  the  order  for  delivery  to 
them  fi-om  the  sellers,  received  by  the  defendants,  the  wharfingers,  on 
the  day  before  the  countermand.  He  compared  this  to  the  case  of 
Whitehouse  v.  Frost,^  where  a  similar  order  for  delivery  of  10  out  of 
40  tons  of  oil,  the  whole  of  which  remained  in  the  custody  of  the  orig- 
inal owners  (which  order  was  made  by  the  former  purchaser  of  tjie  10 
tons,  and  was  accepted  by  the  original  owners,  but  not  measured  out 
by  them),  was  held  to  pass  the  property  to  the  sub-vendees  of  the  10 
tons,  who  afterwards  became  bankru])ts  before  the  delivery.  And  he 
endeavored  to  distinguish  this  from  Rugg  v.  Minett,^  which  was  a  sale 
of  turpentine  in  casks,  by  auction,  at  so  much  a  cwt.,  where  the  casks 
were  to  be  taken  at  a  certain  marked  quantity ;  except  the  two  last, 
out  of  which  the  seller  Avas  to  fill  up  all  the  rest  before  they  were 
delivered.  There  the  property  in  the  casks  which  were  filled  up  was 
held  to  pass  to  the  purchasers,  notwithstanding  they  remained  in  the 
warehouse  of  the  seller  ;  but  it  was  not  held  to  pass  in  those  casks 
which  remained  to  be  filled  up  by  the  seller,  nor  in  the  two  last,  which 
were  sold  at  uncertain  quantities.  But  there  the  price  could  not  be 
ascertained  till  the  casks  were  filled  up,  the  turpentine  having  been 
sold  by  the  cwt. ;  nor  as  to  the  two  last  casks,  till  the  actual  measure- 
ment of  what  remained  after  filling  up  the  rest :  the  contract,  there- 
fore, was  not  completed  for  want  of  ascertaining  the  quantity  sold, 

1  12  East,  614.  2  n  East,  210. 


SECT.  IV.] 


AUSTEN    V.    CRAVEN. 


741 


"svliich  was  to  be  done  by  tbe  seller.  Whereas  here  the  sale  was  of  a 
sjiecific  quantity,  and  at  a  certain  ])rice  ;  and  nothing  remained  to  be 
done  to  ascertain  either  the  quantity  ^  or  the  price,  but  only  it  was  to 
be  measured  out  by  the  wharfingers,  as  in  Whitehouse  v.  Frost  it  was 
to  be  measured  out  by  the  original  owners,  in  whose  custody  it  re- 
mained. And  as  to  the  custom  for  the  seller's  cooper  to  search  the 
casks  previous  to  the  delivery  of  the  oil,  that  cannot  vary  the  quantity 
or  price  of  it,  and  so  cannot  affect  the  contract  of  sale  ;  nor  can  tbe 
subsequent  allowance  for  foot-dirt  water,  which  was  to  be  ascertained 
by  the  common  agent  of  the  buyer  and  seller. 

LoHD  Er.i.ENBORouGii,  C.  J.  The  difference  between  this  case  and 
that  of  Whitehouse  v.  Frost  is,  that  tliere  nothing  remained  to  be 
done  by  the  seller  in  order  to  complete  the  sale  as  between  him  and 
the  buyer ;  but  here  it  is  expressly  found  that  some  things  did  remain 
to  be  done  by  the  seller  Avhich  were  to  precede  the  delivery  to  the 
buyer :  the  casks  were  to  be  searched  by  a  cooper  employed  by  the 
seller,  and  after  the  foot-dirt  and  water  in  each  cask  were  ascertained 
by  the  broker  attending  on  behalf  of  both  parties,  the  casks  were  to 
be  filled  up  by  the  seller's  cooper  at  his  expense,  and  delivered  in  a 
complete  state,  containing  the  quantity  sold.  These  were  material 
acts  to  be  done  by  the  seller  before  the  delivery  to  the  buyer :  and  the 
courts  have  frequently  laid  hold  of  circumstances  like  these  to  retain 
the  property  in  favor  of  the  unpaid  seller;  and  before  the  oil  was 
measured  out  and  these  things  were  done,  the  delivery  was  counter- 
manded. 

The  other  judges  concurred  in  a  judgment  of  nonsuit  to  be  entered. 


1 


AUSTEN 


-f^ 


CRAYEN   AND 


i-ti^, 


2;»>l'^ 


ANOTHER.      X     -   tr%^    , 

X     P  n  ^^ 

In  the  Common  Pleas,  November  10,  1812.  ■' 


■i 


[Reported  in  4  Taunton,  644.] 

The  plaintiff's  declaration  contained  two  counts  in  case,  founded  on 
a  breach  of  the  duty  which  he  averred  to  arise  out  of  a  sale  made 
of  sugars  by  the  defendants  to  Kruse,  and  a  further  sale  by  Kruse  to 
the  plaintiff;  and  also  a  count  in  trover  for  sugars.  Upon  the  trial  of 
the  cause  at  the  sittings  after  Hilary  term,  1812,  at  Guildhall,  before 
Mansfield,  Ch.  J.,  it  appeared  that  the  plaintiff  had  in  his  two  first 
counts  incorrectly  described  the  contract ;  it  therefore  became  a  ques- 


1  Vide  Zagury  v.  Furnell,  2  Campb.  N.  P.  Cas.  240. 
VOL.  I.     .  48 


S^  26 


7//i^^  ^  //^/^ 


742  AUSTEN    V.    CRAVEN.  [CHAP.  II. 

tion  whether  the  plaintiff  eonld  recover  in  trover  under  the  following 
circumstances:  On  the  7th  of  December,  1809,  the  defendants,  who 
were  sugar  refiners,  entered  into  a  contract  to  sell  to  Renold  Dresden 
(who  was  clerk  of,  and  bought  for  the  use  of  Kruse)  50  hogsheads  of 
sugar,  the  quality  of  which  was  described  as  being  double  loaves,  at 
100s.  per  cwt.,  50  hogsheads  of  the  quality  described  as  Turkey  B.  at 
855.,  50  hogsheads  of  the  quality  called  Turkey  C.  at  75^.,  and  50 
others  of  the  quality  called  Turkey  A.  at  108s.,  to  be  deliverecHVee  on 
b9fli4_aJBi'iii§.^  ship.  They  were  to  be  paid  for  at  the  expiration  of 
four  months,  allowing  two  months'  interest,  the  seller  paying  all  ex- 
penses up  to  the  1st  day  of  April,  1810;  after  that  time,  if  not  shipped, 
the  buyer  was  to  pay  expenses  ;  and  it  was  agreed  that  Kruse  should 
give  the  defendants  his  guaranty  in  writing  for  R.  Dresden.  The 
seller  of  sugars,  upon  delivering  them  on  board  a  British  ship  for  ex- 
portation, becomes  entitled  to  receive  a  considerable  drawback,  which 
is  paid  him  by  the  government.  The  appellations  given  to  the  several 
parcels  of  sugar  denoted  certain  qualities  of  sugar  known  in  the  trade. 
Kruse  being  in  embarrassed  circumstances,  on  the  30th  of  January, 
not  having  then  named  any  British  ship  on  board  of  which  the  sugars 
or  any  of  them  should  be  delivered,  nor  having  paid  for  them,  and  no 
part  of  them  having  been  delivered,  he  resold  to  the  defendants,  at  an 
advanced  j^rice,  the  150  hogsheads  lastly  named  in  the  original  con- 
tract, and  shortly  after  he  contracted  to  sell  to  the  plaintiff  the  50 
hogsheads  of  double  loaves,  and  gave  the  defendants  an  order  to  de- 
liver them  to  the  plaintiff.  The  plaintiff  gave  notice  to  the  defendants 
of  his  intended  contract,  and  inquired  whether  they  had  50  hogsheads 
of  sugar  belonging  to  Kruse,  and  whether  he,  the  plaintiff,  might  safely 
purchase  them  of  Kruse,  and  pay  him  the  price,  to  which  they  answered 
in  the  affirmative,  and  said  that  they  had  the  50  hogsheads  and  would 
deliver  them.  The  plaintiff  thereupon  paid  Kruse  the  price  at  which 
lie  had  contracted  for  them,  and  required  the  defendants  to  deliver 
"fchem,  which  they,  being  unable  to  obtain  payment  from  Kruse,  refused 
to  do,  whereupon  the  plaintiff  brought  this  action ;  and  it  was  urged 
for  him  that,  although  ordinarily  a  vendor  has  the  right  to  detain  the 
■goods  which  he  contracts  to  sell  until  he  is  paid  for  them,  yet  that 
these  defendants,  having  told  the  plaintiff  that  he  might  safely  buy  and' 
pay  Kruse,  could  not  afterwards  set  up  that  lien.  For  the  defendants 
it  was  objected  that  no  specific  50  hogsheads  had  been  so  separated 
from  the  defendants'  stock  as  to  enable  the  plaintiff  to  recover  in 
trover.  The  jury  found  a  verdict  for  the  plaintifl^,  subject  to  this  objec- 
tion, which  was  I'eserved  by  the  chief  justice ;  and  in  Easter  term, 
/Shejy/ierd,  Serjt.,  obtained  a  rule  nisi  to  set  aside  the  verdict,  and 
enter  a  nonsuit,  against  which 

Vciicghan,  Serjt.,  now  showed  cause;  he  relied  chiefly  on  the  case  of 
Whitehouse  v.  Frost,  12  East,  614,  where  after  a  purchase  of  40  tons  of 


SECT.  IV.]  AUSTEN    V.  CRAVEN,  743 

oil  in  one  cistern,  and  a  resale  of  10  tons  thereof,  it  was  held,  that  the 
purchaser  of  the  10  tons  could  recover  for  them  in  trover,  without  any 
previous  separation.  [The  court  manifested  considerable  doubts  upon 
that  decision  ;  and  Heath,  J.,  asked,  if  10  tons  had  leaked  out  of  the 
cistern,  to  whom  those  10  tons  should  be  deemed  to  belong?]  Ilar- 
man  v.  Anderson,  2  Camp.  N.  P.  24.8.  After  an  invoice  of  goods  lying 
in  a  warehouse  at  a  wharf,  and  an  order  to  the  wharfinger  to  deliver 
them  to  the  vendee,  and  an  actual  transfer  made  in  the  w  liarfinger's 
books  to  the  name  of  the  purchaser,  it  was  held  that  the  right  of  stop- 
page in  transitu  ceased ;  and  the  like  law,  although  the  wharfinger 
had  not  made  a  transfer  in  his  books.  It  a])pears  by  the  delendant's 
admission,  that  these  goods  had  been  separated  from  the  bulk  of  their 
stock,  for  they  said  they  had  the  50  hogsheads  belonging  to  Kruse, 
which  they  would  deliver  to  the  plaintiff.  If  they  had  any  50  hogs- 
heads of  that  quality  in  their  warehouse,  they  must,  after  that  declar- 
ation, be  deemed  to  have  appropriated  them  to  the  plaintifl^"  and  could 
not  say  that  they  were  not  his  property.  [Ginns,  J.  Their  language 
is  explained  by  the  other  evidence  :  their  admission  is,  that  they  have 
entered  into  a  contract  for  the  sale  of  200  hogsheads  to  Kruse,  out  of 
which  they  will  deliver  these  50  in  part  performance.]  Tlie  weight  of 
hogsheads  of  sugar  varies  but  little,  and  is  well  known  in  the  market ; 
and  every  thing  is  to  be  intended  in  support  of  a  verdict. 

Shepherd  and  I^est,  Serjts.,  in  support  of  the  rule.  It  is  not  the  usage 
of  the  trade  to  pack  the  loaves  which  the  refiners  manufiicture,  into 
hogsheads,  until  they  are  wanted  to  be  so  packed  for  the  purpose  of 
exportation,  and  it  by  no  means  follows  because  a  manufacturer  who 
agrees  to  furnish  certain  goods,  and  to  pack  them  in  a  particular  way, 
happens  to  have  one  parcel  of  goods  of  that  description  so  packed  at 
the  time  of  making  his  contract,  that  the  contract  shall  therefore  attach 
npon  that  very  parcel.  This  is  merely  a  contract  for  certain  quantities 
of  sugar  of  certain  qualities,  not  in  existence  at  the  time  of  the  con- 
tract. In  the  sale  of  the  oil  were  several  ingredients  not  found  here. 
First,  it  was,  from  the  date  of  the  contract,  to  be  at  the  pui-chaser''s 
risk;  next,  the  specific  oil  was  in  existence,  contained  in  a  particular 
place,  and  vessel  named;  thirdly,  Dutton  &  Bancroft,  the  original 
owners,  had  made  a  complete  transfer  of  the  whole  40  tons  to  the 
Frosts;  whereas  here,  even  if  the  sugars  contracted  for  existed  i?i 
specie,  there  was  nothing  like  a  delivery  to  Kruse  of  the  possession, 
nor  had  Kruse  ever  done  that  which  Avas  necessary  to  entitle  himself 
to  the  possession.  The  plaintiff,  too,  demanded  a  simple  delivery  of 
the  goods,  whereas,  in  order  that  the  defendants  might  avail  themselves 
of  the  drawback,  he  had  no  right  to  require  the  sugars  to  be  delivered 
elsewhere  than  on  board  a  British  ship,  which  he  omitted  to  name : 
that  sti)»ulation  is  introduced  into  the  contract  for  the  defendants' 
benefit.     Nor  could  the  price  be  ascertained   until  the  sugars   were 


744  WHITE   V.   WILKS.  [CHAP.  II. 

weighed  off,  which  had  never  been  performed ;  for  different  hogsheads 
of  sugar  vary  much  in  Aveight,  and  the  goods  are  sold  at  so  much  per 
cwt.  Hanson  v.  Meyer,  6  East,  614.  But,  what  is  stronger,  there  is 
no  proof  that  the  defendants  ever  had  any  sugars  of  this  quality  in  a 
state  capable  of  being  weighed. 

Mansfield,  C.  J.  What  the  plaintiff's  counsel  says  would  have 
been  an  answer  to  the  objection,  if  there  had  been  a  specific  quantity 
of  loaves  in  esse ;  although  it  was  part  of  the  contract  that  they  were 
to  be  delivered  on  board  a  British  ship,  there  would  have  been  con- 
version enough.  But  certainly,  upon  the  evidence,  there  is  no  answer- 
ing the  objection.  Trover  cannot  be  maintained  but  for  specific  goodj 
Any  sugars  of  required  quality  would  have  satisfied  this  contract.  It 
is  a  contract  for  a  certain  quantity  of  a  specified  quality  of  sugars.  I 
say  nothing  on  the  case  of  the  oil ;  there  it  is  held  that  trover  will  lie 
for  a  specific  quantity  of  a  liquid,  mixed  with  a  certain  other  quantity 
of  the  same  liquid,  without  its  ever  having  been  separated  ;  how  it  is 
to  be  distinguished  from  the  mass,  I  know  not ;  but  that  case  stands 
quite  on  its  own  bottom ;  it  is  unlike  other  cases. 

GiBBS,  J.     We  need  say  nothing  on  that  case ;  sufiice  it  that  it  is 
very  distinguishable  from  this.  Hide  absolute. 


WHITE    AND    Others,   Assignees    of    SHUTTLEWORTH    and 
Another,  £anh-upt,  v.  WILKS. 

In  the  Common  Pleas,  November  9,  1813. 

[Reported  in  5  Taunton,  176.] 

This  was  an  action  of  trover  for  linseed  oil,  tried  at  the  sittings  in 
London,  after  Trinity  term,  1813,  before  Mansfield,  C.  J. :  the  case  was, 
that  Cleasby,  the  broker  for  both  parties,  inade  out  and  delivered  to 
the  bankrupts  a  note  of  sale,  as  follows :  — 

London,  January  14,  1812. 

Messrs.  Sliuttleworth  &  Goodfellow  bought  of  Matthias  Wilks,  20  tons  of 
oil  at  60Z.,  —  1200Z.  Mr.  Wilks  holds  the  above  oil  in  cisterns  for  Messrs. 
Shuttleworth  &  Goodfellow's  accommodation,  charging  Is.  per  ton  per  week 
rent. 

A  further  contract  was  also  written  in  these  terms :  — 

London,  January  14,  1812. 
Bought  this  day  by  order  of  Messrs.  Shuttleworth  &  Goodfellow,  of  Matthias 
Wilks,  20  tons  of  linseed  oil,  at  60Z.  per  ton,  usual  allowances,  to  be  delivered 
in  one  month,  and  paid  for  in  four  days,  by  their  acceptance  at  four  months. 


SECT.  IV.]  WHITE   V.   WILKS.  T45 

• 

In  pursuance  of  these  terms  a  bill  was  presented  to  the  bankrupts 

for  acceptance,  and  being  called  for  on  the  day  on  which  the  bankrupts 

stopped  ))aynient,  was  given  u])  not  accei)ted,  for  which  a  cause  was  at 

the  same  time  assigned,  that  the  seller  refused  to  give,  at  the  end  of 

the  four  days,  an  order  for  the  delivery  of  the  oil  to  the  bankrupts. 

At  the  time  of  making  this  contract,  the  defendant,  who  was  an  oil- 

•         •        •  1 

merchant,  was  possessed  of  large  quantities  of  od,  lying  m  several 

different  cisterns,  at  different  warehouses;  no  particular  cistern  or  ware- 
house was  mentioned  to  the  buyers  as  that  from  which  the  oil  sold  to 
the  bankru])ts  was  to  be  taken,  nor  did  the  broker  know  where  the 
particular  oil  lay  which  was  to  satisfy  this  contract,  nor  was  any  spe- 
cific quantity  of  twenty  tons  weighed  out  for  the  purchaser.  Before 
oil  is  actually  delivered,  it  is  the  custom  of  the  trade  to  weigh  it  out, 
and  se[)arate  it  from  the  mass,  after  which  an  order  is  given  to  the 
warehouse-keeper  to  deliver  it  to  the  purchaser.  The  vendor,  upon 
application,  had  refused  to  deliver  the  oil  to  the  plaintiffs.  Lens,  Serjt., 
for  the  plaintiffs,  contended,  upon  the  authority  of  the  decision  of  the 
Court  of  King's  Bench,  in  Whitehouse  v.  Frost,  12  East,  614,  and 
Hurry  v.  Mangles,  1  Camp.  N.  P.  452,  that  the  sale  in  this  case  was 
complete,  and  the  plaintiffs  entitled  to  recover ;  he  relied  on  the  con- 
tract that  the  goods  should  remain  in  the  vendor's  warehouse  at  a 
certain  rent,  as  equivalent  to  an  actual  admeasurement  and  delivery. 
Shepherd,  Serjt.,  for  the  defendant,  contended  that  there  had  been  no 
complete  sale,  because  no  specific  portion  of  the  oil  had  been  sold,  and 
there  had  been  no  delivery.  Mansfield,  C.  J.,  was  of  opinion,  following 
the  cases  of  Zagury  v.  Furnell,  and  Austen  v.  Craven,  that  there  was 
no  complete  sale,  because  the  contract  did  not  attach  upon  any  partic- 
ular parcel  of  oil,  nor  had  there  been  any  actual  delivery,  and  non- 
suited the  plaintiffs. 

Zetis  now  moved  to  set  aside  the  nonsuit  and  have  a  new  trial,  upon 
the  authority  of  the  cases  which  he  had  cited  at  the  trial. 

Mansfield,  C.  J.  In  the  case  of  Austen  v.  Craven,  this  court,  in 
direct  opposition  to  the  cases  cited,  held  that  trover  Avould  not  lie  for 
sugars  which  had  not  been  specifically  separated  from  the  vendor's 
stock;  and  although  the  objection  was  not  made  fully  comprehensible 
upon  the  first  trial  of  that  cause,  yet  as  soon  as  it  came  to  be  stated  in 
court,  it  became  too  clear  to  be  resisted ;  and  although  the  case  was  an 
extremely  hard  one,  inasmuch  as  the  very  persons  who  refused  to  de- 
liver the  sugars  had  told  the  purchaser  that  he  might  safely  pay  the 
bankrupt  for  them,  we  held  that  he  could  not  recover,  and  unless  it 
can  be  shown  that  that  decision  was  wrong,  it  is  impossible  that  the 
plaintiffs  should  prevail  in  this  case.  The  objection  here  is,  that  no 
sp^t'cific  quantity  of  oil  was  sold.  The  quantity  agreed  to  be  sold  was 
mixed  with  a  much  larger  quantity;  and  not  only  that,  but  it  was 
mixed  with  several  different  quantities  :  how  was  it  to  be  separated  ? 


• 


746  WHITE   V.    WILKS.  [CHAP.  II. 

In  the  cases  where  the  payment  of  rent  for  warehouse  room  has  been 
an  ingredient  to  make  a  complete  sale,  the  question  has  always  been 
on  the  constructive  delivery,  not  on  the  separation  of  the  goods  from 
the  mass ;  in  all  those  cases  there  has  been  a  complete  separation  of 
the  goods  sold,  and  the  only  doubt  has  been,  whether  there  were  a 
symbolical  delivery.  This,  too,  is  the  case  of  a  liquid,  which  makes 
the  difficulty  much  greater  than  in  the  case  of  a  solid  substance.^ 

Heath,  J.  The  payment  of  rent  is  not  equivalent  to  a  delivery  of 
the  goods.  Suppose  a  part  of  the  oil  in  some  of  these  cisterns  were 
lost  or  burnt,  who  is  to  know  whether  it  is  the  vendor's  or  the  pur- 
chaser's oil  that  is  destroyed?  We  do  not  pretend  to  reconcile  the 
case  of  Austen  v.  Craven  with  that  of  Whitehouse  v.  Frost ;  it  would 
be  impossible  so  to  do ;  and  unless  the  plaintiff  can  overthrow  that 
case,  it  is  impossible  to  grant  a  new  trial  here  :  there  are,  besides,  num- 
bers of  old  cases,  in  which  it  has  been  held,  that  the  plaintiff  could 
not  succeed  for  want  of  a  sufficient  certainty  and  separation  of  the 
goods  sold. 

The  court  refused  the  laile. 

Chambee,  J.,  was  absent  in  consequence  of  indisposition. 

1  The  ingenious  experiments  of  Count  Rumford  have  demonstrated  that  every 
change  of  temperature  in  the  particles  of  a  fluid,  occasions  a  change  in  tlie  relative 
local  position  of  those  particles ;  those  which  receive  an  increase  of  heat  becoming 
specifically  lighter,  and  immediately  rising  to  the  top,  and  those  which  give  out  their 
heat  and  become  cold,  becoming  at  the  same  time  specifically  heavier  by  reason  of 
their  condensation,  and  consequently  sinking  to  the  bottom  ;  hence  it  follows  that  if 
the  vendor  of  a  portion  of  a  fluid  should,  upon  a  contract  of  sale,  attempt,  without 
previously  drawing  it  oflT,  to  assign  to  the  buyer  any  specific  portion  of  the  mass  less 
than  the  whole,  as,  for  instance,  that  part  which  at  the  time  of  the  contract  constitutes 
the  uppermost  twenty  tons,  or  the  lowermost  twenty  tons  in  the  vat,  it  would  be  im- 
possible for  him  specifically  to  fulfil  such  a  contract;  for,  as  the  temperature  of  the 
atmosphere  is  continually  changing  with  every  cloud  that  intercepts  the  rays  of  the 
sun,  and  with  every  alteration  of  the  wind,  the  particles  that  formed  the  portion  ex- 
pressed to  be  sold,  would  instantly  after  the  contract  made  begin  to  be  displaced,  and 
to  be  replaced  by  others  ;  and  it  would  be  an  absolute  miracle  if  that  very  assemblage 
of  particles  which  at  the  time  of  the  contract  occupied  the  part  of  the  vessel  afiected 
to  be  sold,  should,  after  such  repeated  mixtures  with  the  residue  of  the  mass,  have 
reassembled  in  their  original  position,  just  at  the  moment  when  the  purchaser  came 
to  draw  off  what  he  had  bought. 


SECT.  IV.]  BUSK   V,    DAVIS.  747 


BUSK  AXD   A>'OTHER  V.   DAVIS   AND   Anotiier. 
In  the  King's  Bench,  February  9,  1814. 

[Reported  in  2  37ai(/e  ^-  Selwyn,  397.] 

Trover  for  flax.  At  the  trial  before  Lord  Ellenborough,  C.  .T.,  at 
the  London  sittings  after  last  terra,  it  ap]>earefl  that  the  plaintiffs,  in 
September,  1812,  having  about  18  tons  of  Riga  flax,  then  lying  in  mats 
(and  entered  as  mats)  at  the  defendants'  wharf,  sold  a  part  of  it, 
through  tlie  intervention  of  a  broker,  to  one  Bromer.  The  sold  note 
was  in  the  following  terms  :  — 

Sold,  on  account  of  Busk  &  Co.,  10  tons  of  Riga  flax,  marked  P  D  R.,  at 
Davis's  wharf,  sound  and  of  a  merchantable  quality,  "  ex"'  the  Vrow  Maria,  at 
£118  per  ton,  the  amount  to  be  paid  by  the  buyer's  acceptance  at  three  months 
from  to-day,  allowing  6  months  and  14  days  discount.  Tare  and  draft  as  cus- 
tomary, 

London,  Sept.  23,  1812.  » 

A  few  days  afterwards  the  plaintiffs  gave  Bromer  the  following 
written  order  on  the  defendants,  which  was.  immediately  sent  by 
Bromer  to  the  defendants,  and  entered  in  their  books :  — 

Messrs.  D.wis  &  Co., 

Ph-asf  deliver  to  Mr.  D.  Bromer  or  order  ten  tons  Riga  P  D  R  flax,  "  ex  " 
Vrow  Maria.  Busk  &  Co. 

Sept.  23,    Oct.  7,  1812. 

It  is  usual  to  allow  14  days  for  delivery,  during  which  time  the 
sellers  are  liable  for  warehouse  rent,  and  the  purchaser  afterwards. 
On  the  17th  of  October  (after  the  14  days  had  expired)  Bromer  stopped 
payment,  and  the  flax  remaining  at  Davis's  wharf  in  the  same  state  as 
at  the  time  of  sale,  the  plaintiffs  gave  an  order  countermanding  the 
delivery.  Kiga  flax  is  usually  imported  in  mats,  varying  in  quantity 
from  3  to  5  or  6  cwt.  The  quantity  is  ascertained  by  being  weighed 
by  the  wharfinger.^  The  sale  of  10  tons  may  require  the  flax  mats  to 
be  broken,  and  tare  and  draft  must  be  deducted  before  the  bill  of 
parcels  can  be  made  out.  The  tare  is  allowed  by  the  weight,  for  the 
weight  of  mat  and  ropes;  14  lbs.  upon  mats  under  3  cwt.,  and  20  lbs. 
upon  mats  of  3  cwt.  and  over.     Draft  is  2  lbs.  per  mat.     The  plaintifls 

^  Wlien  the  rule  nisi  was  moved,  Le  Blanc,  J.,  inquired  who  was  to  he  at  the  ex- 
pense of  tlie  weijiliinrr,  and  said  it  mifiht  be  material  to  ascertain  that  fact;  but  upon 
showing  cause  it  did  not  appear  that  that  fact  had  been  agreed  ;  it  seems  to  have  been 
considered  that  the  wharfingers  were  at  least  the  agents  of  both  parties. 


748  BUSK  V.  DAVIS.  [chap.  II. 

had  not  received  any  return  of  the  weight  from  the  whai-fingers. 
Under  these  circumstances  his  lordship  Avas  of  opinion  that  as  an 
ulterior  process  of  weighing  was  to  be  performed  by  the  seller  before 
the  delivery  could  take  place,  the  transfer  of  the  property  to  the  buyer 
was  not  complete,  that  process  not  having  been  performed ;  and  there- 
upon a  verdict  was  found  for  the  plaintiffs. 

Park  obtained  a  rule  nisi  for  a  new  trial,  and  relied  on  Harman  v. 
Anderson,^  Whitehouse  v.  Frost,^  and  Jackson  v.  Anderson.^ 

Scarlett  and  Brougham  showed  cause,  and  contended  that  the  sale 
was  not  so  complete  as  to  vest  the  property  in  Bromer,  and  preclude 
the  plaintiffs  from  countermanding  the  order  for  delivery.  This  was 
a  sale  of  a  certain  quantity  of  flax,  the  delivery  of  which  was  to  be 
ascertained  by  weight,  which  weighing  was  to  be  done  by  the  wharf- 
ingers as  agents  for  the  sellers,  and  until  that  was  done,  it  remained 
in  fieri  what  portion  of  the  whole  bulk  was  to  be  delivered  in  order  to 
satisfy  the  quantity  sold.  Therefore,  though  the  price  and  quantity 
were  certain,  yet  the  precise  thing  to  be  delivered  was  uncertain,  and 
what  remained  to  be  done  for  ascertaining  it  was  necessarily  to  pre- 
cede the  delivery,  and  so  this  case  is  governed  by  Wallace  v.  Breeds  * 
and  Hanson  v.  Meyer.'^  In  the  former  it  was  stated  to  be  usual,  after 
sale,  for  the  cooj^er  of  the  seller  to  search  the  casks  of  oil,  and  for  the 
broker  of  both  j^arties  to  examine  them  with  a  view  to  certain  allow- 
ances, and  then  the  casks  were  filled  up  by  the  seller ;  in  the  latter, 
there  was  no  doubt  as  to  what  was  to  be  delivered,  for  it  was  a  sale  of 
all  the  starch,  but  the  weighing  was  necessary  to  the  ascertainment  of 
the  price ;  and  in  both  it  was  adjudged  that  these  acts  which  were  to 
precede  the  delivery  were  essential  to  complete  the  transfer,  and  that 
the  property  was  not  divested  out  of  the  vendors  by  the  mere  sale  and 
order  on  the  wharfingers  to  deliver,  but  that  the  vendors  might,  upon 
the  insolvency  of  the  vendees,  countermand  the  delivery.  And  in  this 
case,  if,  after  the  sale,  a  fire  had  consumed  the  flax  upon  the  defend- 
ants' wharf,  according  to  Rugg  v.  Minett,^  the  loss  would  not  have 
fallen  upon  the  vendee.  As  to  Whitehouse  v.  Frost,  there  are  the 
same  circumstances  of  difference  between  the  present  and  that  case 
that  Lord  Ellenborough,  C.  J.,  pointed  out  between  Wallace  v.  Breeds  '^ 
and  that  case  ;  and  his  lordship  added  that  the  courts  frequently  laid 
hold  of  such  circumstances  to  retain  the  property  in  favor  of  the  un- 
paid seller.  And  if  those  two  cases  should  be  thought  inconsistent 
with  each  other,  it  may  be  observed  that  Wallace  v.  Breeds  is  later, 
and  was  decided  upon  consideration  of  the  former  case.  In  Harman 
V.  Anderson  there  could  be  no  doubt  that  the  transfer  was  complete, 

1  2  Canipb.  N.  P.  C.  243.  2  12  East,  614.  3  4  Taunt.  24. 

*  13  East,  522.  5  6  East,  G14. 

6  11  East,  210.     See  also  Zagury  v.  Furnell,  2  Campb.  N.  P.  C.  240. 

7  13  East,  625. 


SECT.  IV.]  BUSK   V.    DAVIS.  749 

because  no  weighing  was  necessary  to  the  delivery,  nor  was  any  allow- 
ance to  be  made,  neither  was  there  any  uncertainty  as  to  the  ])recise 
tiling  to  be  delivered,  but  the  delivery  was  symbolically  executed  as 
much  as  if  the  goods  had  been  delivered  into  the  party's  own  hands. 

Park  and  Taddi/,  contra,  admitted  the  rule  to  this  extent,  that  if 
any  thing  remained  to  be  done  between  vendor  and  vendee  in  order 
to  complete  the  sale,  the  contract  was  still  open  ;  but  they  denied  that 
such  Avas  the  case  here.  And  they  rested  their  argument  mainly  on 
Whitehouse  v.  Frost,  and  the  language  of  Le  Blanc,  J.,  in  that  case,^ 
that  "the  objection  only  applies  where  something  remains  to  be  done 
as  between  the  buyer  and  seller,  or  for  the  purpose  of  ascertaining 
either  the  quantity  or  price."  Now  here  both  price  and  quantity,  as 
it  is  admitted,  were  ascertained  by  the  contract ;  and  nothing  remained 
to  be  done  as  between  the  buyer  and  seller,  although  the  whartingers, 
before  they  could  finally  execute  the  order  for  delivery,  were  to  ascer- 
tain it  by  weighing.  Therefore,  again,  in  the  words  of  Le  Blanc,  J.,  in 
the  same  case,  "  though  something  remained  to  be  done  as  between 
the  vendee  and  the  ])ersons  who  retained  the  custody  of  the  flax,  be- 
fore the  vendee  could  be  put  into  separate  possession  of  the  ])art  sold, 
yet  as  between  him  and  his  vendors,  nothing  remained  to  perfect  the 
sale."  The  weitrhinfr  was  not  an  ingredient  in  the  contract,  but  was 
rather  like  the  weighing  in  Hammond  v.  Anderson,-  for  the  satisfaction 
of  the  buyer,  whereas  the  case  has  been  argued  as  if  it  were  a  sale  not 
of  an  ascertained  quantity,  but  of  an  unascertained  number  of  mats  to 
be  ascertained  bv  weiuhinEC.  And  Jackson  v.  Anderson,^  as  well  as 
Whitehouse  v.  Frost,  shows  that  an  order  for  the  transfer  of  jiart  of  an 
integral  quantity  will  vest  the  property  in  that  part,  though  it  be  inter- 
mixed with  and  not  separated  from  the  whole.  The  case  of  Hanson  v. 
Meyer  might  have  apjilied  if  the  price  here  had  been  made  to  depend 
upon  the  weighing ;  and  so,  perhaps,  might  AVallace  v.  Breeds,  if  the 
order  for  delivery  there  had  been  entered  in  the  wharfingers'  books,  but 
at  the  time  of  the  countermand  nothing  had  been  done  upon  the  order. 

Lord  Ellenborough,  C.  J.  The  question  in  this  case  is  whether  the 
pro[)erty  has  been  so  ascertained  as  to  be  considered  in  law  as  eftectually 
delivered,  the  oi'der  to  deliver  having  been  given  to  the  wharfingers, 
and  entered  in  their  books.  That  would  not  of  itself  be  sufficient 
unless  the  flax  were  in  a  deliverable  state,  and  if  farther  acts  were 
necessary  to  be  done  by  the  seller  to  make  it  so.  Here  it  appears  that 
farther  acts  were  necessary,  for  the  flax  was  to  be  weighed,  and  the  por- 
tion of  the  entire  bulk  to  be  delivered  was  to  be  ascertained,  and  if  the 
weight  of  any  number  of  unbroken  mats  was  insutticient  to  satisfy  the 
quantity  agreed  upon,  it  would  have  been  necessary  to  break  open  some 
mats  in  orjer  to  make  up  that  quantity.    Therefore  it  was  impossible  for 

1  12  East,  621.  "^  1  N.  R.  69.  3  i  Taunt.  24. 


750  BUSK   V.    DAVIS,  [chap.  II. 

the  puvcliaser  to  say  that  any  precise  number  of  mats  exchisively  be- 
longed to  him.  If  the  weight  did  not  divide  itself  in  an  integral 
manner,  it  would  be  necessary  to  break  up  and  take  some  fraction  of 
another  mat.  Every  component  part,  therefore,  was  uncertain  :  it  was 
uncertain  how  many  gross  mats  there  would  be,  or  what  fraction  of  a 
broken  mat ;  for,  as  it  has  been  suggested,  any  certain  number  of  mats 
miglit  fall  short  of  the  entire  precise  quantity  of  ten  tons.  That  is 
only  one  circumstance  to  shew  that  there  was  some  uncertainty  at  the 
time  of  the  contract,  which  was  to  be  reduced  to  certainty  by  some- 
thing to  be  done  afterwards,  that  is,  by  weighing,  in  order  to  ascertain 
the  entire  quantity.  If,  then,  some  further  acts  were  to  be  done  in 
order  to  regulate  the  identity  and  (if  I  may  use  such  a  phrase)  the 
individuality  of  the  thing  to  be  delivered,  I  cannot  say  that  it  was  in 
a  state  fit  for  immediate  delivery,  and  that  the  order  to  deliver  entered 
in  the  wharfingers'  books  operated  as  a  complete  delivery.  I  think 
this  case  falls  within  the  authority  of  Wallace  v.  Breeds,  and  that  the 
delivery  was  incomplete  at  the  time  of  the  countermand. 

Le  Blanc,  J.  The  question  is  between  the  vendor  and  vendee. 
The  difficulty  arises  from  not  keeping  that  correctly  in  view.  The 
question  is,  whether  every  thing  has  been  done  as  between  them  to 
complete  the  delivery  ;  if  not,  the  vendor  had  a  right  to  countermand 
the  delivery.  The  contract  was  for  a  specific  quantity;  the  price  was 
ascertained;  the  order  for  delivery  had  been  sent  to  the  wharfingers, 
and  they  had  accepted  and  entered  it  in  their  books  ;  and  14  days 
were  allowed  for  the  deliverv,  from  which  time  the  goods  Avere  to  lie 
at  the  wharf  at  the  charge  of  the  vendee.  But  another  thing  was 
necessary  to  make  this  symbolical  delivery  equivalent  to  an  actual 
delivery.  It  was  to  be  ascertained  what  particular  goods  the  vendee 
was  to  have.  Now  that  is  the  point  where  this  case  is  defectiA'e.  The 
vendor  had  a  much  larger  quantity,  not  lying  together  in  one  mass, 
but  in  several  packages,  which  it  was  necessary  to  divide  before  it 
could  be  ascertained  what  part  was  his  and  what  was  to  belong  to  the 
purchaser.  Ton  tons  out  of  the  18  were  to  be  delivered,  and  in  order 
to  do  that  it  was  necessaiy  to  ascertain  how  many  mats  or  packages 
constituted  the  precise  quantity  of  10  tons,  or  what  aliquot  part  of  a 
mat  or  package,  which  was  to  be  done  by  the  weighing  of  the  wharf- 
inger, who  was  the  agent,  for  this  purpose,  of  both  parties.  It  was  the 
same  thing,  therefore,  as  if  the  weighing  had  been  to  be  performed  by 
the  vendor  and  vendee,  or  in  their  presence.  Now  that  has  not  been 
done ;  and,  therefore,  the  jiarticular  portion  of  the  goods  that  was  to 
belong  to  the  vendee  has  not  been  ascertained  as  between  them.  This 
circumstance  distinguishes  the  case  from  Wliitehouse  v.  Frost,  which 
has  been  most  pressed  in  argument.  And  in  all  the  other  oases  where 
something  remained  to  be  done  to  ascertain  either  the  price,  or  quan- 
tity, or  thing  to  be  delivered,  a  symbolical  delivery  has  been  holden 


SECT.  IV.]  BUSK   V.    DAVIS.  751 

not  to  suppl}fctlie  place  of  an  actual  delivery.  Here  something  was  to 
be  done  not  to  ascertain  the  price  or  rjuantity  (thouirh  upon  the  quan- 
tity of  mats  and  ro)»es  -would  depend  what  was  to  be  the  allowance  for 
tare  and  draft,  but  I  lay  that  out  of  the  question),  yet  something  was 
to  be  done  to  ascertain  the  individuality.  In  Whitehouse  v.  Frost,  the 
owner  of  a  large  quantity  of  oil  in  the  mass  sold  a  certain  quantity  of 
it  to  B,  Avho  contracted  to  sell  the  same  to  C,  specifically  as  an  un- 
divided quantity,  and  gave  him  an  order  upon  the  owner  for  the  deliv- 
ery, which  oi-der  the  owner  accepted.  The  question  that  arose  was 
not  between  the  owner  and  B,  but  between  C  and  B,  who,  as  far  as  it 
was  in  his  power,  had  done  every  act  to  complete  the  delivery,  for  he 
only  pretended  to  sell  an  undivided  quantity.  Therefore,  whatever 
miirht  have  been  the  case  as  between  the  owner  and  B,  the  court  were 
of  opinion  that  as  betAveen  the  stiljvendee  and  ]>,  the  sale  Avas  com- 
plete, B  having  done  all  that  could  be  done,  as  between  them,  to  make 
the  deliveiy  effectual.  Here  it  apj^ears  that  all  had  not  been  done  by 
both  parties  to  ascertain  Avhat  Avas  to  be  delivered,  and  until  that  Avas 
done,  the  symbolical  delivery  left  the  transaction  incomplete. 

Bayley,  J.  I  am  of  the  same  opinion.  In  the  case  of  Whitehouse 
V.  Frost,  nothing  remained  to  be  done  by  the  seller,  and  on  that  ground 
the  decision  of  that  case  Avas  founded.  There  the  vendor  sold  an  un- 
divided one-fourth  part  of  the  quantity.  The  court  must  have  jtro- 
ceeded  on  the  rule  laid  do\A'n  in  Rugg  v.  Minett,  because  that  case  had 
been  recently  decided,  and  they  had  it  then  before  them.  There  the 
party  bought  a  number  of  casks  of  turpentine,  Avhich  Avere  to  be  filled 
up  by  the  vendor ;  all  Avere  filled  x\p  exce])t  ten,  and  the  property  of  all 
those  Avhich  Avere  filled  up  Avas  considered  as  having  passed  to  the  A'en- 
dees ;  but  as  to  the  others,  that  it  remained  in  the  vendor,  and  the  Avhole 
having  been  consumed  by  fire,  that  the  ten  casks  continued  at  the 
vendor's  risk,  but  not  the  rest ;  and  the  reason  Avas,  that  as  to  those 
nothing  remained  to  be  done  on  the  part  of  the  vendor,  but  as  to  the 
ten  casks  something  still  remained  to  be  done.  Here  also  it  remained 
with  the  vendor  to  have  the  Aveight  of  the  ten  tons  ascertained,  and  to 
say  what  specific  mats  Avere  to  be  delivered.  The  })urchaser  had  no 
right  to  point  out  the  specific  mats,  the  sellers  only  had  that  option. 
Therefore,  as  something  still  remained  to  be  done  by  the  ])laintifis, 
Avho  Avere  the  sellers,  and  they  had  an  option  and  election  Avhut  mats 
they  Avould  set  apart,  they  had  a  right  to  consider  the  contract  as  still 
incomplete,  and  to  countermand  the  delivery. 

Dampiek,  J.  Nothing  remained  to  be  done  in  order  to  ascertain 
the  price  or  quantity,  but  it  remained  at  the  option  of  the  sellers  to 
ascertain  Avhat  particular  mats  Avere  to  be  delivered,  and  that  Avas  to 
be  ascertained  bv  them  bv  Aveiohino;  Avhich  stood  in  the  way  of  a  com- 
plete  delivery  in  fact,  and  hindered  the  symbolical  delivery  from  being 


752  SHEPLEY   V.    DAVIS.  [CHAP.  II. 

equivalent  to  an  actual  delivery.  And  unless  there  has  been  some- 
thing equivalent  to  an  actual  delivery,  the  inclination  of  the  courts  has 
been  to  hold  the  sale  not  complete.  Bule  discharged. 

'    ^     rj     0^  SHEPLEY   V.  DAVIS    and   Another. 

hS  %y^  y  [Reported  in  b  Taunton,  %\1.] 

V  o)^    Trover  for  ten  tons  of  hemp.     The  cause  was  tried  before  Mans- 


^^  In  the  COiMMON  Pleas,  June  16,  1814. 


>c  ^ 


field,  C.  J.,  at  Guildhall,  at  the  sittings  after  Trinity  term,  1813,  when 


\ 


a  verdict  was  found  for  the  plaintiff,  with  £1110  damages,  and  40s.  costs, 
subject  to  a  case  which  stated  that  the  defendants  were  wharfingers, 
and  on  the  10th  October,  1812,  had  in  their  possession  at  Davis's  Wharf, 
'  thirty  tons  of  Riga  Rhine  hemp,  piled  up  together,  the  property  of  the 
plaintiff,  and  booked  in  his  name,  which  hemp  had,  on  18th  September, 
1812,  been  received  into  the  possession  of  the  defendants,  as  wharfin- 
gers, from  on  board  the  ship  Clara  Magdalena,  in  the  names  of  Mullet 
&  Evans,  and  on  the  3d  October  following,  had  been  transferred  in  the 
defendants'  books  into  the  name  of  the  plaintifl'.  A  contract,  dated  on 
10th  October,  for  the  purchase  and  sale  often  tons,  part  of  the  before- 
mentioned  hemp,  was  made  by  Grant,  a  broker,  who  signed  it  with  the 
consent  of  the  plaintiff  and  D.  Bromer. 

Sold  for  M.  Shepley,  Esq.,  to  T.  Bromer,  Esq.,  ten  tons  of  Riga  Rhine 
hemp,  ex  Clara  Magdalena,  at  Davis's  Wharf,  at  £110  per  ton,  payable  by  the 
"^X^  acceptance  of  the  buyer,  half  at  three,  and  half  at  four  months,  allowing  the 
\^  usual  discount,  and  fourteen  days  for  delivery. 

^  The  plaintiff  signed  an  order,  dated  on  the  same  day,  — 

"^  To  the  proprietors  of  Davis's  Wharf,  to  weigh  and  deliver  to  Bromer  or  bearer 

ten  tons  of  hemp,  ex  Clara  Magdalena. 

The  quantity  often  tons  was  never  weighed  off  by  the  defendants,  or 
jejiai-ated  from  the  rest  of  the  thirty  tons ;  nor  were  the  defendants  ever 
required  by  Bromer  (or  by  his  assignees  after  his  bankruptcy),  to  weigh 
offer  separate  the  same;  but  on  the  11th  October,. 1812,  the  plaintiff's 
order  was  delivered  to  the  defendants,  and  entered  in  their  books,  and 
the  ten  tons,  as  part  of  the  above-mentioned  thirty  tons,  stood  in  the 
defendants'  books  as  the  property  of  Bromer,  on  and  from  that  day. 
On  17th  October,  1812,  the  plaintiff  gave  notice  to  the  defendants  that 
Bromer  had  stopped  payment,  and  required  them  not  to  weigh  or  de- 


SECT.  IV.]  SHEPLEY   V.    DAVIS.  753 

liver  the  hemp  under  the  before-mentioned  order.  No  bill  of  exchange 
for  the  ]irico  was  acccj^tcd  l)y  Bromer,  or  drawn  upon  liiin  by  the  jjlain- 
tiff.  Tlie  jdaintiff,  before  this  action  brouglit,  demanded  of  tlie  defend- 
ants a  delivery  to  himself  of  these  ten  tons  of  hemp,  offering  to  pay 
them  their  demand  for  warehousing  the  same,  and  their  charges  in 
respect  thereof,  which  the  defendants  refused.  It  is  usual  in  the  trade 
for  the  holders  of  similar  orders,  on  selling  their  interest  to  a  new  pur- 
chaser, to  indorse  such  order,  and  for  the  same  to  be  again  indorsed  to 
future  purchasers,  without  the  intervention,  of  any  actual  weighing  otf, 
until  the  article  is  at  last  taken  away. 

The  case  was  argued  in  Easter  term. 

Jiest,  Serjt.,  for  the  plaintiff,  urged  that  the  delivery  of  the  hemp  to 
the  bankruj)t  was  inconij)lete,  because  the  order  was  given  before  the 
expiration  of  tlie  14  days,  and  was  to  weigh  and  deliver.  At  the  time 
of  sale  the  ten  tons  were  not  a  separate  quantity,  but  parcel  of  a  larger 
mass,  and  were  to  be  weighed  off;  and  that  operation  had  not  been  yet 
performed  :  nor  had  the  purchaser  done  all  that  depended  on  him,  by 
api^lying  to  the  defendants  to  weigh  it,  until  after  which  operation  no 
particular  ])art  of  the  hemp  Avas  approju-iated  to  the  jnirchaser.  The 
practice  stated  in  the  trade  to  sell  a  mere  equitable  right,  is  immaterial ; 
but  if  it  could  in  any  case  avail,  yet  here  the  bankrupt  Avas  not  the 
assignee  of  a  contract,  but  the  original  purchaser,  and  the  practice  was 
therefore  inapplicable.  The  stipulated  bill  had  not  been  required  or 
given,  wliicli,  where  it  forms  a  part  of  the  contract,  is  essential  to  be 
performed  as  a  condition  precedent,  before  the  projx'rty  can  pass,  ac- 
cording to  Hanson  v.  Meyer,  6  East,  G14;  and  equally  so,  though  the 
price  here  was  ascertained  before  weighing.  The  order  for  delivery, 
too,  was  here  countermanded  before  the  fourteen  days  had  expired. 
Whitehouse  v.  Frost,  12  East,  614,  which  will  be  cited  for  the  defend- 
ants, has  been  overruled  in  the  case  of  White  v.  Wilks,  5  Taunt.  176. 
There,  too,  the  bill  had  been  given. 

Lens,  Serjt.,  for  the  defendants.  Hanson  v.  Meyer  is  inapplicable,  for 
the  question  there  arose  on  a  sale  of  the  whole  mass,  and  the  weighing 
there  was  necessary  for  ascertaining  the  amount  of  the  bill  to  be  given  : 
here  the  case  is  on  the  sale  of  a  definite  part  only,  the  price  of  which  is 
known.  This  contract  Avas  complete  on  signing  it ;  the  period  of  four- 
teen days  given  for  delivery  is  not  a  locus  poRuitentlcE ;  the  delivery 
might  be  made  within  that  time.  In  many  of  the  cases  that  have 
arisen  on  a  stoppage  in  transitu,  a  symbolical  delivery  has  been  held 
to  determine  that  right ;  and  here  the  transfer  in  tlie  wharfingers'  books 
made  the  delivery  of  the  ten  tons  comjdete.  So  the  payment  of  ware- 
house rent  by  the  purchaser,  has  been  held  to  be  the  test  of  a  complete 
delivery.  In  Wallace  v.  Breeds,  13  East,  522,  and  other  similar  cases, 
something  remained  to  be  done  by  the  seller,  and  the  property  did  not 
pass  till  those  acts  Avere  complete.     The  case  of  Whitehouse  v.  Frost 


754  SHEPLEY    V.    DAVIS.  "^  [CHAP.  II. 

is  founded  on  sound  law;  and  this  case  is  stronger  than  that,  inasmuch 
as  the  Several  parts  of  the  hemp  are  not  so  miscible  as  of  tlie  oil.  The 
bargain  here  is  complete,  and  this  is  the  attempt  of  one  tenant  in  com- 
mon to  recover  his  share  from  the  other,  which  rehation  puts  an  end  to 
this  action  ;  or  if  there  be  not  a  tenancy  in  common,  the  separation  and 
division  for  the  purposes  of  sale  is  sufficiently  complete  by  the  written 
transfer  of  the  legal  title  and  symbolical  delivery ;  and  the  assignees  of 
the  bankrupt  have  a  vested  right  to  one-third  part  of  the  entire  mass. 
In  the  case  of  White  v.  Wilks,  the  plaintiff  was  the  buyer;  here,  the 
seller.  Jackson  v.  Anderson,  4  Taunt,  24,  was  dissimilar  to  the  present 
case ;  there  the  money  was  originally  sent  by  the  consignor,  destined 
and  appropriated  to  different  persons,  and  the  mere  accident  of  the 
coins  being  mixed  in  one  cask  could  not  alter  the  property  in  them  ; 
but,  if  there  be  a  complete  sale  of  a  certain  portion  of  any  mass  of 
goods,  made  by  the  owner  of  the  whole,  the  vendor  and  vendee  are 
tenants  in  common, 

jBest,  in  reply.  Lord  Ellenborough  distinctly  held,  in  Hanson  v. 
Meyer,  tliat  botli  the  amount  of  the  price  must  be  ascertained,  and  the 
quantity  separated.  There  is  no  case  where  the  courts  have  held  the 
sale  complete,  if  a  bill,  being  stipulated  for,  has  not  been  given.  It  is 
immaterial  whether  the  price  is  to  be  paid  in  money  or  bills,  and  where 
a  contract  is  to  transfer  goods  on  jjayiuent  of  money,  no  one  will  con- 
tend the  transfer  is  complete  witliout  payment  of  the  money.  This  is 
not  distinguishable  from  White  v.  Wilks.  Here  is  no  tenancy  in  com- 
mon. The  property  in  these  ten  tons  resides  entirely  in  the  vendor,  or 
entirely  in  the  vendee,  depending  on  the  question  whether  the  sale  is 
complete  or  not.  If  the  sale  were  complete,  the  admixture  of  the 
goods  would  not  make  a  tenancy  in  common.  So  held  in  Jackson  v. 
Anderson,  But  the  plaintiff  is  at  all  events  entitled  to  the  other  twenty 
tons,  and  may  apply  his  declaration  to  a  part  of  them ;  his  first  argu- 
ment, however,  is  the  sound  foundation  of  his  right. 

Cur.  adv.  vtdt. 

GiBBS,  C.  J,,  now  delivered  the  judgment  of  the  court.  After  re- 
capitulating the  case,  and  observing  that  the  usage  mentioned  at  the 
end  of  it,  for  the  holders  of  such  orders  to  indorse  them  over  to  future 
purchasers,  certainly  could  not  give  a  larger  right  to  the  indorsees  of 
such  orders  than  the  person  had  who  indorsed  them,  he  stated  that 
the  real  question  was,  whether,  under  the  circuijistanccs  of  the  case, 
the  plaintiff  had,  on  the  17th  of  October,  a  right  to  rescind  the  con- 
tract, and  countermand  the  order  to  weigh  off  and  deliver.  If  he  had, 
the  propeity  remained  in  him,  and  the  defendants  Avere  guilty  of  a  con- 
version in  refusing  to  deliver  it  up  on  the  plaintiffs  demand.  If  he  had 
no  right  then  to  rescind  the  contract,  he  had  no  claim  to  have  the  hemp 
redelivered  to  him,  and  consequently  cannot  maintain  this  action.     This 


i 


SECT.  IV.]  GILLETT   V.    HILL.  755 

depends  upon  the  question,  Avliethcr  tlie  delivery  under  this  order  was 
complete,  for,  iftlie  delivery  Avas  conijilete,  tlie  contract  was  executed, 
and  could  not  be  rescinded.  It"  any  thing  remained  to  be  done,  as 
between  the  vendor  and  vendee,  the  delivery  could  not  be  complete ; 
and  the  vendor,  ui)on  the  insolvency  of  the  vendee,  might  rescind  the 
contract.  There  is  no  authority  to  the  defendants  the  wharfingers  to 
deliver,  but  what  this  order  gives.  The  questiou  is,  whether  a  delivery 
had  taken  place  under  it.     See  then  Avliat  this  order  Avas,  and  how 

much  of  it  was  executed.     The  order  is  to  weigh  and  deliver:  it  gives 

no  authority  to  deliver  the  hemp  until  the  defendants  had  weighed  it  ' 
off.  The  defendants  had  not  weighed  it  off  before  the  insolvency  and 
countermand  of  the  order ;  anTT  consequently  no  delivery  could  have 
taken  place  Vithin  the  meaning  of  the  onler;  and  tlie  vendor  might 
still  rescuid  tlie^ohtract]  We  are  confirmed  in  this  reasoning  by  the 
case  of  Busk  v.  Davis,  in  the  Court  of  King's  Bench,  communicated 
to  us  by  ]Mr.  Justice  Dampier.  Independently  of  the  reasoning  I 
have  mentioned,  the  case  I  am  now  citing  is  directly  in  point.  We 
are  of  opinion,  therefore,  that  the  delivery  not  being  complete,  the 
vendor  was  at  liberty  to  rescind  his  contract,  and  that  he  being  at 
liberty  to  rescind  it,  the  refusal  by  the  Avarehouseman  to  deliver  the 
goods  to  him  Avas  a  conversion,  and  that  therefore  the  plaintiff  is  en- 
titled to  recover,  f/'  V  Judgment  for  the  i^laintijlf. 

^  fS^  Wj!^^\       GILLETT  V.  HILL  and  Another.       ^;^  ^,^^^    <^icC^^^ 
s^  (/'  Q^  d/ <'^   ^^  '^^^  Exchequer,  Hilary  Term,  1834.    r/       f/  /jC^, -< 

\  ^  Vy^KV*^  [fi^ortecf  in  2  Crompton  ^  Meeson,  530.]         A  .         ^^  //^/)   / 

^^     Trover  to  recover  the  A'alue  of  fifteen  sacks  of  flour.      //«/,/  /T^^     "//cT^ 
At  the  trial  before  Lord  Lyndhurst,  C.  B.,  at  the  London  sittings 
after  last  Trinity  term,  it  appeared  that  one  Orbcll,  a  miller,  had  given  /'^^     '' 
the  plaintiff  an  order  on  the  defendants,  who  Avere  his  (OrbelFs)  wharf-    J^c'' 
ingers,  for  the  deliA'cry  of  tAventy  sacks  of  flour,  Avhicli  order  was  in  the     ^^  ^/ 
folloAving  terms :  — 

Mrs.  E.  Hill  &  Son, 
Please  to  deliver  to  Mr.  Gillett  twenty  sacks  of  households. 

Richard  Orrell. 

This  order  was  presented  by  the  plaintiff's  carman  at  the  defendants' 
counting-house,  but  the  defendants'  foreman  said  that  they  had  not 
more  than  five  sacks  to  spare,  but  he  might  have  that  quantity.     The 


756  GILLETT   V.    HILL.  [CHAP.  11. 

carman  then  went  away  leaving  the  delivery  order  with  the  defendants' 
foreman,  and  it  was  filed  by  the  clerk  in  the  usnal  way.  On  the  same 
day  the  carman  brought  an  order  from  the  plaintiff"  "  to  deliver  five 
sacks  ex  20,"  which  were  accordingly  delivered.  Application  was 
made  the  next  day  for  the  remainder  of  the  flour  mentioned  in  the 
order,  when  the  defendants'  foreman  said  that  the  plaintiff"  should 
have  it  as  soon  as  they  got  any.  Shortly  after  this,  another  application 
was  made,  to  which  the  answer  was,  that  the  defendants  had  not  any 
flour  of  Orbell's  to  deliver.  The  delivery  order  for  twenty  sacks  signed 
by  Orbell  was,  pursuant  to  notice  for  that  purpose,  produced  at  the 
trial ;  but  the  defendants  not  having  produced  the  order  from  the  plain- 
tiff" to  deliver  "  five  sacks  ex  20,"  the  carman  proved  the  delivery  of  an 
order  from  the  plaintiff"  to  that  effect,  and  that  the  five  sacks  were  accord- 
ingly delivered.  The  case  on  behalf  of  the  defendants  was,  that  they 
had  no  flour  of  Orbell's  to  deliver ;  but  their  clerk  on  being  cross-ex- 
amined would  not  swear  that  there  were  not  fifty  sacks  of  Orbell's  flour 
on  the  defendants'  wharf  at  the  time  that  the  order  was  lodged ;  but 
said  that,  if  there  wei-e,  they  were  appropriated  to  prior  orders.  But 
no  such  orders  were  produced  by  the  defendants.  It  was  objected  for 
the  defendants,  that,  as  no  specific  fifteen  sacks  of  flour  had  been 
selected  or  appropriated  by  the  wharfingers,  so  as  to  vest  the  property 
in  the  vendee,  trover  was  not  maintainable.  The  plaintiff"  contended 
that  the  acceptance  of  the  delivery  order  for  twenty  sacks  was  a  virtual 
appropriation  of  that  quantity  to  the  2)laintiff"'s  use,  and  that  the  sub- 
sequent demand  and  refusal  were  evidence  of  a  conversion.  Lord 
Lyndhurst,  C.  B.,  left  it  as  a  question  to  the  jury,  whether  there  had 
been  an  acceptance  by  the  defendants  of  the  order  for  the  delivery  of 
the  twenty  sacks,  and  the  jury  found  in  the  affirmative,  and  gave  a 
verdict  for  the  plaintiff"  for  the  value  of  the  fifteen  sacks.  Bompas, 
Seijt.,  in  Michaelmas  term  last,  obtained  a  rule  for  a  new  trial,  against 
which 

tT.  Williams  was  to  have  shown  cause,  but  the  court  called  on 
bompas,  Serjt.,  and  Hoggins,  in  support  of  the  rule. 
An  action  of  trover  was  not  maintainable,  inasmuch  as  there  was  no 
appropriation  by  the  defendants  of  any  twenty  specific  sacks  to  the 
order  delivered  by  the  plaintiff".  Where  a  delivery  order  is  made  upon 
a  party  having  a  quantity  of  goods  in  his  hands,  and  he  makes  no  ap- 
propriation of  any  particular  goods  to  such  order,  the  proper  form  of 
action  is  assum2)sit.  If  any  thing  remains  to  be  done  on  the  part  of 
the  vendor  before  the  goods  are  to  be  delivered,  an  absolute  right 
of  property  does  not  vest  in  the  vendee,  and  trover  is  not  maintainable. 
Hanson  v.  Meyer.^  In  this  case  the  remaining  fifteen  sacks  were  to  be 
selected  by  the  defendants  from  the  other  flour  of  Orbell's  in  their  pos- 

1  6  East,  614. 


SECT,  IV.]  GILLETT   V.    HILL.  757 

session,  as  five  sacks  only  were  clelivered.  [Baylkt,  B.  If  I  have  one 
hundred  sacks  of  flour  in  your  liands,  and  I  agree  to  sell  fifty,  and  you 
dispose  of  them  elsewhere,  have  I  not  a  right  to  maintain  trover  for 
them  ?]  If  there  were  any  specific  number  appropriated,  tliere  might 
be  such  a  right.  Rugg  v.  Minett  ^  shows  that  where  nothing  remains 
to  be  done  by  the  vendor,  the  property  in  the  goods  vests  in  the  ven- 
dee; but  not  where  there  is  any  thing  to  be  done  by  the  seller  in  order 
to  put  the  goods  in  a  deliverable  state  in  the  place  from  \\'hence  they 
are  to  be  taken  by  the  buyer.  So  in  Busk  v.  Davis,-  where  the  plaintiff 
sold  ten  out  of  eighteen  tons  of  flax,  then  lying  in  mats  at  the  defend- 
ants' wharf,  at  so  much  per  ton,  and  gave  the  vendee  an  order  on  the 
defendants,  the  wharfingers,  to  deliver  ten  tons  to  the  vendee  or  order, 
which  the  defendants  entered  in  their  books ;  but  the  quantity  to  be 
delivered  was  to  be  ascertained  by  the  wharfingers'  weighing  it,  and  an 
allowance  for  tare  and  draft  was  to  be  made  by  the  weight ;  it  was  held 
that  the  sale  was  not  complete  to  pass  the  property,  those  acts  not  hav- 
ing been  done  by  the  wharfingers,  nor  any  delivery  made ;  and  that 
the  plaintiffs  on  the  insolvency  of  the  vendee  might  countermand  the 
delivery.  [Vaugiian,  B.  What  remained  here  to  be  done  by  the  wharf- 
ingers?] The  fifteen  sacks  were  not  selected  and  appropriated  to  the 
order  to  deliver  to  the  plaintiff.  [Batlet,  B.  If  when  the  delivery 
order  was  brought  you  had  said,  "  I  have  different  sorts  of  flour,  and  I 
must  select  which,"  then  perhaps  you  must  have  selected  before  the 
right  to  it  vested  in  the  plaintiff';  but  by  accepting  the  order  you  agree 
to  deliver  twenty  specific  sacks.]  If  any  thing  remained  to  be  done  to 
shew  the  individuality  of  the  sacks,  it  is  submitted  that  the  right  of 
property  did  not  vest.  In  Busk  v.  Davis,  Lord  Ellenborough  says :  "  If 
some  further  acts  were  to  be  done  in  order  to  regulate  the  identity  and 
(if  I  may  use  the  phrase)  the  individuality  of  the  thing  to  be  delivered, 
I  cannot  say  that  it  was  in  a  state  fit  for  immediate  delivery,  and  that 
the  order  to  deliver  entered  in  the  wharfingers'  books  operated  as  a 
complete  delivery."  And  Le  Blanc,  J.,  says:  "Here  something  was 
to  be  done,  not  to  ascertain  the  price  or  quantity,  but  something  was 
to  be  done  to  ascertain  the  individuality."  It  is  submitted,  that,  unless 
there  Avas  some  appropriation  of  fifteen  specific  sacks  to  the  delivery 
order  for  the  plaiutift''s  use,  he  had  no  right  to  take  them,  and  no  prop- 
erty in  them  vested  in  him,  so  as  to  entitle  him  to  maintain  trover. 

LoKD  Lyndhurst,  C.  B.  I  am  of  opinion  that  there  ought  not  to  be  a 
new  trial  in  this  case.  A  point  of  law  has  been  attemi)ted  to  be  raised, 
but  the  case  was  decided  by  the  verdict  of  the  jmy  on  the  facts.  The 
order  was  in  these  terms  :  "  Mrs.  E.  Hill  &  Son,  please  to  deliver  to 
Mr.  Gillett  twenty  sacks  of  households."  That  order,  on  being  i)re- 
sented,  was  accepted,  and  accepted  generally ;  at  least  there  was  no 

1  11  East,  210.  2  2  Maule  &  S.  397. 

VOL.  I.  49 


758  GILLETT   V.    HILL.  [CHAP.  II. 

evidence  of  any  qualification  of  the  acceptance.  There  was  no  indorse- 
ment of  a  partial  acceptance,  and  it  was  filed  by  the  defendants  in  the 
way  in  which  it  was  proved  that  orders  accepted  generally  were  filed 
by  them  in  the  com-se  of  their  business.  That  view  of  the  case  was 
confirmed  by  the  evidence  of  the  plaintiif 's  carman,  who  stated  that, 
after  leaving  the  first  order  for  twenty  sacks,  he  had  afterwards  brought 
an  order  from  the  plaintiflT  "  for  five  sacks  ex  20,"  and  that  five  sacks 
were  delivered  according  to  that  order.  The  jury  were  of  opinion  that 
the  order  for  twenty  sacks  was  accepted  generally ;  and  if  that  were 
so,  it  was  an  admission  that  there  were  twenty  sacks  of  Orbell's  flour 
in  the  defendants'  possession.  The  case  has  been  argued,  however,  on 
the  ground  of  there  having  been  more  than  twenty  sacks  of  flour 
belonging  to  Orbell  in  the  defendants'  possession ;  but  there  is  no  dis- 
tinct proof  on  the  part  of  the  defendants  that  they  had  more  of  Orbell's 
flour  in  their  possession  than  those  twenty  sacks,  or  that  the  plaintifi" 
knew  that  the  defendants  had  more  in  their  possession.  I  think,  there- 
fore, that  the  vei'dict  was  right,  and  that  trover  is  maintainable.  There 
must,  therefore,  be  no  rule. 

Bayley,  B.  I  am  of  the  same  opinion.  There  is  no  doubt  that  there 
was  orioinally  an  order  signed  by  Orbell,  and  addressed  to  the  defend- 
ants, requesting  them  to  deliver  twenty  sacks  of  flour  to  the  plaintiflp. 
The  order  does  not  say  twenty  sacks  ex  a  greater  quantity,  to  be 
selected  by  the  defendants,  but  twenty  sacks  specifically.  The  defend- 
ants knew  what  quantity  of  flour  belonging  to  Orbell  they  had,  and 
they  might  have  indorsed  on  the  back  of  the  order  that  they  had  so 
many  only ;  and,  from  the  circumstance  of  there  being  no  indorsement 
that  they  accepted  the  order  to  a  limited  extent,  and  to  a  limited  extent 
only,  I  should  have  thought  that  the  jury  would  act  upon  a  safe  prin- 
ciple in  believing  that  the  defendants  had  twenty  sacks  belonging  to 
Orbell  in  their  possession,  and  the  verdict  of  the  jury  therefore  appears 
to  me  consistent  with  the  evidence.  It  appears  to  me,  that,  looking  at 
the  form  of  the  order,  trover  was  the  proper  form  of  action,  and  that 
the  cases  which  have  been  cited  do  not  apply  to  this  case.  Those 
cases  may  be  divided  into  two  classes ;  one  in  which  there  has  been  a 
sale  of  goods,  and  something  remains  to  be  done  by  the  vendor,  and 
until  that  is  done  the  property  does  not  pass  to  the  vendee  so  as  to 
entitle  him  to  maintain  trover.  The  other  class  of  cases  is,  where 
there  is  a  bargain  for  a  certain  quantity  ex  a  greater  quantity,  and  there 
is  a  power  of  selection  in  the  vendor  to  deliver  which  he  thinks  fit ; 
then  the  right  to  them  does  not  pass  to  the  vendee  until  the  vendor  has 
made  his  selection,  and  trover  is  not  maintainable  before  that  is  done. 
K  I  aoree  to  deliver  a  certain  quantity  of  oil,  as  ten  out  of  eighteen 
tons,  no  one  can  say  which  part  of  the  whole  quantity  I  have  agreed  to 
deliver  until  a  selection  is  made.  There  is  no  individuality  until  it  has 
been  divided.    But  those  cases  do  not  apply  here.    This  was  an  order 


SECT.  IV.]  GILLETT   V.    HILL.  759 

to  deliver  twenty  sacks  of  flour,  not  out  of  a  gi-eater  quantity,  but 
twenty  sacks  specifically ;  aiul  when  the  defendants  accept  that  order 
without  restriction,  they  admit  that  they  have  twenty  sacks,  which  they 
will  appropriate  to  that  order,  and  the  defendants  have  no  right  after- 
wards to  say  that  they  have  not  twenty  sacks  unappropriated.  The 
defendants  should  not  have  accepted  the  order  generally,  unless  they 
meant  to  be  bound  by  it ;  but  having  accepted  the  order  generally,  it 
seems  to  me  that  the  property  in  the  flour  passed  to  the  plaintift',  and 
that  the  verdict  is  riiiht. 

Vaughan,  B.  I  think  that  the  verdict  was  warranted  both  in  law 
and  in  fact.  The  action  of  trover  is  founded  upon  a  right  of  property, 
and  to  maintain  the  action  it  is  essentially  necessary  to  show  property 
in  the  plaintifl',  and  iJOssession  and  a  conversion  by  the  defendant.  All 
those  requisites  are  in  my  ojnnion  complied  with  in  this  case.  Attend- 
ing to  the  facts  of  the  case,  the  delivery  order  is  taken  to  the  Avharlinger 
to  see  if  the  party  giving  the  order  has  the  articles  mentioned  in  it  in 
the  wharfinger's  possession.  The  defendants  in  this  instance  attorn  as 
it  were  to  the  delivery  order,  and  admit  the  plaintiflf's  right  to  call  upon 
them  to  deliver  twenty  sacks  of  flour.  Having  received  that  order,  it 
is  binding  on  them.  If  they  Avere  not  in  a  condition  to  comply  with 
the  order,  they  should  have  communicated  that  fact  when  the  order  was 
delivered ;  and  if  they  had  only  five  sacks  they  should  have  limited 
their  acceptance  of  it  to  that  amount,  by  indorsing  it  on  the  order. 
Instead  of  that,  they  receive  the  order  generally,  they  file  it,  and  they 
produce  it  on  the  trial.  But  then  it  is  said  that  the  defendants  have 
not  appropriated  any  particular  fifteen  sacks  to  this  order ;  and  in  sup- 
port of  that  objection  several  cases  have  been  cited.  In  all  those  cases, 
however,  if  they  are  examined,  it  will  appear  that  it  was  held  essential 
that  certain  acts  should  be  done,  as  weighing,  &c.,  before  the  property 
vested ;  and  as  those  acts  had  not  been  done,  the  plaintifl"  failed  to 
prove  an  absolute  property  in  him.  Here,  however,  the  defendants 
admitted  that  they  had  twenty  sacks  in  their  possession  (the  property 
of  Orbell),  and  they  afterwards  refused  to  deliver  fifteen  of  that  num- 
ber. Upon  the  authority  of  the  cases,  I  think  there  is  sufficient  evi- 
dence of  property,  possession,  and  conversion,  to  warrant  the  jury  in 
finding  their  verdict  for  the  plaintiff",  and  to  sustain  this  form  of  action. 

GuRNEY,  B.,  concurred.  Hide  dlscJianjcd. 


\V     J^    -^  WOODLEY  AND  Anothee  v.  COVENTRY  akd  Othees. 
\^    \\i  In  the  Exchequer,  April  IT,  \^^^^^cfc/z'i^jc  £^ 

•^  [i?epo?-^e(^  in  2  Hurlstone  ^  Coltman,  164.]     6''7/y7 ^^iSy^g^f 

Trl^ffHiff/"^  ^^^  barrels  of  flour.  ^-^  ^-^^  ?7>7^>  ^  ^^^  ^  ^^^  ^ 

iPleas :  first,  not  guilty ;  secondly,  that  the  goods  were  not  the  plain- 
tiffs' as  alleged.  '^^^f'T^^^/// /^  J 

At  the  trial  before  Pollock,  C  B.,  at  the  London  sittings,  after  last  j 
Michaelmas  term,  the  following  facts  appeared.  The  plaintiffs  and 
defendants  were  com  factors  in  Mark  Lane,  London.  One  of  the 
defendants,  M.  Coventry,  was  the  owner  and  keeper  of  a  corn  and 
flour  warehouse  at  Shad  Thames.  Li  August,  1862,  one  Clarke,  a  dealer 
in  flour,  and  whose  business  consisted  in  buying  it  from  factors  and  re- 
selling it  to  bakers  and  other  retailers  at  a  small  profit,  applied  to  the 
V  plaintiffs  for  advances  on  a  quantity  of  flour  which  he  had  purchased  of 

the  defendants,  and  he  delivered  to  the  plaintiffs  the  following  order :  — 

Jack's  Coffee  House,  Mark  Lane,  August  25,  1862. 

Mr.  M.  Coventry,  deliver  to  Messrs.  Woodley  &  Meadows, 

130  barrels  flour,  Columbia  Mills . 
218       ,,  ,,      Diamond      ,, 

Joseph  Clarke. 

The  plaintiffs,  before  consenting  to  make  any  advance  on  this  order, 
sent  it  to  the  warehouse  by  a  clerk,  who  made  the  inquiry  there 
whether  "  it  was  all  in  order,"  and  receiving  an  answer,  "  Yes,"  there- 
upon lodged  the  order  at  the  warehouse,  when  it  was  accepted.  The 
clerk  also  took  samples  from  the  bulk,  and  reported  what  had  passed  to 
the  plaintiffs,  who  thereupon  advanced  to  Clarke  £950  on  this  and  some 
other  flour,  for  which  Clarke  had  previously  given  them  a  delivery  order. 
The  plaintiffs  subsequently  sold  small  quantities  of  the  flour,  which 
were  delivered  by  the  warehouseman  to  the  plaintiffs'  purchasers  in 
pursuance  of  ordinary  delivery  orders  for  that  purjjose.  On  the  9th  of 
September,  Clarke  was  declared  bankrupt,  and  absconded  without 
having  paid  for  the  flour,  and  the  defendants  refused  to  deliver  any 
more  of  it  to  the  i^laintiffs. 

It  appeared  by  the  evidence  on  behalf  of  the  defendants,  that  on  the 
\  23d  of  August,  Clarke  purchased  of  them  at  their  stand  in  the  com 
^  \  market  350  barrels  of  flour,  and  received  a  sale  note,  and  the  defend- 
;:;^    *  ants  also  gave  Clarke  the  flowing  delivery  order :  — 


V 


-;  M^ 


SECT.  IV.]  WOODLEY   V.    COVENTRY.  761 

Corn  Exchange,  23  |  8,  1862. 
Mr.  M.  Coventry,  20,  Shad  Thames. 

130  barrels  of  flour,  Columbia  Mills,  ex  Oder. 
220      ,,        ,,       ,,      Diamond      ,,      ex  A(juila. 
All  charges  after  fourteen  days  to  be  jjaid  by  buyer.     No  refusal  will  be  ac- 
cepted, unless  sufficient  reason  be  given  at  our  stand  by  11  o'clock  next  market 
day.  For  Coventry  &  Co., 

J.  M.  Hall. 
N.  B.  — No  corn  to  be  delivered  but  to  printed  notes  from  our  house. 

This  order  Avas  lodged  by  Clarke  the  same  day  at  the  warehouse  of 
the  defendant,  M.  Coventry,  in  Shad  Thames,  and  Clarke's  name  was 
entered  in  tlie  defendants'  book  as  tlie  purchaser  of  that  quantity  of 
flour.  Two  barrels  of  flour  were  afterwards  delivered  by  the  defend- 
ants tipon  Clarke's  order.  When  Clarke  sold  this  flour  to  the  plaintiffs 
there  were  in  the  warehouse  361  barrels  of  flour,  Columbia  Mills,  ex 
"  Oder,"  and  506  barrels  of  flour.  Diamond  Mills,  ex  "  Aquila."  The 
whole  were  in  one  warehouse,  and  there  had  been  no  separation  or 
approi^riation  of  any  particular  barrels  to  Clarke.  The  usual  course  of 
business  was,  upon  the  lodgment  of  a  delivery  order,  to  make  an  entry 
of  the  names  and  quantities  in  a  book  kept  for  that  purpose,  and  to 
give  out  samples  from  the  bulk.  It  was  not  the  practice  to  set  apart  or 
appropriate  any  specific  barrels  to  any  contract  or  delivery  order;  but 
the  usual  course  was,  when  delivery  orders  were  presented  for  actual 
delivery  of  any  quantity,  to  deliver  that  quantity  as  it  came  from  the 
bulk,  and  in  the  order  in  which  deliveries  were  required.  At  the  time 
when  Clarke  absconded  and  the  defendants  refused  to  deliver  the  flour 
to  the  plaintiffs,  there  was  a  much  larger  quantity  of  flour  in  the  ware- 
house, both  of  Columbia  Mills,  ex  "Oder,"  and  Diamond  Mills,  ex' 
"Aquila,"  than  sufficient  to  answer  the  delivery  orders  lodged  by  the 
plaintiffs.  The  defendants  endeavored  to  establish  a  case  of  fraud 
and  collusion  between  the  defendants  and  Clarke,  but  failed. 

It  was  objected  on  behalf  of  the  defendants,  that,  as  there  had  been 
no  appropriation  of  any  specific  barrels  of  floui',  no  property  passed 
fi'om  the  defendants  to  Clarke,  and  therefore  he  could  convey  no  prop- 
erty to  the  jilaintifls.  The  learned  judge  overruled  the  objection,  and 
a  verdict  was  found  for  the  plaintiffs,  with  £310  damages. 

Shee,  Serjt.,  in  the  following  term  obtained  a  rule  nisi  for  a  new  trial 
on  the  ground  of  misdirection  in  the  judge  holding  that  the  property 
had  passed  from  the  defendants  to  Clarke,  and  from  Clarke  to  the 
plaintiffs,  although  no  specific  barrels  of  flour  had  been  set  apart  or 
otherwise  appropriated  to  the  contract  between  the  defendants  and 
Clarke ;  against  which 

Jjush  {Karslake  and  W.  D.  Meadows  with  hini)  now  shewed  cause. 
This  is  not  a  question  Avhether,  as  between  vendor  and  vendee,  the 
property  in  the  flour  passed,  but  a  question  between  the  vendor  and  a 


762  WOODLEY   V.    COVENTRY.  [CHAP.  II. 

purchaser  from  the  vendee,  that  purchaser  having  advanced  money 
upon  it.     The  rule  that  upon  a  contract  of  sale  no  property  passes 
unless  there  lias  been  a  specific  appropriation  of  the  goods,  does  not 
apply.     The   defendants,  as  warehousemen,  having   assented   to  the 
delivery  order,  and  transferred  the  flour  from  Clarke's  name  to  that  of 
the  plaintifis,  are  estopped  from  denying,  as  against  the  plaintiiFs,  that 
Clarke  had  a  right  to  make  such  an  order,  or  that  they  had  the  goods 
represented  by  it,  and  that  the  property  in  the  goods  passed  to  the 
plaintiffs.     In  Stonard  v.  Dunkin^  a  warehouseman,  on  receiving  an 
order  from  the  seller  of  malt  to  hold  it  on  account  of  the  purchaser, 
gave  a  written  acknowledgment  that  he  so  held  it,  and  he  was  not 
allowed  to  set  up  as  a  defence  for  not  delivering  it  to  the  purchaser, 
that  by  the  usage  of  trade  the  property  in  malt  sold  was  not  trans- 
ferred until  it  was  remeasured,  and  that,  before  the  malt  in   question 
was  remeasured,  the    seller  became  bankrupt.     There   Lord   Ellen- 
borough  said :  "  Whatever  the  j-ule  may  be  between  buyer  and  seller,  it 
is  clear  the  defendants  cannot  say  to  the  plaintiff,  '  The  malt  is  not 
yours,'  after  acknowledging  to  hold  it  on  his  account.     By  so  doing 
they  attorned  to  him,  and  I  should  entirely  overset  the  secmity  of 
mercantile  dealings,  were  I  now  to  suffer  them  to  contest  his  title." 
That  case  was  recognized  in  Hawes  v.  Watson,^  where  the  vendor  of 
some  tallow  lying  at  a  wharf  gave  a  written  order  upon  the  wharfingers 
to  weigh,  deliver,  transfer,  and  rehouse  the  same.     The  vendee  resold 
the  tallow,  and  delivered  to  the  purchaser  a  written  acknowledgment 
fi-om  the  wharfingers  that   they   had   transferred   the   tallow   to   his 
account,  and  debited  him  with  the  charges  from  a  certain  period,  and 
it  was  held  that,  although  the  tallow  was  not  weighed,  the  Avharfinger 
could  not,  after  his  acknowledgment,  deny  that  he  held  it  as  the  agent 
of  the  purchaser.     That  doctrine  was  confinned  in  Gosling  v.  Birnie.'' 

The  court  then  called  upon 

WatMn  Williams  to  support  the  rule.  This  action  is  founded  in 
property  in  the  goods  and  not  in  contract.  It  is  conceded  by  the 
plaintiffs  that  this  being  merely  an  executory  contract  for  the  sale 
of  a  certain  quantity  of  flour,  and  no  specific  flour  having  been  appro- 
priated to  it,  no  property  in  fact  passed,  and  that  the  property  still 
remained  in  the  defendants ;  the  question,  therefore,  is  now  narrowed 
to  this,  whether,  under  the  circumstances,  the  defendants  are  estopped 
from  setting  up  the  true  state  of  facts,  showing  that  the  flour  which 
was  the  subject  of  these  transactions  was  not  any  specific  flour, 
none  ever  having  been  separated  or  appropriated  from  a  larger  bulk 
to  this  contract.  As  between  the  defendants  and  Clarke,  unquestion- 
ably the  rights  of  the  jjarties  were  still  merely  in  contract,  as  no 
right  of  property  in  any  particular  flour  had  vested  in  him ;  and  the 

1  2  Camp.  344.  2  2  B.  &  C.  540.  ^  7  Bing.  339. 


SECT.  IV.]        .  WOODLEY   V.    COVENTRY.  763 

sole  question  is,  "whether  the  defendants  have  so  conducted  them- 
selves in  their  dealings  with  the  plaintiffs,  or  have  said  or  done  any 
thing  to  estoj)  them  from  relying  upon  the  real  facts,  so  far  as  they  afford 
a  defence  to  this  action.  No  doul)t  the  defendants  are  esto])]ied  from 
setting  up  any  facts  inconsistent  with  what  they  led  the  plaintiffs  to 
believe  the  facts  really  were.  That  is  the  true  nature  of  estoppel ; 
but  beyond  that  the  defendants  are  not  estopped.  The  class  of  cases 
referred  to,  of  whicli  there  are  a  large  number,  do  not  apply  to  the 
present  case  at  all.  The  conditions  precedent  to  the  passing  of  the 
property  in  goods  from  a  vendor  to  a  purchaser  are  divisible  into  two 
distinct  classes.  First,  there  is  the  necessary  condition,  that  the  goods 
in  which  the  property  is  to  pass  shall  be  specific  and  individual. 
Secondly,  there  is  the  class  of  cases  where  the  goods  are  specific,  but 
by  the  terms  of  the  dealing  something  has  to  be  done,  or  is  to  happen, 
before  the  pi'operty  vests  in  the  purchaser.  Now,  in  the  latter  class  of 
cases,  a  warehouseman,  who  accepts  and  acknowledges  a  delivery  order 
coming  from  the  original  vendor,  is  estopped  from  disputing  the  non- 
performance of  any  of  the  conditions  upon  which  a  delivery  of  the 
specific  goods  is  to  take  place,  as  it  would  be  inconsistent  with  his 
acceptance,  of  an  order  for  delivery;  so  also,  no  doubt,  he  would  be 
estopped,  as  indeed  in  all  cases,  from  disputing  that  he  had  any  goods 
applicable  to  the  delivery  order.  All  the  cases  referred  to  belong  to 
this  class;  but  the  present  case  belongs  to  the  former  class,  and  there 
is  no  authority  to  be  found  which  decides  that  the  mere  acknowledg- 
ment of  a  delivery  order  does  away  with  the  necessity  for  the  perform- 
ance of  that  condition  precedent  to  the  passing  of  the  property  which 
consists  in  the  goods  being  specific  and  identified,  which  depends  not 
on  the  mere  agreement  of  the  ])arties,  but  upon  the  reason  and  neces- 
sity of  the  thing.  The  defendants  have  not  said  or  done  any  thing 
inconsistent  with  the  facts  they  set  up  and  rely  upon.  Tliey  never 
represented  that  the  goods  were  specifically  appropriated,  or  that  any 
particular  goods  belonged  to  Clarke.  They  were  asked  whether  the 
delivex-y  order  was  in  order,  and  they  said,  "  Yes,"  and  they  do  not  now 
seek  to  dispute  that  fact.  If  there  had  not  been  sufficient  goods  to 
satisfy  the  order,  they  would,  no  doubt,  have  been  estopped  from  setting 
that  up,  as  it  would  not  be  consistent  with  what  they  had  previously 
stated;  but  it  is  not  inconsistent  with  the  delivery  order  being  right, 
that  the  goods  should  be  part  of  an  entire  bulk,  and  not  specifically 
appropriated  to  the  contract  or  the  order.  The  legal  consequence  of 
this  latter  circumstance  is  another  matter;  and  it  no  doubt  hapjiens 
that  it  has  the  effect  of  showing  that  the  i)laintiffs  have  no  rights  or 
remedies  founded  upon  property  in  the  goods,  and  have  only  the  con- 
tract to  resort  to ;  and  the  question,  therefore,  in  one  form  comes  to 
this,  whether  the  plaintiffs  have  any  rights  founded  in  ]n-operty,  or 
whether  their  rights  are  merely  in  contract.     [Bkasiwell,  B.     What 


764  WOODLEY   V.    COVENTRY.  .        [CHAP.  II. 

remedy  do  you  say  the  plaintiffs  could  have  adopted?]     The  plaintiffs 
had  a  right  to  avail  themselves  of  the  contract  between  the  defendants 
and  Clarke,  the  benefit  of  which  had  been  transferred  to  them,  and 
they  might  have  sued  in  Clarke's  name,  and  to  such  an  action  the  de- 
fendants had  a  good  defence.     As  to  the  merits  of  the  case,  the  sole 
question  is.  Who  is  to  suffer  for  Clarke's  fraud?     If  the  plaintiffs  can 
enforce  a  right  of  property  in  the  goods  the  defendants  must  suffer, 
but  if  the  transaction  still  remains  in  contract  the  plaintiffs  will  lose 
their  money.     Hardship  ought  really  to  be  out  of  the  question,  and 
the  matter  is  one  of  pure  law.     Now  the  estoppel  can  only  be  as  to 
facts,  and  what  have  the  defendants  done  or  said  to  estop  them  from 
showing  that  the  goods  to  which  this  delivery  order  related,  form  an 
•undivided  part  of  a  larger  bulk?     They  do  not  want  to  dispute  that 
there  were  goods  applicable  to  this  contract  ■  and  delivery  order ;  they 
only  say  that  the  goods  are  not  specific,  but  an  undivided  part  of  a 
larger  bulk.     Suppose  in  the  present  instance  the  fact  of  no  property 
in  the  goods  having  passed  to  the  plaintiffs  had  been  attended  with  no 
substantial  consequences  to  them,  and  that  whilst  they  were  deprived 
merely  of  this  form  of  remedy  by  action  of  trover,  the  remedy  on  the 
contract  had  been  equally  available  and  had  not  been  impaired  by  the 
conduct  of  their  vendor,  Clarke ;  could  it  have  been  contended  for  a 
moment  that  the  defendants  were  estopped  from  showing  the  facts  now 
sought  to  be  set  up?.    The  particular  bearing  or  effect  of  a  fact  upon 
the  legal  rights  of  parties  is  not  the  true  test  whether  a  party  by  his 
conduct  is  estopped  from  setting  up  the  truth  as  to  that  fact.     Further, 
•  if  there  is  an  estoppel,  it  must  be  mutual ;  and  suppose  there  had  been 
a  fire  at  the  warehouse,  and  half  the  flour  had  been  burned,  could  the 
defendants  have  cast  the  loss,  or  any  part  of  it,  on  the  plaintiffs? 
[Pollock,  C.  B.     It  was  the  defendants'  duty  to  have  appropriated 
348  barrels  of  flour  to  the  order  when  they  accepted  it,  and  it  is  their 
own  fault  if  they  are  in  such  a  difiiculty.]     The  defendants  were  guilty 
of  no  default  or  neglect ;  and  every  thing  was  done  in  the  usual  and 
ordinary  course,  and  that  makes  the  point  as  to  the  estoppel  the  more 
clear.     The  usual  course  was  not  to  appropriate  from  the  bulk  until 
actual  delivery,  so  that  when  the  delivery  order  was  lodged,  and  the 
plaintiffs  were  told  that  it  was  right,  there  was  nothing  at  all,  according 
to  the  usual  course  of  business,  to  justify  the  plaintiffs  in  coming  to  the 
conclusion  that  it  meant  that  any  particular  flour  had  been  transferred 
to  Clarke,  or  to  themselves.     Here  the  defendants  seek  to  set  up  facts 
in  no  way  inconsistent  with  any  thing  they  have  said  or  done,  or  induced 
the  plaiutifls  to  believe  in.     It  is  no  ground  for  the  estoppel  that  the 
facts  relied  on  by  the  defendants  would  have  the  legal  effect  of  pre- 
venting the  plaintiffs  from  resorting  to  one  description  of  rights  and 
remedies. 

Martin,  B.     I  am  of  opinion  that  the  rule  ought  to  be  discharged. 


SECT.  IV.]  WOODLEY   V.    COVENTRY.  765 

Tlie  question  dcpcnfls  on  the  real  nature  of  tlie  transaction  as  between 
the  phiintitls  and  tlie  defendants.  I  think,  upon  the  authority  of  Hawes  v. 
Watson,^  that  the  question  is  not  whether  Clarke  was  the  owner  of  the 
flour,  but  whether,  as  between  the  plaintiffs  and  the  defendants,  the 
latter  must  not  be  taken  to  have  assented  that  there  were  348  barrels 
of  flour  at  their  warehouse  deliverable  to  the  plaintifl's'  order;  and  if 
so,  the  i)roperty  attached  in  the  sense  that  the  defendants  are  pre- 
cluded in  a  court  of  law  from  denying  that  they  held  that  number  of 
barrels  on  the  plaintiffs'  account.  In  strictness,  the  question  whether 
the  defendants  assented  is  one  of  fact  for  the  jury,  but  I  am  satisfied 
the  jury  would  have  found  that  such  was  the  real  nature  of  the  trans- 
action. 

Bramwell,  B.  I  am  also  of  opinion  that  the  rule  ought  to  be  dis- 
charged. I  think  the  case  is  precluded  by  authority,  and  I  also  think 
that  convenience  and  good  sense  lean  in  the  same  direction.  I  doubt 
whether  any  question  could  have  been  properly  left  to  the  jury.  It 
seems  to  me  that  my  lord  would  have  had  to  say  to  them,  "  If  you 
find  that  Clarke,  having  some  flour  to  dispose  of,  assumed  to  deal  with 
348  barrels,  and  the  defendants  recognized  his  act,  and  admitted  that 
they  held  that  quantity  of  flour  for  him,  the  plaintiffs  are  entitled  to 
recover."  That,  however,  would  not  have  been  leaving  to  them  any 
question,  but  only  what  Avas  the  fact.  Mr.  Williams  says  that  the 
effect  of  the  transaction  is  not  that  which  I  have  suggested,  but  merely 
to  give  Clarke  a  right  to  demand  the  delivery  of  a  certain  number  of 
barrels  of  flour,  and  which  right  he  transferred  to  the  plaintiffs.  But 
that  is  not  so.  When  the  delivery  order  was  presented  to  the  defend-- 
ants,  they  might  have  said,  "  We  will  not  accept  this  order,  for  there 
are  not  348  barrels  of  flour  in  our  warehouse  of  which  Clarke  has  a 
right  to  dispose.  There  is  a  much  larger  quantity  in  the  warehouse, 
out  of  which  Clarke  has  a  right  to  348  when  selected  and  appropriated 
to  him,  but,  until  that  is  done,  he  has  no  right  to  any,  for  they  are  not 
his."  But,  instead  of  saying  that,  the  defendants  in  effect  say,  "  We 
recognize  a  right  in  Clarke  to  dispose  of  348  barrels,"  which  could  only 
be  upon  the  supposition  that  the  property  in  348  l)arrels  had  passed  to 
him.  That  being  the  eflTect  of  the  transaction,  there  was  no  question 
to  leave  to  the  jury.  Mr.  Williams  has  also  suggested  that  we  ought 
not  only  to  look  at  the  result  of  the  evidence,  but  also  consider  what 
would  have  been  the  position  of  the  parties  if  the  flour  had  been 
burnt.  Perhaps,  in  that  case,  the  defendants  would  have  had  to  bear 
the  loss,  because  there  Avas  no  appropriation  of  the  flour ;  but  it  is 
unnecessary  to  consider  whether  or  no  they  would  have  been  entitled 
to  be  paid  for  it.  It  frequently  happens  that  a  person  by  making  an 
acknowledgment  precludes  himself  from  setting  up  something  favor- 

1  2  B.  &  C.  540. 


766 


KNIGHTS   V.   WIFFEN. 


[chap.  II. 


able  to  him ;  and  the  only  observation  that  arises  is,  that  people  should 
be  more  cautious.  Then  Mr.  Williams  says  that  the  defendants  are 
not  to  blame.  I  do  not  say  they  are,  because  persons  are  not  to  blame 
for  not  making  provision  against  what  may  be  called  an  abnormal  con- 
dition of  things,  that  is  to  say,  insolvency  or  fraud.  Therefore  no  one 
can  blame  the  defendants  because  they  did  not  reject  the  order, 
"While,  however,  in  one  sense  they  were  not  in  fault,  in  another  sense 
they  were,  for  by  recognizing  the  order  they  placed  themselves  in  the 
difficulty  which  has  been  suggested  of  having  no  remedy  against  the 
plaintiffs  if  the  goods  were  burnt,  and  nevertheless  being  liable  in  this 
action.  Seeing,  therefore,  that  the  case  is  concluded  by  authority,  and 
that  no  question  could  have  been  left  to  the  jury  unless  it  were  one 
which  they  must  inevitably  have  found  in  favor  of  the  plaintiffs,  viz., 
whether  the  effect  of  the  transaction  was  that  the  defendant  recognized 
the  right  of  Clarke  to  dispose  of  348  barrels  of  flour,  I  think  the  rule 
ought  to  be  discharged. 

Pollock,  C.  B.  I  entirely  agree  with  the  rest  of  the  court  that  the 
rule  ought  to  be  discharged.  At  the  trial  it  was  never  suggested  that 
any  question  ought  to  be  left  to  the  jury.  In  the  course  of  the  reply 
of  the  plaintiffs'  counsel,  the  jury  took  the  matter  into  their  own  hands, 
and  said  that  they  were  perfectly  satisfied,  upon  the  facts  proved,  that 
the  plaintiffs  were  entitled  to  recover.  The  real  question  was  whether 
the  defendants  had  so  conducted  themselves  that  the  plaintiffs  had  a 
right  to  say,  "  We  call  upon  you  to  dehver  to  us  the  flour  which  you 
say  you  held  on  our  behalf."  The  question  whether  the  property 
passed,  as  between  vendor  and  vendee,  never  arose :  the  only  question 
was  whether  the  defendants  had  acknowledged  that  they  held  the  flour 
on  behalf  of  the  plaintiffs,  for,  if  so,  according  to  law  and  justice,  they 
were  bound  to  deliver  it  or  pay  the  damages. 
^  ^,  ^^  Mule  discharged. 


y       KNIGHTS   V.  WIFFEN. 

In  the  Queen's  Bench,  June  18, 1870. 

{Reported  in  Law  RepoHs,  5  Queen's  Bench,  660.] 

>ECLAEATioK   for  convcrsiou  of  sixty  quarters   of  barley  of  the 

'    C  '  plaintiff. 

Pleas :  1.  Not  guilty.     2.  That  the  barley  was  not  the  property  of 

the  plaintiff. 
Issue  thereon. 
*i    {         At  the  trial  before  Keating,  J.,  at  the  Surrey  Spring  Assizes,  it  ap- 

X    '^     ^ 


SECT.  IV.]  KNIGHTS   V.   WIFFEN.  767 

peared  that  the  defeiiflant,  a  corn-merchant,  liad  a  large  quantity  of 
barley,  in  sacks,  lying  in  his  granary,  Avhich  adjoined  the  Stanstead 
Station  of  the  Great  Eastern  Railway.  He  sohl  eighty  (juarters  of 
this  barley  to  one  Maris,  but  no  particular  sacks  were  appropriated  to 
the  purchaser.  While  the  barley  remained  in  the  defendant's  granary, 
subject  to  the  orders  of  ]Maris,  the  latter  sold  sixty  quarters  of  it  to 
the  i)laintiff,  who  paid  him  for  them,  and  received  from  him  the  follow- 
ing delivery  order  addressed,  as  was  usual  in  similar  transactions,  to  the 

Station-master,  Stanstead :  — 

Sir,  — Deliver  Mr.  T.  Knights  sixty  quarters  of  barley  to  my  order. 

R.  W.  Maris,  Jr. 
JCNE  27,  1868. 

Underneath  was  written,  — 

Thomas  Knights,  Jr., 

Ilemingford  Gray,  near  St.  Ives, 

Huntingdonshire. 

The  plaintiff  sent  this  document  to  the .  station-master,  and  wrote  with 
it:  — 

Sir,  —  I  enclose  Mr.  R.  W.  IMaris  Jr.'s  transfer  of  sixty  quarters  of  barley 
to  my  account.  Please  confirm  this  transfer,  and  send  me  a  sample,  and  say  what 
•weight  is  in  due  course. 

On  receipt  of  this  letter  and  the  delivery  order,  the  station-master 
showed  them  both  to  the  defendant,  Avho  said,  "  All  right  ]  when  you 
get  the  forwarding  note  I  will  put  the  barley  on  the  line."  Samples 
were  afterwards  grven"'ro'*thc  slntion-iiiastcr,  wKTch  were  sent  by  him 
to  the  plaintiff.  Three  sacks  were  weighed.  The  plaintiff  ultimately 
gave  an  order,  or  forwarding  note,  to  the  station-master,  for  the  sixty 
quarters  of  barley  to  be  sent  to  Cambridge,  which  he  presented  to  the 
defendant,  but  Maris  had  then  become  bankrupt,  and  the  defendant,  as 
unpaid  vendor,  refused  to  part  with  the  barley. 

The  learned  judge  directed  a  verdict  for  the  defendant,  giving  the 
plaintiff  leave  to  move  to  enter  a  verdict  for  £53  I85.  7d.,  the  amount 
claimed. 

A  rule  was  obtained  pursuant  to  the  leave  reserved,  on  the  gi'ound 
that  there  was  evidence  which  ought  to  have  been  submitted  to  the 
jury  to  prove  that  the  defendant  had  accepted  and  agreed  to  act  upon 
the  delivery  order  of  the  vendee  (Maris),  and  thus  passed  the  projierty 
in  the  sixty  sacks  of  barley;  or  for  a  new  trial  on  the  ground  that  the 
judge  ought  to  have  directed  a  verdict  i'ov  the  plaintiff  for  three  sacks 
at  least. 

Wood  Bill  {Bay  with  him)  showed  cause.  There  was  no  apjiro- 
priation  of  the  barley  so  as  to  pass  the  property,  nor  was  there  any 
thing  done  by  the  defendant  to  estop  him  from  denying  that  the  prop- 


768  KNIGHTS    V.    WIFFEN.  [CHAP.  II. 

erty  had  passed.  [Lush,  J.  The  rule  in  Pickard  v.  Sears  ^  applies.] 
This  case  does  not  come  within  the  rule ;  there  was  nothing  here  to 
estop  the  defendant.  Woodley  v.  Coventry^  will  be  relied  on  by 
the  other  side ;  the  argument  for  the  plaintiffs  in  that  case  was  that  the 
statement  of  the  warehouseman  that  "all  was  right"  estopped  the 
defendants,  "  for  the  plaintiffs  paid  their  money  on  the  faith  of  that 
statement."  And  all  the  cases  cited  in  support  of  that  argument  are 
cases  where  money  had  been  jjaid  on  the  faith  of  the  statement  set  up 
as  an  estoppel ;  and  in  Biddle  v.  Bond,^  Blackburn,  J.,  delivering  the 
judgment  of  the  court,  thus  refers  to  those  cases :  "  Several  cases 
were  cited  on  the  argument  at  the  bar,  and  more  might  have  been 
cited,  such  as  Stonard  v.  Dunkin,*  Gosling  v.  Birnie,^  and  Hawes  v. 
Watson,^  in  which  a  bailee,  who,  by  attorning  to  a  purchaser  of  the 
goods,  has,  in  effect,  represented  to  him  that  the  property  has  passed 
to  him  (though  such  was  not  the  fact),  and  has  thereby  induced  him 
to  alter  his  position,  and  pay  the  price  to  his  vendor,  has  been  held 
estopped  from  denying  the  pi'operty  of  the  person  to  whom  he  has 
thus  attorned,  by  setting  up  a  title  in  a  third  person  inconsistent  with 
the  representation  on  which  h5  had  induced  the  plaintiff  to  act.  We 
in  no  way  question  that  those  cases  were  rightly  decided."  Here  the 
purchase-money  had  been  paid  by  the  plaintiff  before  the  statement 
was  made.  The  distinction  between  Gillett  v.  Hill ''  and  the  present 
case  is,  that  that  was  the  case  of  a  wharfinger  with  goods  in  his  pos- 
session which  were  not  his  own  property,  receiving  without  remark  a 
delivery  order  respecting  those  goods  from  the  purchaser ;  and  the  jury 
found  that  there  had  been  an  acceptance  of  the  delivery  order  for  the 
full  quantity  of  goods  mentioned  therein  ;  and  Lord  Lyndhurst,  C.  B., 
says :  ^  "  The  case  has  been  argued  on  the  ground  of  there  having  been 
more  than  twenty  sacks  of  flour  belonging  to  Orbell,"  the  vendor,  "in 
the  defendant's  possession ;  but  there  is  no  distinct  proof  on  the  part 
of  the  defendants  that  they  had  more  of  Orbell's  flour  in  their  posses- 
sion than  those  twenty  sacks,  or  that  the  plaintiff  knew  that  the 
defendants  had  more  in  their  possession.  I  think,  therefore,  that  the 
Verdict  was  right,  and  that  trover  is  maintainable."  The  fact  wanting 
in  that  case  is  supplied  in  the  present  case.  The  forwarding  order  was 
not  sent  for  some  days.  It  cannot  be  said  that  possession  had  passed 
here.     [Blackbuen,  J.,  referred  to  Farina  v.  Home.^] 

Ingham  (with  him  Parry,  Serjt.,  and  Kemp)  in  support  of  the  rule. 

■  The  defendant  is  estopped  from  saying  the  property  did  not  pass.    "  The 

general  rule  of  law  is,  that  whatever  a  man's  real  intention  may  be,  if  he 

manifests  an  intention  to  another  party,  so  as  to  induce  the  latter  to  act 

1  6  Ad.  &  E.  469.  2  2  H.  &  C.  164;  32  L.  J.  (Ex.)  185. 

3  6  B.  &  S.  225,  231 ;  34  L.  J.  (Q.  B.)  137,  139.  <  2  Camp.  344. 

5  7  Bing.  339.  6  2  B.  &  C.  540.  '  2  C.  &  M.  530. 

8  2  C.  &  M.  534.    .  9  16  M.  &  W.  119. 


SECT. 'IV.]  KNIGHTS   V.    WIFFEN.  769 

iij^on  it,  he  will  be  estopi^ed  from  denying  that  tiie  intention  as  mani- 
fested was  his  real  intention."  Benjamin  on  Sale,  p.  39.  Here  the  sta- 
tion-master, being  constituted  the  plaintiif's  agent,  went  to  the  defendant 
and  said,  in  effect,  "  Do  you  hold  sixty  sacks  of  barley,  the  property  of 
the  plaintiff? "  His  reply  amounted  to  this :  "  I  do  hold  them,  and 
will  deal  with  them  as  you  wish."  Woodley  v.  Coventry  ^  is  in  j)oint. 
There  defendants,  corn-factors,  sold  850  barrels  of  flour  to  C,  and  gave 
him  a  delivery  order  on  the  defendants.  C.  gave  the  order  to  the 
plaintiffs,  who  sent  it  to  the  defendants'  warehouse,  where  the  flour 
remained.  The  warehouseman  said,  "  It  is  all  right,"  and  gave  samjjles 
of  the  flour,  and  the  plaintiffs  thereui)on  advanced  money  to  C.  In 
point  of  fact,  no  api)ropriation  had  been  made  of  850  barrels  from  a 
larger  number  in  the  defendants'  warehouse.  C.  became  bankrupt,  and 
the  price  remained  unpaid  to  the  defendants.  The  plaintiffs  having 
brought  trover  for  the  flour,  it  was  held  that  the  defendants  were 
estopped  by  their  conduct  from  saying  that  the  property  in  the  flour 
did  not  pass  to  the  plaintiffs.  So  here  the  plaintiff,  although  he  had 
already  paid  for  the  barley,  altered  his  jjosition  in  consequence  of  the 
defendant's  statement,  for  he  allowed  the  goods  to  remain ;  and  the 
defendant  did  not  say,  "  When  you  get  the  delivery  order  I  will  hold 
for  you,"  but,  "  When  you  get  a  forwarding  note,  I,  acting  as  your 
agent,  will  do  whatever  you  require  about  the  goods." 

Blackburx,  J.  I  think  that  the  plaintiff"  is  entitled  to  the  verdict, 
and  the  rule  should  be  made  absolute  to  enter  a  verdict  for  him.  I 
will  state  shortly  what  I  consider  to  be  the  facts  upon  which  the  case 
seems  to  turn.  The  defendant  Wiften  had  in  his  own  warehouse  a 
large  quantity  of  barley,  and  he  sold  to  Maris  eighty  quarters,  which,  on 
the  contract  between  him  and  Maris,  remained  in  his  possession  as 
unpaid  vendor.  No  particular  sacks  of  the  barley  were  appropriated 
as  between  Maris  and  Wiffen ;  but  at  the  time  the  contract  was  made 
Maris  had  a  right  to  have  eighty  quarters  out  of  that  barley  appropri- 
ated to  him ;  and  at  the  same  time  Wiffen,  as  the  unpaid  vendor,  had 
a  right  to  insist  on  payment  of  the  price  before  any  part  of  the  grain 
was  given  up.  Maris  afterwards  entered  into  a  contract  with  the  plain- 
tiff". Knights,  by  which  he  sold  him  sixty  sacks  of  the  barley,  and  /" 
Knights  paid  him  for  them.  A  document  was  given  by  Maris  to  y 
Knights  in  the  shape  of  a  delivery  order  addressed  to  a  station-master 
of  the  Great  Eastern  Railway,  instructing  him  to  deliver  to  Knights' 
order  sixty  quarters  of  barley  on  his  Maris'  account.  Knights  for- 
warded it  to  the  station-master,  enclosed  in  a  letter  autliorizing  the 
station-master  to  hold  for  him.  The  station-master  went  to  Witt"en, 
and  showed  him  the  delivery  order  and  letter,  and  Wift"en  said,  "  All 
right ;  when  you  receive  the  forwarding  note,  I  will  place  the  barley  on 

2  11.  &C.  164;  32  L.J.  (Ex)  185. 


770  KNIGHTS   V.   WIFFEN.  [CHAP.  II. 

the  line."  What  does  that  mean?  It  amounts  to  this,  that  Maris 
having  given  the  order  to  enable  Knights  to  obtain  the  barley,  Wiffen 
recognized  Knights  as  the  person  entitled  to  the  possession  of  it. 
Knights  had  handed  the  delivery  order  to  the  station-master,  and 
Wiffen,  when  the  document  was  shown  to  him,  said,  in  effect,  "  It  is 
quite  right ;  I  have  sixty  quarters  of  barley  to  Maris's  order ;  I  will  hold 
it  for  you ;  and  when  the  forwarding-note  comes  I  will  put  it  on  the 
railway  for  you."  Upon  that  statement  Knights  rested  assured,  and 
I  Wiffen,  by  accepting  the  transfer  which  had  been  informally  addressed 
/  to  the  station-master,  bound  himself  to  Knights.  The  latter  accord- 
ingly, when  he  did  not  get  the  goods,  brought  an  action  of  trover 
against  Wiffen,  saying,  as  it  were,  "  You  said  that  you  had  the  sixty 
quarters  of  barley,  and  that  you  would  hold  the  goods  for  me.  You 
cannot  refuse  to  deliver  to  me ;  if  you  do  refuse  it  will  be  a  conver- 
sion." And  Wiffen  now  says,  "  It  is  all  true,  but  I  do  refuse  to  deliver 
the  barley.  Granted  that  I  previously  said  I  would  hold  sixty  quarters 
of  barley  for  you,  yet  I  had  none  to  hold  for  you.  I  had  no  quarters 
belonging  to  Maris,  for  I  never  severed  them  from  the  bulk,  and  I  am 
entitled  to  hold  the  whole  quantity  as  against  Maris,  until  I  am  paid 
the  full  price."  No  doubt  the  law  is  that  until  an  appropriation  from 
a  bulk  is  made,  so  that  the  vendor  has  said  what  portion  belongs  to 
him,  and  what  portion  belongs  to  the  buyer,  the  goods  remain  in 
solido,  and  no  property  passes.  But  can  Wiffen  here  be  permitted  to 
say,  "  I  never  set  aside  any  quarters  "  ?  As  to  that,  Woodley  v.  Coven- 
try ^  is  very  much  in  point ;  with  this  difference  only,  that  there  the 
plaintiff  acted  on  the  statement  of  the  warehouseman,  and  altered  his 
position  by  paying  the  vendee  a  part  of  the  price,  and  so  the  doctrine 
of  estoppel  applied ;  which  doctrine  is  that  where  one  states  a  thing  to 
another,  with  a  view  to  the  other  altering  his  position,  or  knowing  that, 
as  a  reasonable  man,  he  will  alter  his  position,  then  the  person  to  whom 
the  statement  is  made  is  entitled  to  hold  the  other  bound,  and  the 
matter  is  regulated  by  the  state  of  facts  imported  by  the  statement. 
Woodley  had  altered  his  position  by  paying  part  of  the  price,  but 
Coventry  did  not  know  of  it.  In  Stonard  v.  Dunkin  *  it  is  patent  that 
the  defendant  knew  the  money  was  paid.  In  Hawes  v.  Watson  ^  it 
appears  that  payment  had  been  made,  but  the  defendant  did  not  know 
of  it,  although,  as  a  reasonable  man,  he  might  have  known  it  was  likely. 
But  in  neither  of  those  cases  did  the  defendants  know  that  money  was 
going  to  be  paid.  In  the  present  case  the  money  had  been  paid  before 
the  presentation  of  the  delivery  order ;  but  I  think,  nevertheless,  that 
the  position  of  the  plaintiff  was  altered  through  the  defendant's  con- 
duct. The  defendant  knew  that,  when  he  assented  to  the  delivery 
order,  the  plaintiff,  as  a  reasonable  man,  would  rest  satisfied.     If  the 

1  2H.  &C.  164;  32L.  J.  (Ex.)  185.        2  2  Campb.  344.        3  2  B.  &  C.  540. 


SECT.  IV.] 


KNIGHTS   V.    WIFFEN. 


771 


plaintiff  had  been  met  by  a  refusal  on  the  part  of  the  defendant,  he 
could  have  gone  to  Maris,  and  have  demanded  back  his  money,  very 
likely  he  might  not  have  derived  much  benefit  if  he  had  done  so;  but 
he  had  a  right  to  do  it.  The  plaintiff  did  rest  satisfied  in  the  belief,  as 
a  reasonable  man,- that  the  })roperty  had  been  passed  to  him.  If  once 
the  fact  is  established  that  the  plaintiff's  position  is  altered  by  relying 
on  the  statement  and  taking  no  steps  further,  tlie  case  becomes  identi- 
cal with  Woodley  v.  Coventry,^  and  Hawes  v.  Watson.-  It  is  to  be 
observed,  moreover,  that  the  judgment  of  the  court  in  Woodley  v. 
Coventry  ^  did  not  rest  on  the  fact  of  the  payment  of  the  price.  It  will 
be  noticed  there  that,  although  the  fact  did  exist  of  payment  of  price, 
Martin,  B.,  seems  to  found  his  decision  on  the  assenting  to  hold,  and  the 
fact  that  when  that  assent  was  communicated  to  the  plaintiffs,  they 
altered  their  j^osition.  In  Gillett  v.  Hill '  there  Avas  no  pa}Tiient  of  the 
price,  and  the  Court  of  Exchequer  gave  judgment  against  the  wharfin- 
gers, on  the  ground  that  they  were  esto])ped  from  denying  the  facts, 
after  the  other  party  had  altered  his  position,  relying  on  their  conduct 
when  the  delivery  order  was  presented.  In  the  present  case  the  plain- 
tiff altered  his  position,  relying  on  the  defendant's  conduct  when  the 
delivery  order  was  presented.  The  plaintiff  may  Avell  say,  "I  abstained 
from  active  measures  in  consequence  of  your  statement,  and  I  am  enti- 
tled to  hold  you  precluded  from  denying  that  what  you  stated  was  true." 
Mellor,  J.  I  am  entirely  of  the  same  opinion.  Lord  Elleuborough 
says  in  Stonard  v.  Dunkin,*  "  Whatever  the  rule  may  be  between  buyer 
and  seller,  it  is  clear  the  defendants  cannot  say  to  the  plaintiff,  '  The 
malt  is  not  yours,'  after  acknowledging  to  hold  it  to  his  account.  By  so 
doing,  they  attorned  to  him ;  and  I  should  entirely  overset  the  security 
of  mercantile  dealings  were  I  now  to  suffer  them  to  contest  the  title." 
I  think  the  question  is  concluded  by  this  and  all  the  authorities,  and 
the  doctrine  of  estoppel,  wdien  generally  applied  to  cases  of  this  kind, 
is  certainly  very  useful.  The  foundation  of  that  doctrine  is  clearly 
stated  in  my  brother  Blackburn's  book  on  Sale,  p.  16'J,  and  I  am  not 
aware  that  any  of  the  cases  he  cites  and  comments  on  in  sup|)ort  of  his 
reasoning  have  been  ever  overruled,  qualified,  or  questioned.  He  says, 
"  This  is  a  rule,  which,  Avithin  the  limits  applied  by  law,  is  of  great 
equity ;  for  Avhen  parties  have  agreed  to  act  upon  an  assumed  state  of 
facts,  their  rights  betAveen  themselves  are  justly  made  to  de-pend  on 
the  conventional  .state  of  facts,  and  not  on  the  truth.  The  reason  of 
the  rule  ceases  at  once  Avlien  a  stranger  to  the  arrangement  seeks  to 
avail  himself  of  the  statements  Avhich  Avere  not  made  as  a  basis  for  him 
to  act  upon.  They  are  for  a  stranger  evidence  against  the  party  mak- 
ing the  statement,  but  no  more  than  evidence  which  may  be  rebutted; 
betAveen  the  parties  thoy  form  an  estoppel  in  laAV." 

1  2  H.  &  C.  164;  32  L.  J.  (Ex.)  186. 
3  2  C.  &  M.  530. 


\ 


2  2  B.  &  C.  540. 
*  2  Campb.  344. 


772  CEOFOOT   V.    BENNETT.  [CHAP.  II. 

Lush,  J.  I  also  think  that  the  plaintiff  is  entitled  to  judgment  on 
this  short  and  intelligible  ground,  supported  by  sound  reason  and  by- 
all  the  authorities,  that  the  defendant,  by  what  he  said  to  the  station- 
master,  assented  to  the  transfer,  and  induced  the  plaintiff  to  believe 
that  he  would  hold  the  barley  to  his  order.  By  so  doing  he  altered  the 
position  of  the  plaintiff  towards  Maris.  The  plaintiff  might,  on  a 
refusal  by  the  defendant  to  hold  for  him,  have  applied  to  Maris,  and  he 
was  deprived  of  the  information  which  would  have  caused  him  to  have 
done  so.  The  defendant  is  therefore  precluded  from  denying  what  he 
said.  There  is  no  distinction  whatever  between  this  case  and  Woodley 
V.  Coventry,!  [^  principle.  There  the  party  actually  paid  the  money, 
here  the  plaintiff  had  already  paid  the  money  first ;  but  if  his  order 
had  been  rejected  he  might  have  required  his  money  back. 

/  jMule  absolute  to  enter  a  verdict  for  the  plaintiff . 


ROFOOT  V.  BENNETT. 
i)RK  Court  of  Appeals,  May  Term,  1849. 

\Iteported  in  2  Comstock,  258.] 

Sylvester  Croeoot  sued  Bennett  in  the  Supreme  Court  in  tres- 
pass for  taking  a  quantity  of  brick.  On  the  trial  before  Willard,  J., 
at  the  Washington  circuit  in  1847,  it  appeared  that  Horace  Crofoot,  on 
^  "^  the  2d  of  September,  1846,  in  consideration  of  a  previous  indebtedness  to 
nJ  (  J^  and  a  new  advance  by  the  defendant,  transferred  to  him  by  writing  all 
's»  <^  the  brick  in  two  kilns  previously  burnt  in  Crofoot's  yard,  supposed  to 
'"^^  be  45,000,  and  43,000  to  be  taken  out  of  a  new  kiln  which  he  was  then 
^  OJ  putting  up.  It  was  stated  in  the  writing  that  the  defendant  had  paid 
i  In  for  the  brick,  and  that  they  were  to  be  good  merchantable  brick.  On 
^  N  the  next  day  the  defendant  went  to  the  yard  for  the  purpose  of  having 
^  t'  all  the  brick  delivered  to  him,  and  on  that  occasion  the  brick  already 
^  ^  burnt,  as  well  as  those  unbiirnt,  were  pointed  out  to  the  defendant  by 
I '  ^  Horace  Crofoot,  and  the  defendant  took  possession  of  the  premises 
^  N^  where  the  brick  were  and  gave  directions  about  them ;  but  none  of 
•j^V^  those  in  the  uuburnt  kiln  were  counted  out  or  marked,  or  set  apart 
«  ^  from  the  residue.  Horace  Crofoot  agreed  with  the  defendant  to  burn 
'^  V^  the  unfinished  kiln,  which  he  accordingly  did.  On  the  6th  of  October 
"^  A  following  Horace  Crofoot  executed  to  the  plaintiff,  who  was  his  brother, 
S  nJ     a  bill  of  sale  of  all  the  bricks  in  such  new  kiln.     On  the  8th  of  the  same 

^  vS    ^  1  2  H.  &  C.  164 ;  32  L.  J.  (Ex.)  185. 


.^ 


SECT.  IV.]  CROFOOT   V.   BENNETT.  773 

month  tlie  defendant  o])encd  tlic  kiln  and  took  tlierefrom  and  carried 
away  tlie  quantity  wliicli  had  been  purchased  by  liim  out  of  tliat  kiln^ 
and  for  that  taking  the  phiintiff  brought  this  action.  Justice  Willard 
held  that  these  facts  made  out  a  good  delivery  to  the  defendant  on  the 
2d  and  3d  days  of  September,  of  the  bricks  in  question  ;  that  as  against 
him  the  ))laintifrhad  no  title,  and  that  the  defence  was  made  out.  The 
defen(hint  had  a  verdict,  which  the  Supreme  Court  refused  to  set  aside 
on  bill  of  exceptions,  and  the  plaintiff,  after  judgment  in  the  defendant's 
favor,  appealed  to  this  court. 

A.  T.  Wilson^  for  appellant. 

jr.  Parry^  for  respondent. 

Strong,  J.  It  is  said  in  the  opinion  of  the  Supreme  Court,  that  the 
title  to  the  unburnt  bricks  passed  to  the  defendant  on  the  3d  of  Sep- 
tember, before  they  had  been  separated  from  the  mass  in  the  new  kiln, 
or  burnt.  In  this  I  think  they  were  wrong.  Chancellor  Kent  says 
that  when  the  goods  sold  are  mingled  with  others,  they  must  be  as- 
certained, designated,  and  separated  from  the  mass,  before  the  property 
can  ])ass.  It  is  a  fundamental  princii)le  pervading  everywhere  the 
doctrine  of  sales  of  chattels,  that  if  goods  be  sold  while  mingled  with 
others,  by  number,  Aveight,  or  measure,  the  sale  is  incomplete,  and  the 
title  continues  with  the  seller,  until  the  bargained  property  be  sep- 
arated and  identified.  2  Kent's  Com.  49G.  These  rules  are  fully 
supported  by  the  authorities  cited  by  the  chancellor.  The  reason  is, 
that  the  sale  cannot  apply  to  any  article  until  it  is  clearly  designated, 
and  its  identity  thus  ascertained.  In  the  case  uinb  r  consideration,  it. 
could  not  be  said  with  certainty  that  any  particular  brick  belonged  to 
_the  defendant  until  they  had  been  separated  from  the  mass.  If  some 
of  those  in  an  unfinished  state  had  been  spoiled  in  the  burning,  or  had 
been  stolen,  they  could  not  have  been  considered  as  the  property  of 
the  defendant,  and  the  loss  would  not  have  follen  upon  him.  But  if 
the  ^oods  sold  are  clearly  identified,  then,  although  it  may  be  necessary 
to  number,  weigh,  or  measure  them,  in  order  to  ascertain  what  would 
JBetTie  price  of  the  whole  at  a  rate  agreed  upon  between  the  i)arties, 
the  Title  will  pass.  If  a  flock  of  sheei)  is  sold  at  so  much  the  head,  and 
it  is  agreed  that  they  shall  be  counted  after  the  sale  in  order  to  deter- 
mine the  entire  price  of  the  Avholc,  the  sale  is  valid  and  complete.  But 
if  a  given  number  out  of  the  whole  are  sold,  no  title  is  acquired  by  the 
purchaser  until  they  are  separated,  and  their  identity  thus  ascertained 
and  determined.  The  distinction  in  all  these  cases  docs  not  depend  so 
much  upon  what  is  to  be  done,  as  upon  the  object  which  is  to  be  etfected 
by  it.  If  that  is  specification,  the  property  is  not  changed ;  if  it  is 
merely  to  ascertain  the  total  value  at  designated  rates,  the  change  of 
title  is  effected.  In  this  case,  the  judge  who  tried  the  cause  did  not 
decide  directly  that  the  defendant  had  acquired  a  title  to  the  bricks 
which  he  took  before  they  had  been  separated.  The  question  was, 
VOL.  I.  50 


774  CROFOOT   V.    BENNETT.  [CHAP.  11. 

however,  distinctly  raised  by  the  plaintiff's  counsel,  and  was  in  effect 
decided  against  him.  Although  the  judge  erred  in  that,  the  judgment 
will  not  therefore  be  reversed  if  in  legal  intendment  the  eiTor  could  not 
in  any  manner  have  prejudiced  the  plaintiff.  It  could  not  have  had 
that  effect  if  the  plaintiff  must  still  have  failed  in  the  suit  had  the  point 
been  decided  in  his  favor. 

If  the  counsel  for  the  plaintiff  had  insisted  that  the  question- of  de- 
livery of  the  bricks  should  have  been  submitted  to  the  jury  as  one  of 
fact,  there  was  enough  in  the  evidence  to  have  called  upon  the  judge 
to  adopt  that  course  ;  but  this  position  was  not  taken  by  the  counsel : 
on  the  contrary,  he  called  upon  the  judge  to  decide  it  as  a  question  of 
law,  upon  facts  which  were  not.  controverted,  and,  assuming  those  facts 
to  be  true,  the  judge  decided  that  point  correctly.  The  delivery  was 
not  simply  of  the  specific  bricks  eventually  taken  by  the  plaintiff,  but 
of  the  whole  with  the  privilege  of  selection.  The  formal  delivery  of 
the  yard  must  have  been  designed  by  the  parties  to  carry  with  it  the 
possession  of  the  bricks,  or  it  would  have  been  a  mere  idle  ceremony. 
The  defendant  then  took  possession  of  the  whole,  and  gave  directions 
about  burning  those  which  were  yet  in  an  unfinished  state.  It  made 
no  difference  that  such  directions  were  given  to  one  who  had  an  in- 
terest in  a  portion  of  them,  and  had  previously  owned  the  whole.  .  If 

one  sells  an  article,  and  delivers  it,  the  delivery  would  be  none  the  less 
effectual  because  the  vendor  happened  to  be  emjiloyed  to  perform, spme 
additional  work  upon  it,  even  at  his  own  expejise.  And  surely  goods 
may  be  delivered  by  one  to  another  having  an  interest  in  them,  al- 
though the  prior  possessor  may  not  part  with  all  his  title  to  the  whole. 
Under  these  circumstances,  trespass  Avoiild  not  lie  at  the  suit  of  the 
vendor,  or  his  subsequent  vendee.  The  goods  being  in  the  possession 
of  another,  the  vendee  took  his  title  with  an  implied,  if  not  a  positive, 
notice  of  the  rights  of  the  possessor,  to  which  the  interest  acquired  by 
him  was  subordinate.  In  order  to  maintain  trespass,  it  is  necessary 
that  the  plaintiff  should  have  the  actual  possession  of  the  property,  or 
an  absolute  title  to  it,  which  gives  the  right  of  possession.  In  this  case, 
while  the  actual  possession  w^as  in  the  defendant,  it  does  not  appear 
that  any  possession  whatever  had  been  delivered  to  the  plaintiff; 
neither  had  he  the  absolute  property  in  any  of  the  bricks  until  the  de- 
fendant had  exercised  his  right  of  selection.  The  defendant  had, 
therefore,  made  out  a  full  defence  to  the  plaintiff's  action,  as  was  cor- 
rectly decided  by  the  judge ;  and  although  he  may  have  placed  the 
decision  on  different  and  possibly  insufiicient  grounds,  yet,  as  the  judg- 
ment was  right,  it  should  not  be  disturbed. 
Jewett,  C.  J.,  and  Bkokson,  J.,  dissented. 

Judgment  affirmed. 


^1      un^  ^^f^^^^'^'-'/Z 


...J         V      '/^"^      KIMBERLY    V.    PATCHIN.  '  775 


N 


I 


^N    j^'^t)',    i\^    KIMBERLY  et   al.  v.   PATCHIN.        ^^^'^^yz^lAc, 

/^      V    ,>Ne\v  York  Court  of   Appeals,  June  Term,  18o9/^     r,—  tT"^ 

anIV     ^  W  [/Zepor^ed  m  19  New  York  Reports,  330.]  ^,  2  *:^-«-Jw  -^^t^ 

Appeal  from  the  Supreme  Court.  Action  to  recover  the  vahie  of 
6000  bushels  of  wheat,  alleged  to  have  been  the  property  of  the  plain- 
tiffs, and  to  have  been  converted  by  the  defendant.  Upon  the  trial 
before  Mr.  Justice  Greene,  at  the  Erie  Circuit,  it  was  proved  that  one 
Dickinson  had  in  warehouse,  at  Littlefort,  in  Wisconsin,  tAvo  piles  of 
wheat,  amounting  to  6249  bushels.  John  Shuttleworth  proposed  to 
purchase  6000  bushels  of  wheat.  Upon  being  shown  the  piles,  he  ex- 
pressed a  doubt  whether  they  contained  that  quantity.  Dickinson 
declared  his  opinion  that  they  did,  and  agreed  to  make  up  the  quantity 
if  they  fell  short.  A  sale  Avas  then  made  at  seventy  cents  per  bushel, 
Dickinson  signing  and  delivering  to  Shuttleworth  a  memorandum,  as 

follows :  — 

Littlefort,  February  17,  1848. 
John  SnuxxLEWORxn  Bought  of  D.  O.  Dickinson 

6000  bushels  of  wheat,  delivered  on  board,  70  cents $4,200 

Received  his  draft  upon  John  Shuttleworth,  of  Buffalo,  for       $2,100 

To  remit  me 1,600 

Five  drafts  of  $100  each 500 

4,200 

D.  O.  Dickinson. 

He  also  signed  and  delivered  to  Shuttleworth,  this  paper,  viz. :  — 

Littlefort,  February  18,  lb48. 
6000  bushels  wheat. 

Received  in  store  6000  bushels  of  wheat,  subject  to  the  order  of  John  Shut- 
tleworth, free  of  all  charges,  on  board.  D.  O.  Dickinson. 

The  wheat  was  left  undisturbed  in  the  warehouse.  Shuttleworth 
sold  the  wheat  to  the  defendant,  assigning  to  him  the  bill  of  sale  and 
warehouse  receipt.  Dickinson,  shortly  afterwards,  sold  the  whole 
quantity  of  Avheat  in  the  two  piles  to  a  person  under  whom  the  plain- 
tiffs derived  title.  The  defendant  having  obtained  the  possession  of 
the  wheat,  this  action  was  brought.  The  judge,  under  exception  by 
the  defendant,  directed  a  verdict  for  the  plaintiffs,  which  was  rendered, 
and  the  judgment  thereon  having  been  affirmed  at  general  term,  in  the 
eighth  district,  the  defendant  appealed  to  this  court. 

John  11.  Reynolds,  for  the  appellant. 

John  L.  Talcott,  for  the  respondents. 


776  KIMBERLY   V.    PATCHIN.  [CHAP.  II. 

CoMSTOCK,  J.  Both  parties  trace  their  title  to  the  wheat  in  con- 
troversy to  D.  O.  Dickinson,  who  was  the  former  owner,  and  held  it  in 
store  at  Littlefort,  Wisconsin.  The  defendant  claims  through  a  sale 
made  by  Dickinson  to  one  Shuttleworth  on  the  18th  of  February, 
1848.  If  that  sale  was  effectual  to  pass  the  title,  it  is  not  now  pre- 
tended that  there  is  any  ground  on  which  the  plaintiffs  can  recover  in 
this  suit.  The  sale  to  the  jDerson  under  whom  they  claim,  was  about 
two  and  a  half  months  junior  in  point  of  time. 

The  sale  to  Shuttleworth  was  by  a  writing  in  the  form  of  a  present 
transfer  of  6000  bushels  of  wheat,  at  seventy  cents  per  bushel.  No 
manual  delivery  was  then  made,  but  instead  thereof  the  vendor  exe- 
cuted and  delivered  to  the  vendee  another  instrument,  declaring  that 
he  had  received  in  store  the  6000  bushels  subject  to  the  vendee's 
order;  of  the  price  $2600  was  paid  down,  and  the  residue  81600, 
which  was  to  be  paid  at  a  future  day,  the  purchaser  afterwards  offei-ed 
to  pay,  according  to  the  agreement.  So  far  the  contract  had  all  the 
requisites  of  a  perfect  sale.  The  sum  to  be  paid  by  the  purchaser  was 
ascertained,  because  the  number  of  bushels  and  the  price  per  bushel 
were  specified  in  the  contract.  Although  the  article  was  not  delivered 
into  the  actual  possession  of  the  purchaser,  yet  the  seller,  by  the  plain 
temis  of  his  agreement,  constituted  himself  the  bailee,  and  henceforth 
stood  in  that  relation  to  the  purchaser  and  to  the  property.  That  was 
equal  in  its  results  to  the  most  formal  delivery,  and  no  argument  is 
required  to  show  that  the  title  was  completely  divested,  unless  a  diffi- 
culty exists  yet  to  be  considered. 

Tlie  quantity  of  wheat  in  store  to  which  the  contract  related,  was 
estimated  by  the  parties  at  about  6000  bushels.  But  subsequently, 
after  Dickinson  made  another  sale  of  the  same  wheat  to  the  party 
under  whom  the  plaintiffs  claim,  it  appeared  on  measurement  that  the 
number  of  bushels  was  624:9,  being  an  excess  of  249  bushels.  When 
Shuttleworth  bought  the  6000  bushels,  that  quantity  was  mixed  in 
the  storehouse  with  the  excess,  and  no  measurement  or  sej^aration  was 
made.  The  sale  was  not  in  bulk,  but  precisely  of  the  6000  bushels. 
On  this  ground  it  is  claimed,  on  the  part  of  the  plaintiffs,  that  in  legal 
effect  the  contract  was  executory,  in  other  words  a  mere  agreement  to 
sell  and  deliver  the  specified  quantity,  so  that  no  title  passed  by  the 
transaction.  It  is  not  denied,  however,  nor  does  it  admit  of  denial, 
that  the  parties  intended  a  transfer  of  the  title.  The  argument  is,  and 
it  is  the  only  one  which  is  even  plausible,  that  the  law  overrules  that 
intention,  although  expressed  in  plain  written  language,  entirely  appro- 
priate to  the  purpose. 

It  is  a  rule  asserted  in  many  legal  authorities,  but  which  may  be 

quite  as  fitly  called  a  rule  of  reason  and  logic  as  of  law,  that  in  order 

/     to  an  executed  sale,  so  as  to  transfer  a  title  from  one  party  to  another, 

the  *hing  sold  must  be  ascertained.     This  is  a  self-evident  truth,  when 


SECT.  IV.]  KIMBERLY    V.    PATCHIN.  777 

applied  to  those  subjects  of  property  which  are  distinguishable  by  their 
physical  attributes  from  all  other  things,  and,  therefore,  are  capable  of 
exact  identification.  No  person  can  be  said  to  own  a  horse  ur  a  pic- 
ture, unless  he  is  able  to  identify  the  chattel  or  specify  what  horse  or 
what  picture  it  is  that  belongs  to  him.  It  is  not  only  legally,  but 
logically,  impossible  to  hold  property  in  such  things,  unless  they  are 
ascertained  and  distinguished  from  all  other  things;  and  this,  I  ap- 
prehend, is  the  foundation  of  the  rule  that,  on  a  sale  of  chattels,  in 
order  to  pass  the  title,  the  articles  must,  if  not  delivered,  be  designated, 
so  that  possession  can  be  taken  by  the  purchaser  without  any  further 
act  on  the  part  of  the  seller. 

But  property  can  be  acquired  and  held  in  many  things  which  are 
incapable  of  such  an  identification.  Articles  of  this  nature  are  sold, 
not  by  a  description  which  refers  to  and  distinguishes  the  particular 
thing,  but  in  quantities,  which  are  ascertained  by  weight,  measure,  or 
count ;  the  constituent  parts  which  make  up  the  mass  being  undis- 
tinguishablc  from  each  other  by  any  physical  difference  in  size,  shape, 
texture,  or  quality.  Of  this  nature  are  wine,  oil,  wheat,  and  the  other 
cereal  grains,  and  the  flour  manufactured  from  them.  These  can  be 
identified  only  in  masses  or  quantities,  and  in  that  mode,  therefore, 
they  are  viewed  in  the  contracts  and  dealings  of  men.  In  respect  to 
such  things,  the  rule  above  mentioned  must  be  applied  according  to 
the  nature  of  the  subject.  In  an  executed  and  perfect  sale,  the  things 
sold,  it  is  true,  must  be  ascertained.  But  as  it  is  not  possible  in  reason 
and  philosophy  to  identify  each  constituent  particle  composing  a  quan- 
tity, so  the  law  does  not  require  such  an  identification.  Where  the 
quantity  and  the  general  mass  from  which  it  is  to  be  taken  are  specified, 
the  subject  of  the  contract  is  thus  ascertained,  and  it  becomes  a  possi- 
ble result  for  the  title  to  pass,  if  the  sale  is  complete  in  all  its  other 
circumstances.  An  actual  delivery  indeed  cannot  be  made  unless  the 
whole  is  transferred  to  the  possession  of  the  purchaser,  or  unless  the  — 
particular  quantity  sold  is  separated  from  the  residue.  But  actuar  ,*"  *^*'*^ 
,  delivery  is  not  indispensable  in  any  case  in  order  to  pass  a  title,  if  the  '^  *'  ^^ 
thing  to  be  delivered  is  ascertained,  if  the  price  is  paid  or  a  credit'^'"'*'  "" 
given,  and  if  nothing  further  remains  to  be  done  in  regard  to  it.  ^t'C^C/T 

It  appeal's  to  me  that  a  very  simple  and  elementary  inquiry  lies  at  "" 

the  foundation  of  the  present  case.  A  quantity  of  wheat  being  in 
store,  is  it  possible  in  reason  and  in  law  for  one  man  to  own  a  given 
portion  of  it  and  for  another  man  to  own  the  residue  without  a  sepa- 
ration of  the  parts  ?  To  bring  the  inquiry  to  the  f  icts  of  the  case :  in 
the  storehouse  of  Dickinson  there  was  a  quantity  not  precisely  known. 
In  any  conceivable  circumstances  could  Shuttleworth  become  owner  of 
6000  bushels,  and  Dickinson  of  the  residue,  which  turned  out  to  be 
249  bushels,  without  the  portion  of  either  being  divided  from  the 
other?     The  answer  to  this  inquiry  is  plain.     Suppose  a  third  person, 


778  KTMBERLY   V.   PATCHIN.  [CHAP.  II. 

being  the  prior  owner  of  the  whole,  had  given  to  S.  a  bill  of  sale  of 
6000  bushels,  and  then  one  to  D.  for  the  residue  more  or  less,  intend- 
ing to  pass  to  each  the  title,  and  expressing  that  intention  in  plain 
words,  Avhat  would  have  been  the  result  ?  The  former  owner  most 
certainly  would  have  parted  with  all  his  title.  If,  then,  the  two  pur- 
chasers did  not  acquire  it,  no  one  could  own  the  wheat,  and  the  title 
would  be  lost.  This  would  be  an  absurdity.  But  if  the  parties  thus 
purchasing  could  and  would  be  the  owners,  how  would  they  hold  it  ? 
Plainly  according  to  their  contracts.  One  would  be  entitled  to  6000 
bushels,  and  the  other  to  what  remained  after  that  quantity  was  sub- 
tracted. 

Again  suppose,  Dickinson  having  in  store  and  owning  249  bushels, 
Shuttleworth  had  dej^osited  with  him  6000  bushels  for  storage  merely, 
both  parties  agreeing  that  the  quantities  might  be  mixed.  This  would 
be  a  case  of  confusion  of  property  where  neither  would  lose  his  title. 
In  the  law  of  bailments  it  is  entirely  settled  that  S.,  being  the  bailor  of 
the  6000  bushels,  Avould  lose  nothing  by  the  mixture,  and,  it  being  done 
by  consent,  it  is  also  clear  that  the  bailee  would  lose  nothing.  Story 
on  Bailments,  §  40 ;  2  Bl.  Com.  405. 

These  and  other  illustrations  which  might  be  suggested,  demonstrate 
the  possibility  of  a  divided  ownership  in  the  6249  bushels  of  wheat. 
If,  then,  the  law  admits  that  the  property,  while  in  mass,  could  exist 
under  that  condition,  it  was  plainly  competent  for  the  parties  to  the 
sale  in  question,  so  to  deal  with  each  other  as  to  effectuate  that  result. 
One  of  them  being  the  owner  of  the  Avhole,  he  could  stipulate  and 
asrree  that  the  other  should  thenceforth  own  6000  bushels  Avithout  a 
separation  from  the  residue.  And  this,  I  think,  is  precisely  what  was 
done.  The  6000  bushels  might  have  been  measured  and  delivered  to 
the  purchaser,  and  then  the  same  wheat  might  have  been  redelivered 
to  the  seller  under  a  contract  of  bailment.  In  that  case  the  seller 
would  have  given  his  storehouse  receipt  in  the  very  terms  of  the  one 
which  he  actually  gave ;  and  he  might,  moreover,  have  mixed  the 
wheat  thus  redelivered  with  his  own,  thereby  reducing  the  quantity 
sold  and  the  quantity  i;nsold  again  to  one  common  mass.  Now  the 
contract  of  sale  and  of  bailment,  both  made  at  the  same  time,  produced 
this  very  result.  The  formalities  of  measurement  and  delivery  pursu- 
ant to  the  sale,  and  of  redelivery  according  to  the  bailment  —  resulting 
in  the  same  mixture  as  before  —  most  assuredly  Avere  not  necessary  in 
order  to  pass  the  title,  because  these  formalities  would  leave  the  prop- 
erty in  the  very  same  condition  under  which  it  Avas  in  fact  left ;  that 
is  to  say,  in  the  actual  custody  of  the  vendor,  and  blended  together  in  a 
common  mass.  Those  formal  and  ceremonial  acts  Avere  disjjensed  Avith 
by  the  contract  of  the  parties.  They  went  directly  to  the  result  with- 
out the  "performance  of  any  useless  ceremonies,  and  it  would  be  strange, 
indeed,  if  the  law  denied  their  power  to  do  so. 


BECT.  IV.]  KIMBKRLY    V.    PATCHIN.  779 

There  are  in  the  books  a  considerable  number  of  cases  having  a  real 
or  some  apparent  bearing  upon  the  question  umler  consideration. 
Some  of  them  very  unequivocally  support  the  defendant's  title  under 
the  sale  to  Shuttleworth.  A  few  only  of  these  will  be  cited.  In 
Whitehouse  v.  Fi'ost,  12  East,  G14,  the  vendors  owned  forty  tons  of 
oil  secured  in  one  cistern,  and  they  sold  ten  tons  out  of  the  forty,  but 
the  quantity  sold  was  not  measured  or  delivered.  Tlie  jturchaser  sold 
the  same  ten  tons  to  another  person,  and  gave  a  written  order  on  the 
original  vendors,  which,  on  being  presented,  they_  accepted,  by  writing 
the  word  "  accepted "  on  the  face  of  the  order,  and  signing  their 
names.  It  was  held  by  the  English  Common  Pleas  that  the  title 
passed ;  considerable  stress  being  laid  on  the  acceptance  of  the  order, 
wliich,  it  was  said,  placed  the  vendors  in  the  relation  of  bailees  to  the 
quantity  sold.  This  was  in  1810.  In  the  following  year  the  case  of 
Jackson  v.  Anderson,  4  Taunt.  24,  was  decided  in  the  King's  Bench. 
That  was  an  action  of  trover  for  1960  pieces  of  coin  called  Spanish 
dollars.  Mr.  Fielding,  at  Buenos  Ayres,  remitted  to  Laycock  &  Co., 
at  London,  84700,  and  advised  the  plaintiffs  that  19G0  of  the  number 
were  designed  for  them  in  i)ayraent  for  goods  bought  of  them.  Lay- 
cock  &  Co.  received  the  4700  pieces,  and  pledged  the  whole  of  them 
to  the  defendant,  who  sold  them  to  the  Bank  of  England.  It  Avas  held  : 
1.  That  the  letter  of  advice  was  a  sufficient  appropriation  of  §1900  to 
the  plaintiffs.  2.  That  the  plaintiffs  and  defendant  did  not  become 
joint-tenants  or  tenants  in  common  of  the  doHars.  3.  That  although 
no  specific  dollars  were  separated  from  the  residue  for  the  plaintiffs, 
yet  as  the  defendant  had  converted  the  whole,  trover  would  lie  for  the 
plaintiffs'  share.  Of  course  the  action  in  its  nature  directly  involved 
the  plaintiffs'  title,  and  it  was  held  that  the  sale  or  approjn-iation  of  a 
part  without  any  separation  was  a  perfect  sale.  In  Pleasants  v. 
Pendleton,  6  Rand.  473,  the  sale  (omitting  immaterial  circumstances) 
was  of  119  out  of  123  barrels  of  flour,  situated  in  a  warehouse,  all  of 
the  same  brand  and  quality.  It  was  held  by  the  Virginia  Court  of 
Appeals,  upon  very  elaborate  consideration,  and  after  a  review  of  all 
the  cases,  that  the  title  was  transferred  by  the  sale.  See  also  Danion 
V.  Osborn,  1  Pick.  477 ;  Crofoot  v.  Bennett,  2  Comst.  258.  In  the 
last  mentioned,  which  was  decided  in  this  court,  the  sale  was  of  43,000 
bricks  in  an  unfinished  kiln  containing  a  larger  quantity.  A  formal 
possession  of  the  whole  In-ick-yard  was  taken  by  the  purchaser.  It 
was  held  that  he  acquired  title  to  the  43,000,  although  no  separation 
was  made.  In  the  opinion  of  Judge  Strong,  the  case  was  made  to  turn 
mainly  on  a  supposed  delivery  of  the  whole  quantity.  But,  with 
deference,  that  circumstance  does  not  appear  to  me  to  have  been  the 
material  one,  inasmuch  as  all  the  bricks  confessedly  were  not  sold. 
The  delivery,  therefore,  did  not  make  the  sale,  and  if  part  could  not 
be  sold  Avithout  being  separated,  I  do  not  see  how  a  formal  delivery  of 


780  KIMBERLY    V.    PATCHIN.  [CHAP.  II. 

the  whole  brick-yard  could  cure  the  difficulty.  The  learned  judge 
speaks  of  the  transaction  as  a  delivery  of  the  whole  quantity  "  with 
the  privilege  of  selection."  But  assuming,  as  he  did,  that  the  want  of 
selection  or  separation  was  the  precise  difficulty  to  be  overcome,  it  is  not 
easy  to  see  how  a  privilege  to  select  could  change  the  title  before  the 
selection  was  actually  made.  The  case,  therefore,  it  seems  to  me,  can 
only  stand  on  the  ground  that  the  sale  was,  in  its  nature,  complete ; 
the  formal  delivery  of  the  whole  being  doubtless  a  circumstance  en- 
titled to  weight  in  arriving  at  the  intention  of  the  parties.  The  case 
is,  in  short,  a  strong  authority  to  prove  that,  in  sales  by  weight,  meas- 
ure, or  count,  a  separation  of  the  part  sold  from  the  mass  is  not  in  all 
cases  a  fundamental  requisite. 

Referrino:  now  to  cases  where  it  has  been  held  that  sales  of  this 
general  nature  Avere  incomplete,  it  will  be  found  that  they  are  not 
essentially  and  necessarily  opposed  to  the  conclusion  that,  in  the 
instance  before  us,  the  title  was  changed.  In  White,  assignee,  &c.,  v. 
Wilks,  5  Taunt.  176,  a  merchant  sold  twenty  tons  of  oil  out  of  a 
stock  consisting  of  different  •  large  quantities  in  different  cisterns,  and 
at  various  warehouses.  The  note  of  sale  did  not  express  the  quality 
or  kind  of  oil  sold,  or  the  cistern  or  warehouse  from  which  it  was  to  be 
taken,  and  the  purchaser  did  not  even  know  where  the  particular  oil 
lay  which  was  to  satisfy  the  contract.  Very  clearly  the  title  could  not 
pass  upon  such  a  sale ;  and  so  it  was  held,  although  the  seller  was 
entitled  by  the  contract  to  charge  "  Is,  per  ton  per  week  rent,"  for 
keeping  the  oil.  A  very  different  question  would  have  been  presented 
if  the  cistern  from  which  the  twenty  tons  were  to  be  taken  had  been 
specified.  The  mass  and  quality  would  then  have  been  ascertained.  As 
it  Avas,  the  subject  of  the  contract  was  not  identified  in  any  manner. 
The  remarks  of  the  judge,  ^evidently  not  made  with  much  deliberation, 
must  be  construed  with  reference  to  the  particular  facts  of  the  case. 

In  Austen  v.  Craven,  4  Taunt.  644,  there  was  a  contract  to  sell 
200  hogsheads  of  sugar,  to  be  of  four  different  kinds  and  qualities 
which  were  specified.  It  did  not  appear  that  the  seller,  at  the  time  of 
the  contract,  had  the  sugar  on  hand,  or  any  part  of  it,  and  the  fact  was 
assumed  to  be  otherwise.  The  sale  was,  moreover,  at  so  much  per 
cwt.,  requiring  that  the  sugar  should  be  weighed  in  order  to  ascertain 
the  price.  In  these  circumstances  the  case  was  considered  plainly  dis- 
tinguishable from  Whitehouse  v.  Frost,  svjjra,  and  it  was  held  that 
the  title  did  not  pass.  I  do  not  see  the  slightest  ground  for  question- 
ing the  decision,  although,  perhaps,  one  or  two  remarks  of  Chief  Justice 
Mansfield  are  capable  of  a  Avider  application  than  the  facts  of  the  case 
would  justify. 

The  two  cases  last  mentioned  have  been  not  unfrequently  cited  in 
various  later  English  and  American  authorities,  which  need  not  be 
particularly  referred  to.     Some  of  these  authorities  may  suggest    a 


SECT.  IV.]  KIMBERLY    V.    PATCHIN.  781 

doubt  whether  the  title  passes  on  a  mere  sale  note  by  measure  or 
wciglit  out  of  a  larger  quantity  of  the  same  kind  and  quality,  there 
being  no  separation  and  no  other  circumstances  clearly  evincing  an 
intention  to  vest  the  title  in  the  purchaser.  It  is  unnecessary  now  to 
solve  that  doubt,  because  none  of  the  decisions  announce  the  extreme 
doctrine,  that  where,  in  such  cases,  the  parties  expressly  declare  an 
intention  to  change  the  title,  there  is  any  legal  impossibility  in  the 
way  of  that  design.  Upon  a  simple  bill  of  sale  of  gallons  of  oil  or 
bushels  of  wheat,  mixed  with  an  ascertained  and  defined  larger  quantity, 
it  may  or  may  not  be  considered  that  the  parties  intend  that  the  portion 
sold  shall  be  measured  before  the  purchaser  becomes  invested  with  the 
title.  That  may  be  regarded  as  an  act  remaining  to  be  done,  in  which 
both  parties  have  a  right  to  participate.  But  it  is  surely  competent 
for  the  vendor  to  say  in  terms,  that  he  waives  that  right,  and  that  the 
purchaser  shall  become  at  once  the  legal  owner  of  the  number  of  gal- 
lons or  bushels  embraced  in  the  sale.  If  he  cannot  say  this  effectually, 
then  the  reason  must  be  that  two  men  cannot  be  owners  of  separate 
quantities  or  proportions  of  an  undistinguishable  mass.  That  conclu- 
sion would  be  a  naked  absurdity,  and  I  have  shown  that  such  is  not 
the  law.  In  the  case  before  us  the  vendor  not  only  executed  his  bill 
of  sale  professing  to  transfer  6000  bushels  of  wheat,  but,  waiving  all 
further  acts  to  be  done,  in  order  to  complete  the  transaction,  he  ac- 
knowledged himself,  by  another  instrument,  to  hold  the  same  wheat 
in  store  as  the  b.iilee  thereof  for  the  purchaser.  If  his  obligations  from 
that  time  were  not  simply  and  precisely  those  of  a  bailee,  it  is  because 
the  law  Avculd  not  suffer  him  to  stand  in  that  relation  to  the  property 
for  the  reason  that  it  was  mixed  with  his  own.  But  no  one  will  con- 
tend for  such  a  doctrine. 

I  repeat  it  is  unnecessary  to  refer  to  all  the  cases,  or  to  determine 
between  such  as  may  appear  to  be  in  conflict  with  each  other.  None 
of  them  go  to  the  extent  of  holding  that  a  man  cannot,  if  he  Avishes 
and  intends  so  to  do,  make  a  perfect  sale  of  part  of  a  quantity  without 
actual  separation,  where  the  mass  is  ascertained  by  the  contract  and 
all  parts  are  of  the  same  value  and  undistinguishable  from  each  other. 

One  of  the  cases,  however,  not  yet  cited,  deserves  a  brief  consider- 
ation, because  it  was  determined  in  this  court,  and  has  been  much 
relied  on  by  the  plaintiffs'  counsel,  I  refer  to  Gardiner  u.  Suydam,  3 
Seld.  357.  The  owner  of  flour  delivered  it  in  various  parcels  to  a 
warehouseman,  and  from  time  to  time  took  receijjts  from  him.  One 
of  these  receipts  was  held  by  the  defendants  and  others  by  the  plain- 
tiffs, both  p;irties  having  accepted  and  paid  drafts  on  the  faith  thereof. 
The  defendants'  receipt  Avas  the  first  in  jjoint  of  time,  and  was  for  536 
barrels,  beins:  given  at  a  time  when  in  fact  there  were  but  '201  barrels 
in  the  warehouse,  so  that  it  covered  335  more  than  were  then  on  hand. 
But  other  quantities  were  subsequently  delivered  at  the  warehouse,  all 


Y82  KIMBERLY   V.    PATCHIN.  [CHAP.  11. 

of  the  same  kind  and  quality,  and  the  defendants,  in  fact,  received  by 
shipment  to  them,  500  barrels.     For  the  conversion  of  this  quantity 
they  were  sued  by  the  plaintiffs,  Avho  had  foiled  to  receive  the  flour 
which  their  receipts  called  for.     It  cannot  fail  to  be  seen  from  this 
statement  that  the   defendants,  having  the  first  receipt  and  receiving 
no  more  flour  than  it  specified,  were  entitled  to  judgment  by  reason  ot 
the  priority  of  their  title  ;  and  this  gi-ound  of  decision  is  very  clearly 
stated  in  the  opinion  of  the  chief  judge.     He  thought  if  the  transfer 
of  the  receipts  could  pass  the  title  to  the  flour,  notwithstanding  the 
mixture  of  all  the  quantities  together,  that  the  one  held  by  the  defend- 
ants entitled  them  not  only  to  the  201  barrels  in  store  when  it  was 
given,  but  also  to  so  many  barrels  delivered  in  store  afterwards  as 
were  necessary  to  make   up  their  number.     This  view,  which  appears 
to  me  correct,  was  fatal  to  the  plaintiffs'  case.     But  in  another  aspect 
of  the  controversy,  the  learned  chief  judge  was  of  opinion  that  the 
transfer  to  the  plaintiffs  of  the  receipts  held  by  them  passed  no  title, 
on  the  ground  that  the  quantities  which  they  respectively  covered 
were  all  mixed  together  in  the  storehouse.     Assuming  the  correctness 
of  that  view  —  which  I  am  constrained  to  question  —  the  case  is  still 
unlike  the  present  one.     The   transfer  of  a  warehouseman's  receipt, 
given  to  the  owner,  was  certainly  no  more  than  a  simple  sale  note  of 
the  specified  number  of  barrels ;  and  where,  in  such  cases,  that  is  the 
whole  transaction  between  vendor  and  vendee  I  have   already  ad- 
mitted a  doubt,  suggested  by  conflicting  cases,  Avhether  the  title  passes. 
If  the  owner  of  the  flour  had  held  it  in  his  own  Avarehouse,  and  had 
not  only  given  a  bill  of  sale  of  a  portion  of  it,  but  had  himself  executed 
to  the  purchaser  another  instrument  declaring  that  he  held  the  quan- 
tity sold  as  bailee  and  subject  to  order,  then  the  case  would  have 
resembled  the  one  now. to  be  determined. 

We  are  of  opinion,  therefore,  both  upon  authority  and  clearly  upon 
the  principle  and  reason  of  the  thing,  that  thfe  defendant,  under  the 
sale  to  Shuttleworth,  acquired  a  perfect  title  to  the  6000  bushels 
of  wheat.  Of  that  quantity  he  took  possession  at  Buffalo,  by  a  Avrit 
of  replevin  against  the  master  of  the  vessel  in  which  the  whole  had 
been  transported  to  that  place.  For  that  taking  the  suit  Avas  brought, 
and  it  results  that  the  plaintiff  cannot  recover.  It  is  unnecessary  to 
decide  Avhether  the  parties  to  the  original  sale  becaiue  tenants  in  com- 
mon. If  a  tenancy  in  common  arises  in  such  cases,  it  must  be  Avith 
some  peculiar  incidents  not  usually  belonging  to  that  species  of  owner- 
ship. I  think  each  party  Avould  have  the  right  of  severing  the  tenancy 
by  his  oAvn  act ;  that  is,  the  right  of  taking  the  portion  of  the  mass 
which  belonged  to  him,  being  accountable  only  if  he  invaded  the  quan- 
tity Avhich  belonged  to  the  other.  But  assuming  that  the  case  is  one 
of  strict  tenancy  in  common,  the  defendant  became  the  OAvner  of  6000 
and  the  plaintiffs  of  249  parts  of  the  Avhole.     As  neither  could  main- 


SECT.  IV.]  SCUDDER   V.    WORSTER.  783 

tain  an  action  against  the  other  for  taking  possession  merely  of  the 
whole,  more  clearly  he  cannot  if  the  other  takes  only  the  quantity 
whicli  belongs  to  him. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 

Gray  and  Grover,  J.T.,  dissented;  Strong,  J.,  expressed  himself  as 
inclined  to  concur,  if  necessary  to  a  decision,  but  it  being  unnecessary, 
he  reserved  his  judgment. 

j^^-L^        v*'^  Judgment  reversed  and  new  trial  ordered.} 


HARYEY   SCUDDER  v.  JOHN   WORSTER  and  Another. 

Supreme  Judicial   Court  of  Massachusetts,  November  Term, 

1853. 

[Reported  in  11  Cashing,  573.] 

This  was  an  action  of  replevin,  for  150  barrels  of  pork,  to  which  the 
defendants  pleaded  only  the  general  issue.  It  was  submitted  to  this 
court  on  an  agreed  statement  of  fiacts,  which,  so  far  as  necessary  to  a 
proper  understanding  of  the  points  involved,  sufficiently  appear  in  the 
opinion. 

H.  A.  Scudder,  for  the  plaintiff. 

W.  G.  Jiicssell,  for  the  defendants. 

Dewey,  J.^  .  .  .  It  appears  from  the  facts  stated,  that  on  February 
10,  1850,  a  contract  was  made  by  the  defendants  with  Secomb,  Taylor, 
&  Company,  to  sell  them  250  barrels  of  pork. branded  "Worcester  & 
Plart;"  that  a  bill  of  sale  of  the  pork  was  made  and  delivered  to  them, 
and  they  gave  the  defendants  their  negotiable  promissory  notes  of  hand 
therefor,  payable  in  six  months ;  that  it  was  further  agreed  that  the 
pork  should  remain  in  defendants'  cellar  on  storage,  at  the  risk  and 
expense  of  the  ]5urchasers ;  that  Secomb,  Taylor,  &  Comixiny,  on  the 
13th  of  May,  1850,  sold  100  barrels  of  the  pork  to  one  Lang,  who  re- 
ceived the  same  of  the  defendants  upon  the  order  of  Secomb,  Taylor, 
&  Company;  that  on  the  27th  of  May,  1850,  Secomb,  Taylor,  &  Com- 
pany sold  the  plaintiff  150  barrels,  Avith  an  order  on  the  defendants 
therefor.  The  next  day  the  plaintiff  gave  notice  to  the  defendants  of 
the  purchase,  and  requested  them  to  hold  the  same  on  storage  for  him, 
to  which  tlic  defendants  assented.  On  the  25th  of  June,  Secomb,  Tay- 
lor, &  Company  became  insolvent,  and  on  the  same  day  the  plaintiff 

1  Followed  in  Russell  i'.  Carrington,  42  N.  Y.  118.  — Ed. 

i  The  part  omitted  does  not  affect  the  merits  of  the  case.  —  Ed. 


784  SCUDDER   V.    WORSTER.  [CHAP.  II. 

called  uiDon  the  defendants  for  the  purpose  of  receiving  the  150  barrels 
of  pork,  but  the  defendants  refused  to  allow  him  to  do  so.  On  the  next 
day  a  more  formal  demand,  accompanied  by  an  offer  to  pay  storage, 
was  made,  which  being  refused  by  the  defendants,  an  action  of  replevin 
was  instituted,  and  150  barrels  of  pork,  the  same  now  in  controversy, 
were  taken  and  removed  from  said  cellar,  and  delivered  to  the  plain- 
tiff. 

The  further  fact  is  stated  in  the  case,  and  it  is  this  which  raises  the 
question  of  property  in  the  plaintiff,  that  the  pork  bargained  and  sold 
in  the  manner  above  stated  was  in  the  cellar  of  the  defendants,  and  a 
parcel  of  a  larger  quantity  of  the  same  brand,  and  also  with  some  of  a 
different  brand,  and  so  continued  parcel  of  a  larger  quantity  of  similar 
branfl,  up  to  the  time  of  the  suing  out  of  the  plaintiff's  writ  of  replevin  : 
though  this  flict  was  not  at  the  time  of  the  sale  stated  to  the  purchasers, 
or  to  the  plaintiff  when  he  purchased  of  Secomb,  Taylor,  &  Company. 
Had  these  250  barrels  of  pork  been  a  separate  parcel,  or  had  the  parties 
designated  them  by  any  visible  mark,  distinguishing  them  from  the 
residue  of  the  vendors'  stock  of  pork,  the  sale  would  clearly  have  been 
an  absolute  one,  and  the  property  would  at  once  have  passed  to  the 
purchaser.  There  was  nothing  required  to  liave  been  done  but  this 
separation  from  the  general  mass  of  like  kind,  to  have  placed  the  sale 
beyond  all  question  or  doubt  as  to  its  validity. 

The  cases  cited  by  the  plaintiff's  counsel  fully  establish  the  position, 
that  what  was  done  in  this  case  would  have  transferred  the  property  in 
the  pork,  if  the  sale  had  been  of  all  the  pork  in  the  cellar,  or  of  any 
entire  parcel  separated  from  the  residue,  or  if  the  250  barrels  had  some 
descriptive  mark  distinguishing  them  from  the  other  barrels  not  sold. 
The  difficulty  in  the  case  is,  in  maintaining  that  in  the  absence  of  each 
and  all  these  circumstances,  distinguishing  the  articles  sold,  the  particu- 
lar barrels  of  pork  selected  by  the  officer  from  the  larger  mass  when  he 
served  this  process,  were  the  property  of  the  plaintiff,  or  had  ever 
passed  to  him.     In  addition,  however,  to  the  numerous  cases  cited  to 
establish  the  general  principles  contended  for  on  the  part  of  the  plain- 
\  tiff,  and  Avhich  would  have  been  decisive,  if  it  had  been  a  sale  of  all  the 
pork  in  the  cellar,  or  a  particular  parcel,  or  certain  barrels  having  de- 
scriptive marks  which  would  enable  the  vendee  to  separate  his  own 
from  the  residue,  were  cited  several  more  immediately  bearing  upon 
the  present  case,  and  where  property  not  separable  has  been  held  to 
pass  to  the  vendee.     The  leading  case  relied  upon  is  that  of  Pleasants 
V.  Pendleton,  6  Rand.  473.    This  was  an  action  by  the  vendor  to  recover 
the  price  of  119  barrels  of  flour  sold  to  the  defendant.    No  other  objec- 
tion existed  to  the  validity  of  the  sale,  except  that  the  119  barrels  were 
a  parcel  of  123  barrels,  all  of  similar  kind,  in  the  same  warehouse. 
There  were  certain  brands  or  marks  on  the  entire  123  barrels.     The 
flour  was  destroyed  by  fire  while  on  storage,  and  the  vendee  refused  to 


SECT.  IV.]  SCUDDER   V.    WORSTER.  785 

pay  for  the  119,  upon  tlie  f^rouncl  that  tlie  sale  was  not  perfected  for 
want  of  separation  from  tlie  123  barrels.  The  court  refused  to  sustain 
the  defence,  and  gave  judgment  for  the  plaintiff.  In  reference  to  this 
case,  Grimke,  J.,  in  Woods  u.  McGee,  7  Ohio,  127,  says :  "  It  is  impos- 
sible to  divest  ourselves  of  the  impression  that  the  small  difference 
between  the  aggregate  mass  and  the  quantity  sold,  the  former  being 
123  barrels,  and  the  latter  119,  may  have  influenced  the  decision.  It 
was  a  hard  case,  and  hard  cases  make  shipwreck  of  pnnciples." 

Jackson  v.  Anderson,  4  Taunt.  24,  was  an  action  of  trover  to  recover 
for  the  conversion  of  1969  Spanish  dollars.  It  appeared  that  the 
amount  had  been  transmitted  to  a  consignee  for  the  use  of  the  plaintiff, 
but  they  were  in  a  parcel  of  84918,  all  of  which  came  into  the  hands 
of  the  defendant.  Among  other  points  raised  at  the  argument,  was 
this,  that  there  was  nothing  to  distinguish  the  619G9  from  the  entire 
mass ;  that  there  had  been  no  separation,  and  of  course  the  plaintiff 
had  no  property  in  any  particular  portion  of  the  money.  The  point,  it 
seems,  was  not  made  at  the  trial  before  the  jury,  but  suggested  by  the 
court  during  the  argument  before  the  full  court,  and  this  is  stated  by 
the  reporter ;  the  court  interrupted  the  counsel,  and  intimated  a  strong 
doubt,  as  there  was  nothing  to  distinguish  the  $1909  from  the  remain- 
ing contents  of  the  barrel,  whether  the  action  could  lie.  At  a  future 
day  the  court  gave  judgment  for  the  plaintiff.  The  objection  was  over- 
ruled upon  the  ground  that  the  defendant  had  disi)0sed  of  all  the  dol- 
lars, consequently  he  had  disposed  of  those  belonging  to  the  plaintiff. 

The  case  of  Gardner  v.  Dutch,  9  Mass.  427,  is  apparently  the  strong- 
est case  in  favor  of  the  plaintiff.  The  case  was  replevin  against  an 
officer  who  had  attached  goods  as  the  property  of  Wellman  &  Ropes. 
The  plaintiff  had  seventy-six  bags  of  coffee,  to  which  he  became  enti- 
tled as  owner,  upon  an  adjustment  of  accounts  of  a  voyage  he  had  per- 
formed for  Wellman  &  Ropes,  but  the  bags  belonging  to  the  plaintiff 
.  were  in  no  way  distinguished  by  marks,  or  separated  from  the  other 
coffee  of  Wellman  &  Ropes.  The  plaintiff  on  liis  arrival  at  Salem, 
from  his  voyage,  delivering  the  entire  coffee  to  Wellman  &  Ropes, 
taking  their  receipt  "  for  seventy-six  bags  of  coffee,  being  his  adventure 
on  board  schooner  Liberty,  and  which  we  hold  subject  to  his  order  at 
any  time  he  may  please  to  call  for  the  same."  The  point  taken  in  the 
case  was  that  the  plaintiff  had  not  the  sole  property,  but  only  an  undi- 
vided interest,  and  so  could  not  maintain  replevin.  The  court  ruled 
that  the  ]>laintiff  was  not  a  tenant  in  common,  but  might  have  taken 
the  number  of  bags  to  Avhich  he  was  entitled,  at  his  own  selection,  and 
might  maintain  his  action. 

This  case,  on  the  face  of  it,  seems  to  go  ftir  to  recognize  the  right  of 
one  having  a  definite  number  of  barrels  of  any  given  articles  mingled 
in  a  common  mass,  to  select  and  take,  to  the  number  he- is  entitled, 
although  no  previous  separation  had  taken  place.    It  is,  however,  to  be 


786  SCUDDER   V.   WORSTER.  [CHAP.  II. 

borne  iu  mind  in  reference  to  this  case,  that  it  did  not  arise  between 
vendor  and  vendee.  The  interest  in  the  seventy-six  bags  of  coffee  did 
not  originate  by  purchase  from  Welbtian  &  RojDes.  They  became 
the  specific  property  of  the  plaintiff  in  that  action  on  an  adjustment  of 
an  adventure,  the  whole  proceeds  of  which  were  in  his  hands;  and 
separated  with  the  possession,  only  when  he  took  their  accountable 
receipts  for  seventy-six  bags,  held  by  them  on  his  account.  It  did  not 
raise  the  question,  here  so  fully  discussed,  as  to  what  is  necessary  to 
constitute  a  delivery,  and  how  for  it  was  necessary  to  have  a  separation 
from  a  mass  of  articles,  to  constitute  a  transfer  of  title.  Perhaps  the 
circumstances  may  well  have  warranted  that  decision,  but  we  are  not 
satisfied  that  the  doctrine  of  it  can  be  properly  applied  to  a  case  where 
the  party  asserts  his  title,  claiming  only  as  a  purchaser  of  a  specific 
number  of  barrels,  there  having  been  no  possession  on  his  part,  and  no 
separation  of  the  same  from  a  larger  mass  of  articles  similar  iu  kind, 
and  no  descriptive  marks  to  designate  them. 

On  the  other  hand,  in  support  of  the  position  that  this  sale  was  never 
perfected  for  want  of  such  separation  of  the  particular  barrels  on  ac- 
count of  the  plaintiff,  or  some  designation- of  them  from  others  of  like 
kind,  there  will  be  found  a  strong  weight  of  authority ;  and  to  some  of 
the  most  prominent  cases  I  will  briefly  refer.  Thus,  in  the  case  of  Hutch- 
inson V.  Hunter,  7  Barr,  140,  which  was  an  action  of  assum2ysU  to  re- 
cover payment  for  100  barrels  of  molasses  sold  to  the  defendant,  the 
same  being  parcel  of  125  barrels,  and  the  whole  destroyed  by  fire  while 
on  storage,  and  before  separation  or  designation  of  any  particular  bar- 
rels, it  was  held  that  the  plaintiff  could  not  recover,  the  sale  never 
having  been  consummated.  Rogers,  J.,  says  :  "  The  fundamental  rule 
which  applies  to  this  case  is,  that  the  parties  must  be  agreed  as  to  the 
specific  goods  on  which  the  contract  is  to  attach  before  there  can  be  a 
bargain  and  sale.  The  goods  must  be  ascertained,  designated,  and 
separated  from  the  stock  or  quantity  with  which  they  are  mixed,  before 
the  property  can  pass."  He  considers  the  case  of  Pleasants  v.  Pendle- 
ton, 6  Rand.  475,  as  decided  on  erroneous  principles.  The  case  of 
Hutchinson  v.  Hunter  presented  a  case  of  a  sub-contract  or  sale  like 
the  present,  and  it  was  urged  that  this  differed  the  case  from  what  it 
might  otherwise  have  been,  as  respects  the  original  vendor.  But  the 
court  held  that  this  did  not  vary  the  case  in  the  matter  of  the  necessity 
of  a  separation  of  the  article  sold  from  the  greater  mass.  So  in  Golder 
V.  Ogden,  15  Penn.  St.  (3  Harris),  528,  where  a  contract  was  made  for 
the  sale  of  2000  pieces  of  wall  paper,  the  purchaser  giving  his  notes 
therefor  to  the  vendor,  and  taking  away  with  him  1000  pieces,  and  it 
was  agreed  that  the  other  1000  pieces  should  remain  until  called  for  by 
the  purchaser,  upon  a  question  of  property  in  the  remaining  lODO  pieces 
between  the  assignees  of  the  vendor  and  the  purchaser,  it  was  held  that 
these  1000  pieces  not  having  been  selected  by  the  buyer,  or  separated, 


SECT.  IV.]  SCDDDER  V.    WORSTER.  787 

or  set  apart  for  him,  but  remaining  mingled  with  other  paper  of  same 
description,  did  not  become  the  property  of  the  alleged  buyer,  as  against 
an  assignment  for  the  benefit  of  the  creditors  of  the  vendor.  The  prin- 
ciple  advanced  in  that  case  seems  to  be  the  sound  one  :  "  Tliat  the  prop- 
erty cannot  pass  until  there  be  a  specific  identification  in  some  way  of 
the  particular  goods  which  the  party  bargains  for.  The  law  knows  no 
such  thing  as  a  floating  right  of  property,  which  may  attach  itself  either 
to  one  parcel  or  the  other,  as  may  be  found  convenient  afterwards." 
The  case  of  Waldo  v.  Belcher,  11  Iredell,  609,  was  the  case  of  a  sale  of 
corn  by  a  vendor,  having  in  his  store  3100  bushels  of  corn,  and  selling 
2800  bushels  of  the  same,  but  the  2800  bushels  were  never  separated 
from  the  3100,  and  the  whole  was,  after  the  sale,  destroyed  by  fire  ;  and 
it  was  held  that  the  property  in  the  2800  bushels  did  not  pass  to  the 
vendee,  though  it  would  have  been  otherwise  had  it  been  a  sale  of  all 
the  corn  in  the  crib.  The  ground  of  the  decision  was,  that  there  had 
been  no  separation,  that  it  could  not  be  ascertained  which  corn  was  the 
property  of  the  vendee  until  it  was  separated.  The  purchaser  could 
not  bring  detinue,  because  he  could  not  describe  the  particular  thing. 
This  would  be  equally  so  as  to  replevin.  The  case  of  Merrill  v.  Ilun- 
uewell,  13  Pick.  213,  bears  strongly  upon  the  question  before  us.  It 
was  a  sale  of  nine  arches  of  bricks  in  a  kiln  containing  a  larger  number, 
but  not  separated  from  the  residue,  or  specifically  designated.  After 
the  vendor  had,  by  other  sales,  reduced  the  quantity  on  hand  to  less 
than  nine  arches.  Upon  a  question  of  property  between  the  vendee  and 
an  attaching  creditor  of  the  vendor,  it  was  held  the  purchaser  took  no 
property  in  the  bricks,  the  sale  being  of  part  of  a  large  mass,  not  deliv- 
ered nor  specifically  designated. 

Blackburn,  in  his  Treatise  on  Sales,  p  122,  presents  the  law  on  this 
subject  thus :  "  Until  the  parties  are  agreed  as  to  the  specific  identical 
goods,  the  contract  can  be  no  more  than  a  contract  to  supply  goods 
answering  a  particular  description,  and  since  the  vendor  would  fulfil  his 
part  of  the  contract  by  furnishing  any  parcel  of  goods  answering  that 
description,  it  is  clear  there  can  be  no  intention  to  transfer  the  property 
in  any  particular  lot  of  goods  more  than  another,  until  it  is  ascertained 
which  are  the  very  goods  sold." 

Examining  the  facts  in  the  case  before  us,  and  applying  the  princi- 
ples of  the  cases  last  cited,  and  the  approved  elementary  doctrine  as 
to  what  is  necessary  to  constitute  a  sale  of  property  not  separated 
from  the  mass  of  like  kind,  or  designated  by  any  descriptive  marks, 
the  court  are  clearly  of  opinion  that  the  property  in  the  specified  150 
barrels  of  pork  taken  by  the  plaintifi",  under  his  writ  of  replevin,  had 
never  passed  from  the  vendors,  and  therefore  this  action  cannot  be 
maintained. 

In  the  argument  of  this  case  on  the  part  of  the  plaintiff,  the  case 
was  put  as  a  case  of  intermixture  of  goods,  and  it  was  argued  that 


788  GUSHING   V.    BREED.  [CHAP.  II. 

such  intermixture  having  taken  place,  the  plaintiff  might,  for  that 
cause,  hold  the  property  as  his.  But,  in  fact,  there  was  no  such  case 
of  intermixture.     The  entire  property  was  always  in  the  defendants. 

It  Avas  also  urged  that  the  defendants  were  estopped  to  deny  that 
the  150  barrels  of  pork  were  the  property  of  the  plaintiff,  having  given 
a  bill  of  sale  of  the  same,  and  under  the  circumstances  stated  in  the 
statement  of  facts.  Had  this  been  an  action  to  recover  damages  for 
the  value  of  150  barrels  of  pork,  this  position  might  be  tenable,  and 
the  defendants  estopped  to  deny  the  property  of  the  plaintiff  in  such 
150  barrels.  This  would  be  so  if  an  action  had  been  brought  against 
the  defendants  as  bailees  of  150  barrels  of  pork,  and  for  not  delivering 
the  same. 

But  the  distinction  between  the  case  of  an  action  for  damages  for 
not  delivering  150  barrels,  and  that  of  replevin,  commanding  the 
officer  to  take  from  the  possession  of  the  defendants  150  barrels,  and 
deliver  the  same  to  plaintiff  as  his  property,  is  an  obvious  one.  To 
sustain  the  former,  it  is  only  necessary  to  show  a  right  to  150  barrels 
generally,  and  not  any  specific  150  barrels ;  but  to  maintain  replevin, 
the  plaintiff  must  be  the  owner  of  some  specific  150  barrels.  If 
bought,  they  must  be  specifically  set  apart,  or  designated  in  some  way 
as  his,  and  not  intermingled  with  a  larger  mass  of  like  kind  owned  by 
the  vendor.  ^  Judgment  for  the  defendants} 


/.. 


,V^    lyNATHAN    GUSHING    and    Others   v.  ASA   A.    BREED    and 

Another. 

ME  Judicial  Court  of  Massachusetts,  January  Term,  1867. 

[Reported  in  14  Allen,  376.] 

Conteact  to  recover  the  price  of  500  bushels  of  oats  sold  and  de- 
livered.    The  answer  admitted  the  sale  and  delivery  of  105  bushels, 
and  offered  judgment  for  the  price  thereof;  and  denied  the  residue. 
At  the  trial  in  the  Superior  Court,  before  Russell,  J.,  without  a  jury, 
\  i  the  following  facts  appeared.     The  plaintiffs  were  owners  of  a  cargo  of 
I  \^  black  oats,  received  by  the  schooner  Seven  Brothers,  which  on  being 
\    Tweio-hed  was  found  to  contain  6695  bushels,  and  was  elevated  and 
^  stored  in  the  Merchants'  Grain  Elevator,  a  grain  warehouse  in  Boston, 
•^  not  belonging  to  either  the  plaintiffs  or  defendants,  but  to  persons 
N  whose  business  it  was  to  receive,  elevate,  store,  weigh,  and  deliver 
^  J  grain.     The  cargo  was  put  into  two  bins,  and  the  plaintiffs  thereafter 


\i       V J      1  See  Weld  v.  Cutler,  ^ray,  195. 


^  k  H:'  '-^ 


SECT.  TV.]  GUSHING    V.    BREED.  789 

agreed  to  sell  to  the  defendants  500  bushels  thereof,  at  ninety-one 
cents  a  bushel,  and  accordingly  delivered  to  them  an  order  ujion  the 
proprietors  of  the  elevator,  dated  June  23,  1SG4,  the  body  of  wliich 
was  as  follows:  "Please  deliver  Breed  &  Co.,  or  order,  500  bushels 
black  oats  from  cargo  per  schooner  Seven  Brothers?,  storage  com- 
mencing, to  the  person  or  persons  in  whose  favor  this  order  is  drawn, 
June  29,  186-4."  This  order  Avas  presented  on  June  25,  1804,  to  the 
proprietors  of  the  elevator,  who  accepted  the  same  in  the  usual  manner 
by  retaining  the  order  and  entering  it  in  their  books,  ami  on  the  same 
day  delivered  to  the  defendants  105  bushels  of  the  oats.  Before  July 
5,  1SG4,  the  whole  cargo  had  been  sold  and  delivered  and  removed 
from  the  elevator  except  1274  bushels;  and  this  amount,  which  re- 
mained in  the  elevator,  included  o05  bushels  of  the  quantity  agreed  to 
be  sold  to  the  defendants.  On  the  5th  of  July  a  fire  occurred,  without 
the  fault  of  either  of  the  parties  to  this  action,  and  rendered  the  oats 
which  remained  in  the  elevator  nearly  worthless.  The  ]irice  for  weigh- 
ing and  elevating  these  oats  was  charged  to  the  plaintiffs. 

It  was  the  general  usage  of  dealers  of  grain  in  Boston  to  place 
cargoes  and  other  large  quantities  of  grain  in  elevators,  where  the 
same  remained  until  sold,  either  in  entire  lots  or  in  smaller  quantities, 
by  orders  given  by  the  vendor  to  the  purchaser,  and  after  such  sale  it 
was  removed  fi-om  the  elevator  or  kept  therein  at  the  election  of  thfr 
purchaser.  After  the  acceptance  of  such  order  by  the  proprietors  of 
the  elevator,  the  grain  covered  thereby  was  treated  by  them  in  all 
respects  as  the  property  of  the  purchaser;  the  vendor  had  no  further 
control  over  it,  and  did  no  act  in  reference  to  separating  it  from  the 
rest,  or  removing  it  from  the  elevator;  but  the  proprietoi"S  held  the 
same  subject  to  the  order  of  the  purchaser,  obeyed  his  directions  in  all 
respects  in  reference  thereto,  received  orders  from  him  in  the  same 
manner  as  from  the  original  vendor,  or  weighed  it  out  to  him  in  such 
quantities  and  at  such  times  as  he  required,  they  guaranteeing  to 
deliver  out  the  full  number  of  bushels  weighed  into  the  elevator. 
They  made  no  charge  to  the  purchaser  except  for  storage.  Different 
cargoes  of  the  same  quality,  belonging  to  different  owners,  were  some- 
times mingled  in  the  bins.  Parcels  of  grain,  bought  as  above,  were 
paid  for  according  to  contract,  and  without  regai-d  to  whether  or  not 
they  had  been  separated  and  removed  from  the  elevator,  and  all 
damage  to  grain  so  sold,  from  internal  causes  occurring  after  the  de- 
livery of  the  order,  was  borne  by  the  inirchaser.  All  the  above  usages 
were  known  to  the  defendants;  but  they  objected  to  the  evidence  to 
prove  the  same. 

Upon  these  facts,  the  judge  ruled  that  there  was  no  such  change  of 
title  to  the  grain,  except  as  to  the  105  bushels  actually  removed  by  the 
defendants  from  the  elevator,  as  to  make  the  defendants  liable  to  this 
action ;  and  found  that  the  plaintiffs  were  only  entitled  to  recover  tho 

VOL.   I,  51 


790  GUSHING    V.   BREED.  [CHAP.  II. 

price  agreed  for  the  105  bushels,  with  interest.     The  plaintiffs  alleged 
exceptions. 

W.  Gaston  and  W.  A.  Field,  for  the  plaintiffs.  This  is  the  case  of 
a  sale  of  an  undivided  part  of  a  cargo  in  the  possession  of  third  per- 
sons wlio  had  control  of  it,  and  whom  the  purchasers  made  their 
agents  for  storing  and  delivering  the  quantity  bought,  as  they  might 
dtrect.  The  purchasers  could  have  had  a  separation  when  they  desired 
it,  and  the  portion  sold  was  left  unseparated  solely  in  accordance  with 
their  wishes.  Regarded  as  a  sale  of  an  undivided  part,  the  transaction 
was  complete.  The  case  of  Weld  v.  Cutler,  2  Gray,  196,  establishes 
that  separation  is  not  always  necessary  to  complete  a  sale.  Possession 
of  the  whole  by  the  purchaser,  with  the  right  to  separate  his  portion, 
is  all  that  is  necessary.  In  the  present  case,  the  warehousemen  had 
possession  of  the  whole ;  and  their  possession  was  coupled  with  an 
interest,  for  they  had  accepted  delivery  orders  for  parcels  of  the  cargo. 
The  plaintiffs  had  lost  all  control  over  the  quantity  covered  by  the 
orders  which  they  had  drawn.  The  warehousemen  charged  storage  to 
the  defendants ;  and  after  the  date  when  by  the  terms  of  the  order 
they  began  to  charge  storage  to  the  defendants,  certainly  they  were 
the  agents  of  the  defendants,  in  possession,  and  with  the  right  of  pos- 
session over  the  whole,  so  far  as  was  necessary  to  enable  them  to  de- 
liver what  was  covered  by  the  orders  which  they  had  accepted. 

It  is  no  test  of  a  completed  sale,  as  between  vendor  and  purchaser, 
that  the  vendor's  creditors  may  attach  the  property,  or  that  a  right  of 
stoppage  in  transitu  may  exist.  Nor  is  it  a  test,  that  the  purchaser 
could  not  maintain  replevin.  Of  course  replevin  would  not  lie  with- 
out an  actual  separation.  Scudder  v.  Worster,  11  Cush.  573  ;  Ropes  v. 
Lane,  9  Allen,  502.  And  in  those  cases  no  such  usages  of  trade  ap- 
peared as  in  the  present  case.  The  English  cases  also  are  distinguish- 
able from  this.  In  most  of  them  no  usage  of  trade  was  proved,  and  the 
goods  remained  in  the  actual  possession  of  the  vendors,  or  something 
remained  to  be  done  by  them.  In  Maine  and  New  York,  the  decisions 
o-o  further  than  is  necessary  for  this  case.  Waldron  v.  Chase,  37  Maine, 
414;  Kiniberly  v.  Patchin,  19  N.  Y.  330.  The  customs  and  usages  of 
trade  here  proved  were  reasonable.     Clark  v.  Baker,  11  Met.  186. 

C.  B.  Goodrich  and  I.  J.  Austin,  for  the  defendants.  Weighing  and 
separation  of  the  quantity  of  oats  sold  were  acts  which  the  vendors  were 
bound  to  perform.  They  had  a  right  to  select  from  either  of  the  two 
■bins.  Any  five  hundred  bushels,  which  constituted  a  part  of  the  cargo 
>of  the  Seven  Brothers,  wherever  stored,  would  have  answered  the  con- 
tract. Riddle  V.  Varnum,  20  Pick.  283 ;  Scudder  v.  Worster,  11  Cush. 
.573  ;  Weld  v.  Cutler,  2  Gray,  196 ;  Claflin  v.  Boston  and  Lowell  Railroad, 
7  Allen,  344;  Ropes  v.  Lane,  9  Allen,  502;  S.  C.  11  Allen,  591 ;  Han- 
son V.  Meyer,  6  East,  614;  White  v.  Wilks,  5  Taunt.  176;  Shepley  v. 
Davis,  ib.  617 ;  Busk  v.  Davis,  2  M.  &  S.  397 ;  Aldridge  v.  Johnson,  7 


SECT.  IV.]  GUSHING    ?'.    BREED.     /  /  791       / 

El.  &  Bl.  885.  The  order  of  the  plaintiffs  did  not  pass  the  title  to  any 
specific  five  hundred  l)us]iels  of  oats.  It  iinjilied  a  request  to  the  ware- 
liousemen  to  se])arate,  weigh,  and  deliver  that  quantity.  These  acts 
were  to  be  performed  by  the  agents  of  tlie  vendors.  But  the  defend- 
ants had  no  right  to  enter  the  warehouse,  and  separate  their  jjroperty. 

The  evidence  of  usage  was  inadmissible.  The  effect  and  object  of  it 
were  to  control  and  change  the  terms  of  the  contract  between  the 
paities,  by  showing  the  opinion  of  certain  warehousemen  and  persons 
Avho  deposit  grain  for  storage,  as  to  the  legal  effect  of  a  contract  to  sell, 
and  of  a  Avritten  order  by  vendors  upon  their  agents.  Although  the 
vendors  after  the  delivery  of  such  orders  might  not  interfere  personally, 
yet  their  agents  would  separate,  Aveigh,  and  deliver  the  grain  at  their 
cost,  and  the  A'endors  are  responsible  for  the  acts  of  their  agents  in 
doing  so,  and  might  countermand  the  order  and  the  se])aration,  weigh- 
ing, and  delivery.  The  supposed  usage  is  inconsistent  Avith  the  contract 
made  by  the  parties,  and  with  the  legal  rights  and  duties  resulting  there- 
from. It  is  unreasonable,  because  under  it  the  property  of  diflerent 
owners  may  be  mingled,  and  a  purchaser  from  one  i)erson  may  be  com- 
pelled to  receive  property  owned  by  another.  So  if,  by  reason  of  mis- 
takes in  Aveig-hing  or  of  shrinking,  the  quantity  is  insufficient  to  answer 
all  the  orders,  the  purchaser  may  be  compelled  to  receive  the  personal 
responsibility  of  the  Avarehouseman.  The  suj)posed  usage  is  incon- 
sistent Avith  the  policy  of  the  law  regulating  public  warehouses,  and  is 
calculated  to  create  confusion  and  uncertainty  in  mercantile  contracts. 
St.  18G0,  c.  206;  Dickinson  v.  Gay,  7  Allen,  29;  Dodd  v.  Farlow,  11 
Allen,  426. 

Chapmax,  J.  The  use  of  elevators  for  the  storage  of  grain  has  in- 
troduced some  ncAV  methods  of  dealing,  but  the  rights  of  parties  Avho 
ado2)t  these  methods  must  be  determined  by  the  princij^les  of  the  com- 
mon laAV.  The  proprietors  of  the  elevator  are  the  agents  of  the  various 
parties  for  Avhom  they  act.  When  several  parties  have  ston-d  various 
parcels  of  grain  in  the  elevator,  and  it  is  put  into  one  iu.i>.-«,  .uruiding 
to  a  usage*To"wTi7ch  Ihey  iifust'^  aie 

tenants  in  coninuju  of  tlie  grain.  Each  is  entitled  to  such  a  2>roj)ortion  • 
as  tlic  ([uantity  placed  there  by  him  bears  tO  the  Avhole  mas!=!'.  When 
one  uf  them  sells  a  certain  number  of  bushels,  it  is  a  sale  of  projierty 
OAvned  by  him  in  common.  It  is  not  necessary  to  take  it  aAvay  in  order 
to  complete  the  purchase.  If  the  A'endor  gives  an  order  on  the  agents 
to  clelTver  Ttfb  tlie  vendee,  and  the  agents  accept  the  order,  and  agree 
Avith  the  vendee  to  store  the  property  for  him,  and  give  \\\\\\  a  receij)t 
therefor,  the  delivery  is  thereby  comjilete,  and  the  proi)erty  belongs  to 
the  A'endee.  The  vendor  has  nothing  more  to  do  to  complete  the  sale, 
nor  has  he  any  further  dominion  over  the  property.  The  agent  holds 
it  as  the  property  of  the  vendee,  OAvned  by  him  in  common  Avith  the 
other  grain  in  the  elevator.     It  is  elementary  law  that  a  tenant  in  com- 


792  MUCKLOW   V.    MANGLES.  [CHAP.  II. 

mon  of  personal  property  in  the  hands  of  an  agent  may  sell  the  whole 
or  any  part  of  his  interest  in  the  property  by  the  method  above  stated, 
or  by  any  other  method  equivalent  to  it.  Actual  separation  aadtuking., 
away  are  not  necessary  to  comjplete  the  sale.  As  to  the  property  sold, 
the  agent  acts  for  a  new  principal,  and  holds  his  property  for  him.  The 
law  is  the  same,  whether  the  proprietors  are  numerous  or  the  vendor 
and  vendee  are  owners  of  the  whole.  If  the  vendee  resells  the  whole 
or  a  part  of  what  he  has  purchased,  his  vendee  may,  by  the  same  course 
of  dealing,  become  also  a  tenant  in  common  as  to  the  part  which  he  has 
bought. 

This  is  not  like  the  class  of  sales  where  the  vendor  retains  the  pos- 
session, because  there  is  something  further  for  him  to  do,  such  as 
measuring,  or  weighing,  or  marking,  as  in  Scudder  v.  Worster,  11 
Cush.  573 ;  nor  like  the  case  of  Weld  v.  Cutler,  2  Gray,  195,  where  the 
whole  of  a  pile  of  coal  was  delivered  to  the  vendee  in  order  that  he 
might  make  the  separation.  But  the  property  is  in  the  hands  of  an 
agent ;  and  the  same  person  who  was  the  agent  of  the  vendor  to  keep, 
becomes  the  agent  of  the  vendee  to  keep ;  and  the  possession  of  the 
agent  becomes  the  possession  of  the  principal.  Hatch  v.  Bayley,  12 
Cush.  27,  and  cases  cited.  The  tenancy  in  common  results  from  the 
method  of  storage  which  has  been  agi'eed  upon,  and  supersedes  the 
necessity  of  measuring,  weighing,  or  separating  the  part  sold. 
„. ^o  delivery  is  necessary  to  a  tenant  in  common.  Beaumont  v. 
Crane,  14  Mass.  400. 

Upon  these  j^rinciples,  the  plaintiffs  are  entitled  to  recover  the 
amount  due  them  for  the  property  thus  sold  and  delivered  to  the  de- 
fendants. The  damage  occasioned  to  this  property  by  the  fire  must  be 
borne  by  the /defendants,  as  owners  of  the  jH-operty. 

Jjc     aL/'  JExce2)tions  sustained. 

"^   ^^^    ^  SECTION  V. 

^  yfl'    I    \^      Specification  of  the  goods  hy  subsequent  a/ppropriation. 

K     y^  MUCKLOW  AND  Others,  Assignees  of  Roylaxd,  v.  MANGLES. 
^  In  The  Commox  Pleas,  June  18,  1808. 

[Reported  in  1  Taunton,  318.] 


Up. 


Trover  by  the  assignees  of  a  bankrupt  for  a  barge  and  other  effects, 
pon  the  trial  before  Mansfield,  C.  J.,  at  Westminster,  at  the  sittings 


■^ 


>^ 


^( 


SECT,  v.]  MUCKLOW   V.    MANGLES.  793 

in  this  term,  it  was  proved  that  Royhind,  who  was  a  bargc-buihler,  liad 
undertaken  to  buihl  tlie  barge  in  question  for  Pocock.  Before  the 
work  was  begun,  Pocock  advanced  to  Ko}dand  some  money  on  account, 
and  as  it  proceeded,  he  paid  him  more,  to  the  amount  of  £190  in  all, 
being  the  whole  value  of  the  barge.  When  it  was  nearly  finished, 
Pocock's  name  was  painted  on  the  stei-n.  Two  days  after  the  comple- 
tion of  tiie  work,  and  before  a  commission  of  bankrupt  had  issued,  the 
defendant,  who  was  an  officer  of  the  sherift'  of  Middlesex,  under  an 
execution  against  Royland,  took  this  barge,  which  had  not  then  been 
delivered  to  Pocock,  but  gave  it  up  to  him  under  an  indemnity.  The 
jury  found  a  verdict  for  the  plaintiffs. 

^est,  Serjt.,  now  moved  that  the  sum  of  £190,  the  value  of  the 
barge,  might  be  deducted  from  the  amount  of  the  verdict,  inasmuch  as 
the  property  had  absolutely  vested  in  Pocock,  who  had  paid  for  the 
barge,  and  could,  he  said,  have  recovered  it  in  trover  against  Royland ; 
and  the  assignees  could  not  be  in  a  better  condition  than  Royland  him- 
self. This  was  not  such  a  permissive  possession  in  the  bankrupt  as  is 
described  in  the  Stat.  21  Jac.  1,  c.  19,  for  the  bankrupt  had  not  had 
time  to  deliver  it  after  it  was  finished.  Ex  ixirte  Flyn  &  Field,  1  Atk. 
185.  Flyn  &  Field  bought  of  Matthews  and  paid  for  two-thirds  of 
500  barrels  of  tar,  the  whole  to  be  sold  by  them  for  account  as  follows : 
two-thirds  their  account,  and  one-third  Matthews'  account ;  JNIatthews' 
to  bear  charges  of  cartage  and  porterage  in  sending  off.  Matthews 
becoming  a  bankrupt,  the  chancellor,  on  petition,  held,  that  Flyn  & 
Field  were  entitled  to  two-thirds  of  the  tar,  for  that  this  was  only  a 
temporary  custody,  till  the  petitioners  could  conveniently  ship  it  for 
Ireland,  and  it  could  not  with  propriety  be  said  that  the  tar  was  in  the 
"  possession,  order,  and  disposition  "  of  the  bankrupt. 

Mansfield,  C.  J.  The  only  efiect  of  the  payment  is,  that  the  bank- 
rupt was  under  a  contract  to  finish  the  barge ;  that  is  quite  a  differ- 
ent thing  from  a  contract  of  sale,  and  until  the  barge  was  fiiuslied  we- 
cannot  say  that  "it  was  so 'lar  ^Pocock's  property  that  he  could  have 
taken  it'away.  It  was  not  finished  at  the  time  when  Royland  com- 
niittecl  tlie  act  of  bankruptcy ;  it  was  finished  only  two  days  before  the 
execution.  In  the  case  cited  it  Avas  necessarily  held  that  the  tar  was 
not  in  the  possession  of  the  bankrupt ;  otherwise,  in  every  case  of  ten- 
ancy in  common  with  a  bankrupt,  the  act  of  bankruptcy  would  vest 
the  entire  property  of  the  chattel  in  his  assignees. 

Heath,  J.  This  is  the  species  of  contract  which  in  the  civil  law  is 
described  by  the  term,  JDo  ut  facias.  It  comes  within  the  cases  which 
have  been  held  to  be  executory  contracts,  and  as  such  not  Avithin  the 
statute  of  frauds,  as  contracts  for  the  sale  of  goods.  A  tradesman  of^en 
finishes  goods,  which  he  is  making  in  pursuance  of  an  order  given  by 
one  person,  and  sells  them  to  another.  If  the  first  customer  has  other 
goods  made  for  him  within  the  stipulated  time,  he  has  no  right  to  com- 


794  WOODS   V.    RUSSELL.  [CHAP.  II. 

plain ;  he  could  not  bring  trover  against  the  purchaser  for  the  goods  so 
sold.  The  painting  of  the  name  on  the  stern  in  this  case  makes  no 
difference.  If  the  thing  be  in  existence  at  the  time  of  the  order,  the 
property  of  it  passes  by  the  contract,  but  not  so  where  the  subject  is  to 
be  made. 

Lawrence,  J.     I  am  of  the  same  opinion.     No  property  vests  till 
the  thing  is  finished  and  delivered.  The  court  refused  the  rule} 


\ 


DS  AND  Another,  Assignees  of  Alexander  Paton,  a  Bank- 
rupt, V.  RUSSELL. 

In  the  King's  Bench,  June  26,  1822. 

[Reported  in  5  Barnewall  Sj-  Alderson,  942.] 


/ 


This  case  was  tried  before  Bayley,  J.,  at  the  summer  assizes,  1820, 
and  came  on  for  argument  in  the  course  of  Easter  term,  upon  a  special 
case,  which  it  is  unnecessary  to  set  out,  as  the  focts  are  fully  stated  in 
the  judgment  delivered  by  the  court.     The  case  was  argued  by 

Zittledale,  for  the  plaintiffs.  The  property  in  the  ship,  rudder,  and 
cordage  continued  in  Paton  at  the  time  when  he  committed  the  act  of 
bankruptcy,  the  ship  not  being  then  completed.  The  case  of  Mucklow 
V.  Mangles  -  is  an  authority  expressly  in  point.  There  the  bankrupt,  a 
barge-builder,  had  undertaken  to  build  a  barge  for  Pocock,  and  the 
latter  had  paid  the  Avhole  value  in  advance,  and  his  name  was  actually 
painted  on  the  stern  of  the  vessel  after  the  completion  of  the  Avork  ; 
but  before  delivery,  and  before  any  commission  of  bankrupt  had 
issued  against  the  barge-builder,  the  barge  was  seized  in  execution  for 
a  debt  of  the  bankrupt.  It  was  held,  that  no  property  in  the  barge 
passed  to  Pocock  until  its  completion  and  delivery,  and  consequently 
that  the  assignees  were  entitled  to  recover  the  value.  Here  the  bank- 
rupt  was  only  under  a  contract  to  deliver  the  ship,  and  although  the 
stipulated  time  for  building  had  actually  elapsed,  yet  the  vessel  was 
not  completed  and  launched  until  after  the  act  of  bankruptcy.  The 
certificate  under  26  G.  3,  c.  60,  §  12,  clearly  is  not  to  be  given  till  the 
ship  is  completed,  and  until  that  time,  therefore,  no  property  passes  to 
the  vendee.  Groves  v.  Buck,^  ToAvers  v.  Osborne.*  But  at  all  events, 
the  case  falls  within  the  statute  of  James,  for  the  ship  was  in  the  hands 
of  the  bankrupt  as  the  reputed  owner.  Hay  v.  Fairbairn,^  Robinson  v. 
M'Doimell.? 

fx     \^  Doubted  in  Carruthers  v.  Payne,  5  Bing.  270.  —  Ed. 
^     K^  1  Taunt.  318.  3  3  M.  &  S.  178. 

\^  1  Str.  506.  \  \V.      5  2  B.  &  A.  193. 

Je  2  B.  &  A.  134 


SECT,  v.]  WOODS   V.    RUSSELL.  795 

Ilolf,  contra.  Tliore  are  two  questions  in  this  case :  first,  wliether 
the  |)roi)erty  in  the  ship,  rudder,  and  cordat^e  ever  passed  to  tlie  de- 
fendant; and,  secondly,  assuming  that  it  did,  wliether  it  continueil  in 
the  possession  of  the  bankrupt  at  tlie  time  of  the  act  of  bankruptcy, 
as  the  reputed  owner,  with  the  consent  of  the  true  owner,  within  the 
statute  of  James.  Here  the  pro])erty  passed  to  tlie  defendant  under 
the  contract,  for  there  was  a  delivery  to  him  before  the  3Uth  June. 
The  vessel  was  clearly  completed  when  she  was  capable  of  being  sur- 
veyed and  measured.  The  officers  of  the  customs  had  taken  the  usual 
bond  from  the  master  previously  to  the  bankruptcy;  the  builder,  too, 
on  the  2Gth  June,  had  given  the  defendant  the  certificate  required  by 
the  '2Gth  G.  3,  c.  GO,  §  20,  and  from  that  lime  he  must  be  taken  to  have 
consented  that  the  defendant  should  have  the  possession.  Secondly, 
assuming  the  property  to  have  passed  to  the  defendant,  it  did  not  con- 
tinue, with  his  consent,  in  the  possession  of  the  bankrupt  as  reputed 
owner.  That  is  a  question  of  fact,  which  ought  to  have  been  found. 
MuUer  v.  Moss,^  and  Oliver  v.  Bartlctt.-  Besides,  the  circumstance  of 
the  vessel's  having  been  registered  in  the  name  of  the  defendant,  and  of 
his  having  advertised  her  for  freight,  aftbrd  the  strongest  evidence  that 
he,  and  not  the  bankrui)t,  was  the  reputed  owner  of  the  ship. 

Cur.  adv.  vult. 

Abbott,  C.  J.,  now  delivered  the  judgment  of  the  court. 

This  was  an  action  of  trover  for  a  ship,  rudder,  and  cordage,  by  the 
assignees  of  Alexander  Paton,  a  bankrui)t,  and  the  facts  were  shortly 
as  follows:  Paton  was  a  ship-builder,  and  in  October,  1818,  he  en- 
tered into  a  written  contract  with  the  defendant  to  build  and  comiilete 
a  ship  for  the  defendant,  and  finish  and  launch  her  in  April,  1819 ;  and 
the  defendant  was  to  pay  fur  the  ship  by  four  instalments  of  £750 
each  :  the  first  when  the  keel  was  laid;  the  second  when  they  were  at 
the  light  plank;  and  the  third  and  fourth  when  the  sliij)  was  launched. 
The  payments  were  to  be  made  by  bills  at  two,  four,  six,  and  eight 
months.  The  first  and  second  instalments  were  duly  paid  in  March, 
1819  ;  the  defendant  appointed  a  master,  who,  from  that  time,  su])erin- 
tended  the  building.  In  May,  1819,  the  defendant  advertised  the  ship 
for  charter,  and  on  the  IGth  of  June  chartered  her,  with  Paton's  privity, 
for  a  voyage  from  Newcastle  to  Newfoundland.  Before  the  2Gtli  of 
June  the  ship  was  measured  and  surveyed,  with  Paton's  privity,  with  the 
intent  that  the  defendant  might  get  her  registered  in  his  name.  On 
the  19th  June  the  master  entered  into  the  usual  bond  for  delivering  up 
the  register  ;  on  the  25th  l*aton  signed  the  usual  certificate  of  her  build, 
&c.,  and  on  the  26th  the  ship  was  registered  in  the  defendant's  name. 
On  that  day  the  defendant  paid  Paton  the  third  instalment.     Paton's 

1  1  M.  &  S.  338.  2  3  B.  Moore,  597. 


796  WOODS   V.   EUSSELL.  [CHAP.  II. 

certificate  described  the  ship  as  launched,  but  that  was  not  the  case, 
and  Paton's  people  continued  working  upon  her,  and  using  his  timber 
and  materials  till  the  3d  of  July.     One  of  the  master's  apprentices  was 
employed  on  board  by  his  directions  from  the  early  part  of  June,  and  on 
the  30th  the  master  ordered  him  to  sleep  on  board ;  but  on  that  same 
day  Paton  committed  an  act  of  bankruptcy,  iipon  which  a  commission 
afterwards  issued.    On  the  2d  of  July  the  defendant  and  a  crew  he  had 
hired  took  possession  of  the  ship  ;  and  his  servants,  by  his  direction,  took 
from  Paton's  yard  and  warehouse  a  rudder  and  cordage,  which  Paton 
had  bought  for  the  ship.     On  the  4th  of  July  the  ship  was  launched. 
The  fourth  instalment  was  never  paid.     The  ship  was  incomplete  when 
the  act  of  bankruptcy  was  committed,  andTthe  expense  of  launching  her 
was  borne  by  the  defendant.     Upon  these  facts,  the  questions  proposed 
to  the  consideration  of  the  court  were,  whether  the  plaintiffs  were  en- 
f    titled  to  recover  the  value  of  the  ship,  in  which  case  the  value,  subject 
[     to  a  deduction,  w^as  to  be  taken  at  £3000  ;  or,  if  not,  whether  they  were 
I     entitled  to  recover  the  value  of  the  rudder  anTl  cordage ;  and,  should 
f    the  coiu't  be  of  opinion  that  they  were  entitled  to  neither,  a  nonsuit 
f     was  to  be  entered ;  and  upon  these  points  alone  the  case  was  argued 
before  the  court.     It  has  occun-ed,  however,  to  the  court,  that  a  third' 
question  arises  upon  the  facts,  Avhich  neither  party  could  have  intended 
to  exclude,  which  is  this :  whether,  if  the  plaintiffs  are  not  entitled  to 
recover  the  whole  value  of  the  ship,  they  may  not  be  entitled  to  re- 
cover to  the  extent  of  so  much  of  the  fourth  instalment  as,  if  the  de- 
fendant has  the  ship,  he  ought  to  pay.     And,  upon  the  first  and  second 
questions,  our  opinion  is  in  favor  of  the  defendant ;  upon  the  last  against 
him.     This  ship  is  built  u]ion  a  special  contract,  and  it  is  part  of  the 
terms  of  the  contract,  that  given  portions  of  the  price  shall  be  paid  ac- 
cording to  the  progress  of  the  work ;  part  when  the  keel  is  laid,  part 
when  they  are  at  the  light  plank.     The,.paynient  of  these  instalments 
appears  to  us  to  appropriate  specifically  to  the  defenciant  the  very  ship 
^Si'm  pi'ogi'Gss,  and  to  vest  in  the  defendant  a  property  in  tTiatsHip,  and 
that,  as  between  him  and  the  builder,  he  is  entitled  to  insist  upon  the 
completion  of  that  very  ship,  and  that  the  builder  is  not  entitled  to  re- 
quire him  to  accept  any  other.     But  this  case  does  not  depend  merely 
upon  the  payment  of  the  instalments  ;  so  that  we  are  not  called  upon 
to  decide  how  far  that  payment  vests  the  property  in  the  defendant, 
because  here  Paton  signed  the  certificate  to  enable  the  defendant  to 
have  the  ship  registered  in  his  (the  defendant's)  name,  and  by  that  act 
consented,  as  it  seems  to  us,  that  the  general  property  in  the  ship  should 
be  considered  from  that  time  as  being  in  the  defendant.     The  defend- 
ant had,  at  that  time,  paid  half  what  the  ship,  when  complete,  would  be 
worth.     Paton  could  not  be  injured  by  having  the  general  property  in 
the  ship  considered  as  vested  in  the  defendant,  because  he  would  still 
have  a  lien  upon  the  possession  for  the  residue  of  the  price ;  and  we 


SECT,  v.]  WOODS   r'.    RUSSELL.  797 

tliiiik  the  lecal  effect  of  signing  the  certificate,  fur  tlie  purpose  of  hav- 
ing the  shij)  registered  was,  from  the  time  the  registry  was  complete,  to 
vest  the  general  property  in  the  defendant.     In  order  to  register  the 
ship  in  the  defendant's  name,  an  oatli  would  be  requisite  that  tlie  de- 
fendant was  the  owner ;  and  Avhen  Paton  concurred  in  what  he  knew 
was  to  lead  to  that  oath,  must  he  not  be  taken  to  have  consented  that 
the  ownershij)  should  really  be  as  that  oath  described  it  to  be?     The 
case  of  Mucklow  v.  Mangles,  1  Taunt.  318,  seems  to  us  to  be  clearly 
distinguislia'ble  from  the  present,  because  the  bargain  there  for  buihliiig 
the' barge  dbesTiSt  appear  to  have  stipulated  for  the  advances  which 
were  made;  and  those  advances  do  nut  appear  to  have  been  regulated 
by  the  progress  of  the  work.     Mr.  Justice  Heath's  opinion  ajjpears  to 
have  been  founded  on  the  notion  that  the  builder  was  not  tied  down  to 
deliver  that  specific  barge,  but  would  have  been  at  full  liberty  to  have 
substituted  any  other  he  was  building,  and  the  builder  had  done  no  act 
expressing  an  unequivocal  consent  that  the  general  jjroperty  should  be 
considered  vested  in  the  purchaser.     The  ])ainting  of  the  name  upon 
the  stern,  the  only  act  there,  pledged  the  builder  to  nuthing;  it  ex- 
pressed an  intention  that  the  barge  should  be  Pocock's,  but  it  did  no 
more.     He  miffht  change  that  intention  and  obliterate  the  name.     But 
the  signing  of  the  certificate  here,   to  the  intent  that  the  defendant 
mioht  obtain  a  registry  in  his  own  name,  Avas  a  consent  that  what  was 
necessary  to  enable  the  defendant  to  obtain  such  registi'y,  should,  as 
between  them,  be  considered  as  complete;  and  that,  as  the  defendant 
Avould  have  to  swear  that  he  was  sole  owner  of  the  ship,  the  owner- 
ship should  be  considered  his.     We  are,  therefore,  of  opinion,  that  the 
assignees,  who  claim  under  Paton,  are  bound  equally  Avith  him ;  and  as 
this  is  not  a  case  within  the  statute  of  James,  the  i)laintiffs  are  not  en- 
titled to  recover  the  general  value  of  the  ship.     And  as  to  the  rudder 
and  cordage,  as  they  were  bought  by  Paton  specifically  for  this  ship, 
though  they  were  not  actually  attached  to  it  at  the  time  his  act  of 
bankruptcy  was  committed,  they  seem  to  us  to  stand  upon  the  same 
footing  with  the  ship,  and  that,  if  the  defendant  was  entitled  to  take 
the  ship,  he  was  also  entitled  to   take  the   rudder   and  cordage  as 
parts  thereof     Upon  the  last  question,  however,  we  are  of  opiniuu 
against  the  defendant.     Though   the   general   ownership  was  vested 
in  the  defendant,  the  possession  remained  with  Paton;  and  as  the 
bills   for  the  third  and  fourth  instalments  were  to  be  given  at  the 
launching  of  the  ship  (when  launched),  Paton,  had  he  completed  the 
shij),  would  have  had  a  lien  upon  it  till  those  bills  Avere  given ;  and  as 
the  defendant  thought  fit  to  take  the  ship  before  it  Avas  complete,  at\er 
having  given  bills  for  the  first  three  instalments  only,  avc  think  he 
ought  to  have  given  a  bill  for  so  much  of  the  fourth  instalment  as,  ac- 
cording to  the  value  of  Avhat  remained  to  be  done,  Paton  Avas  entitled 
to  receive ;  and  that,  unless  Avhat  remained  to  be  done  Avould  be  equal 


798  FRAGANO    V.    LONG.  [CHAP.  II. 

to  the  whole  of  the  fourth  insttihiient,  his  taking  the  ship,  without 
giving  or  tendering  such  a  bill,  was  a  wrongful  taking.  We  are,  there- 
fore, of  opinion  that,  according  to  the  provision  made  in  that  respect 
in  the  case,  it  ought  to  he  referred  to  Mr.  Bainbridge  and  Mr.  Clayton, 
and  such  third  person  as  tliey  shall  apj:)oint,  to  take  an  account  of  the 
want  of  materials  stipulated  to  be  provided  by  Paton  not  on  board,  and 
the  fair  expense  of  launching,  and  to  enter  tlie  verdict  accordingly.  If 
the  want  of  materials,  and  the  expense  of  launching,  shall  amount  to 
£750,  the  verdict  to  be  entered  for  the  defendant;  if  it  shall  amount  to 
lessythan  £750,  a  verdict  for  the  difference  to  be  entered  for  the  plaintiff. 

Judgment  accordingly. 


K 


FRAGANO  V.   LONG. 

In  the  King's  Bench,  Easter  Term,  1825. 

[liejmted  in  4  Bamewall  ^  Cresswell,  219.] 

Assumpsit  against  defendant  as  owner  of  the  brig  or  vessel  James 
and  Theresa,  for  negligence  in  shipping  a  cask  of  hardware.  At  the 
trial  before  Hullock,  B.,  at  the  Lancaster  summer  assizes,  1824,  the  fol- 
lowing facts  appeared  in  evidence.  Mason  &  Sons,  hardwaremen  at 
Birmingham,  in  April,  1822,  received  an  order  from  the  plaintiff  resid- 
ing at  Naples,  of  which  the  following  is  a  translation :  — 

^  Naples,  March  28,  1822. 

Order  transmitted  by  G.  Fragano,  of  this  city,  to  Mason  &  Sons  of  Binning- 
hani,  through  Mr.  F.  L.  for  the  following  merchandise,  to  be  despatched  on 
insurance  being  effected.     Terms  to  be  three  months'  credit  from  the  time  of 


> 


Y]     \  arrival.  —r--- 

^\j  The  order  then  specified  the  goods.     In  pursuance  of  this  order,  the 

cask  of  hardware  in  question  marked  Avith  the  plaintiff's  initials  was 

sent   by  the  canal  from  Birmingham,  by  Mason  &  Sons,  to  Messrs. 

Stokes,  their  shipping  agents  at  Liverpool,  with  directions  to  forward 

X     the  same  to  Naples.     An   insurance  was   effected,  and   the   interest 

\^  ^  ^  declared  to  be  in  Fragano.    On  the  3d  of  July,  Messrs.  Stokes  received 

V\       a  notice  of  the  arrival  of  the  goods  from  the  canal  carrier,  and  sent 

their  porter,  who  received  the  goods  from  the  carrier,  and  took  them  in 

^       a  cart  to  the  quay  where  the  James  and  Tlieresa  was  lying,  and  deliv- 

\»  ■  x^red  them  on  the  quay  to  the  mate  of  that  vessel,  who  gave  the  follow- 

^  ^  ^ing  receipt :  — 

i  v^    ^     Received  in  good  order  and  condition  on  board  the  James  and  Theresa,  for 

^3   v^ Naples,  one  cask  of  hardware. 
\N>Y  G.  F.  Sauvei.  Smith,  Mate. 

\^  ^  From  W.  &  J.  Stokes. 


SECT,  v.]  FRAGANO    V.    LONG.  799 

Tlic  goods  -were  left  in  tlie  custody  of  the  mate,  and  before  they  were 
actually  put  on  board,  by  some  accident  the  cask  fell  into  the  water,  by 
whicli  the  injury  complained  of  was  sustained.  Upon  this  evidence  tlie 
jury,  under  the  direction  of  the  learned  judge,  found  a  verdict  for  tlie 
plaintiff.  In  Michaelmas  term  a  rule  nial  for  a  new  trial  was  obtained, 
on  the  ground,  first,  that  no  bill  of  lading  having  been  made  out,  the 
property  in  the  goods  was  never  vested  in  the  i)laintitf;  secondly,  that 
by  the  terms  of  the  order,  the  goods  were  not  to  be  at  the  plaintiff's 
risk  until  after  their  arrival  at  Naples. 

F.  Pollock  was  now  called  upon  to  support  the  nile.  The  plaintiff 
ought  to  have  been  nonsuited  in  this  case,  for  it  did  not  appear  that  the 
pro))erty  in  the  goods  ever  vested  in  him.  The  receipt  given  by  the 
mate  of  the  vessel  left  the  goods  in  the  power  of  Messrs.  Stokes,  and 
he  would  have  been  bound  to  deliver  them,  according  to  any  order 
subsequently  given  by  Messrs.  Stokes.  Craven  v.  llyder.^  But  no  bill 
of  lading  or  other  document  making  the  goods  deliverable  to  the  plain- 
tiff  was  ever  signed  ;  he,  therefore,  never  had  such  a  property  in  them 
as  would  enable  him  to  maintain  this  action.  Then,  secondly,  the 
goods  were  to  be  paid  for  three  months  after  their  arrival ;  if  they 
never  arrived  the  plaintiff  could  never  be  called  upon  for  payment ; 
they  were  not,  therefore,  at  his  risk  until  they  arrived  at  Naples. 

Crompton,  contra,  was  desired  by  the  court  to  confine  himself  to  the 
last  point.  That  was  a  mere  arrangement  as  to  the  time  of  i)ayment, 
and  could  not  prevent  the  vesting  of  the  goods  in  the  phiintifJ".  Kugg 
V.  Minett.-  The  order  for  insurance  makes  it  quite  clear  that  the  goods 
were  to  be  at  his  risk  as  soon  as  they  lefl  Birmingham. 

Bayley,  J.  Considering  this  case  ai)art  from  the  order  given  by  the 
plaintiff,  it  is  quite  free  from  doubt  either  in  law  or  justice.  It  a])pears, 
however,  that  the  plaintiff  sent  an  order  to  Mason  *fc  Sons  at  Birming- 
ham, for  the  goods  in  question  "to  be  despatched  on  insurance  being 
effected.  Terms  to  be  three  months'  credit  from  the  time  of  ariival." 
But  for  that  order  the  goods  never  would  have  left  Mason's  warehouse, 
and  when  sent,  they  were  marked  with  the  plaintiff's  initials.  If  the 
goods  had  been  destroyed  by  lightning  on  the  road  to  Liverpool,  Fra- 
o-ano  must  have  borne  the  loss.  At  Liverpool,  Stokes  &  Co.,  Mason's 
shipping  agents,  shipped  the  goods  and  took  a  receipt.  It  is  argued 
that  the  agent  was  thereby  enabled  to  maintain  an  action  for  the 
goods,  but  that  Fragano  as  his  principal  could  not.  I  think  that  posi- 
tion is  not  correct,  although  there  might  have  been  some  difficulty  had 
Stokes  &  Co.  set  u])  an  adverse  interest.  It  therefore  seems  to  ine, 
that  as  the  goods  left  Mason's  warehouse  by  the  order  of  the  i)laintiff, 
Tliey  were  at  his  risk,  and  that  he  can  maintain  an  action  for  them, 
"TiSesTthe  form  of  the  order  which  he  gave  for  them  deprives  him  of 

1  6  Taunt.  433.  2  n  East,  210. 


800  PRAGANO    V.   LONG.  [CHAP.  11. 

that  right.  It  has  been  urged,  that  the  form  of  the  order  throws  the 
risk  upon  the  vendor  until  the  arrival  of  the  goods,  for  they  were  not 
to  be  paid  for  until  three  months  from  that  period,  and  consequently 
that  the  an-ival  was  a  condition  precedent  to  Mason's  right  to  sue  for 
the  price.  If,  however,  the  goods  were  not  to  be  paid  for  unless  the^ 
arrived,  why'should  the  plaintiff  insure  them  ?  That  shows  that  the^ 
arrivalwas  not  considered  as  a  condition  precedent  to  the  payment. 
fr'TTfe'  goods  arrived,  three  months  from  the  arrival  was  to  be  the 
period  of  credit ;  if  they  did  not  arrive,  still  the  plaintiff  would  be 
bound  to  pay  in  a  reasonable  time  after  the  arrival  became  impossible. 
If  this  were  not  so,  the  insurance  would  be  altogether  nugatory,  for 
Fragano  could  not  sue  upon  it,  neither  could  Mason,  the  interest  being 
declared  to  be  in  Fragano.  For  these  reasons,  I  am  of  opinion  that 
the  form  of  the  order  for  the  goods  does  not  vary  the  case,  and  that 
the  verdict  was  properly  found  for  the  plaintiff. 

HoLROTD,  J.  I  also  think  that  the  verdict  found  for  the  jilaintiff 
was  rio-ht.  It  has  been  argued  that  neither  the  mate  nor  the  owner  of 
the  vessel  was  liable  to  any  one  but  Stokes  &  Co.,  from  whom  the 
goods  were  received.  But  it  is  a  principle  of  law,  that  the  real  owner 
of  the  goods,  for  whom  Stokes  &  Co.  were  agents,  may  sue  for  the  loss, 
^ItFough'the  defendant  waTnol  informed  of  his  existence.  Then  it  has 
been  urged  that  Fragano  had  no  interest  in  the  goods,  and  the  terras 
of  the  order  have  been  adverted  to  in  support  of  that  argument;  but 
I  think  that  the  goods  became  his  property  as  soon  as  they  were  sent 
off  by  Mason  &  Co.  When  goods  are  to  be  delivered  at  a  distance 
from  the  vendor,  and  no  charge  is  made  by  him  for  the  carriage,  they 
become  the  property  of  the  buyer  as  soon  as  they  are  sent  off.  It  was 
next  contended  that  Fragano  was  not  liable  to  the  vendor  unless  the 
goods  arrived ;  but  the  order  for  insurance  is  decisive  as  to  that.  The 
policy  was  to  protect  Fragano,  and  shows  that  he  considered  he  should 
be  the  sufferer  if  the  goods  were  lost  on  the  voyage,  which  he  could 
not  have  been,  had  the  arrival  of  the  goods  been  a  condition  precedent 
to  his  liability  to  the  vendors.  The  expiration  of  three  months  was  to 
be  the  time  of  payment  if  the  goods  an-ived ;  if  they  did  not  arrive, 
the  law  would  imply  a  promise  to  pay  in  a  reasonable  time. 

LiTTLEDALE,  J.,  concurred.  Mule  discharged. 


^ 


ATKINSON    V.   BELL.  801 


^^ 


• 


^iit-t^ 


"^■^KllviSO^Jii  AXD    Others,  Asaifjnecs  of  ^leddon,  y.  BELL  a>?D 

Vy. 


In  the  King's  Bench,  Easter  Term,  1828. 


VJ       ^  \N      \\i  [Reported  in  8  Barnewall  ^-  Cresswell,  277.] 

\  Assumpsit  for  goods  sold  and  delivered,  goods  bargained  and  sold, 
work  and  labor,  and  materials  found  and  ])rovided.  At  tlie  trial  before 
Hullock,  B.,  at  the  summer  assizes  for  Lancaster,  1827,  it  ajipeared  that 
the  defendants  were  linen  and  thread  manufiicturers  at  Whitehaven,  in 
Cumberland.  The  bankrupt,  Sleddon,  before  his  bankruptcy  was  a 
machine-maker,  residing  at  Preston,  in  Lancashire.  One  Kay,  of  Pres- 
ton, obtained  a  patent  for  a  new  mode  of  spinning  flax,  and  the  defend- 
ants, being  desirous  of  trying  the  eflfect  of  it,  on  the  12th  November, 
1825,  by  letter  ordered  him  to  procure  to  be  made  for  them  as  soon  as 
possible  a  j^reparing  frame  and  two  spinning  frames,  in  the  manner  he 
most  approved  of  In  January,  1826,  Kay  ordered  two  spinning  frames 
and  a  roving  frame  to  be  made  by  Sleddon  for  the  defendants,  and 
informed  them  that  he  had  so  done.  These  machines  were  formed  on 
Kay's  first  plan,  and  completed  at  the  end  of  March ;  and  after  they  had 
been  so  completed  they  lay  in  Sleddon's  premises  a  month,  wliile  two 
other  machines  of  these  defendants,  intended  to  be  used  in  the  same 
mills,  were  altered  by  Sleddon,  under  Kay's  superintendence;  and 
when  those  had  been  completed  to  his  mind,  he  ordered  the  machines 
in  question  to  be  altered  in  the  same  manner.  The^  were  altered 
accordingly,  packed  in  boxes  by  Kay's  directions,  and  remained  on 
Sleddon's  premis"es7'"0h  tTie  23d  of  June,  1826,  Sleddon  wrote  to  the. 
defendants,  and  informed  them  that  the  two  frames  had  been  ready  for 
the  last  three  Aveeks,  and  begged  to  know  by  what  conveyance  they 
were  to  be  sent.  On  the  8th  of  August  a  commission  of  bankrupt 
issued  airainst  Sleddon,  under  which  he  was  duly  declared  a  bankrupt. 
The  assignees  afterwards  required  the  defendants  to  take  the  frames, 
but  they  refused  to  do  so.  It  was  objected  on  the  part  of  the  defend- 
ants, that  the  action  was  not  maintainable  for  goods  bargained  and 
sold,  because  the  property  in  the  frames  had  never  vested  in  tlie  defend- 
ants. The  learned  judge  Avas  of  opinion  that  the  action  was  not  main- 
tainable, and  he  directed  a  nonsuit  to  be  entered,  with  liberty  to  the 
plaintiffs  to  move  to  enter  a  verdict  for  the  price  of  the  machines.  A 
rule  nisi  having  been  obtained  for  that  purpose. 

Brougham  and  Farke  now  showed  cause.  The  plaintiff  is  not  enti- 
tled to  recover  on  the  count  f  )r  goods  bargained  and  sold,  because  that 
form   of  action   is   not  maintainable  unless  there  be  a  contract  for 


w 


802  ATKINSON   V.    BELL.  [CHAP.  II. 

specific  goods,  and  unless  every  thing  has  been  done  so  as  to  vest  the 
property  in  those  goods  in  the  purcliaser,  and  entitle  him  to  maintain 
trover  upon  tendering  the  price.  If  the  contract  can  be  satisfied  by 
selling  any  goods  of  a  certain  description,  this  action  will  not  lie ;  but 
the  proper  remedy  is  by  a  special  action  of  assumpsit  for  not  accepting. 
As  soon  as  specific  goods  have  been  selected  by  the  vendor,  and 
accepted  by  the  vendee,  and  every  thing  done  to  vest  the  property, 
this  action  will  lie,  but  not  until  then.  Now  here  the  defendants  did 
not  agree  to  accejit  any  particular  goods.  They  merely  ordered 
machines  to  be  made  for  them  in  a  particular  mode ;  and  the  only 
remedy  for  the  breach  of  such  a  contract  is  a  special  action  on  the  case 
for  not  accepting.  That  the  proj^erty  in  these  machines  did  not  pass 
to  the  defendants  is  clear ;  for  in  case  of  a  destruction  by  fire,  the  loss 
could  not  have  fallen  on  them,  but  it  must  haA^e  fallen  on  the  bankrupt. 
If  the  bankrupt  had  delivered  them  to  another  person,  the  defendants 
could  not  have  maintained  trover  for  them.  They  could  only  have 
brought  an  action  against  the  bankrupt  for  breach  of  contract,  in  not 
making  machines  according  to  order.  They  remained  the  property  of 
the  maker,  who  might  have  performed  his  contract  by  delivering  any 
other  similar  machines.  Suppose  an  execution  to  have  issued  against 
the  defendants,  could  these  machines  have  been  seized  by  the  sherifl:*as 
their  goods  ?  They  continued  the  goods  of  the  bankrupt,  although  he 
might  be  liable  to  an  action  for  breach  of  the  contract.  There  was  no 
proof  of  any  selection  of  these  goods  by  the  defendants.  Mucklow  v. 
Mangles  Ms  an  authority  to  show  that  no  property  in  a  chattel  bar- 
gained for  vests  in  the  person  who  orders  it  until  it  be  finished  and 
delivered,  even  though  the  price  be  paid.  And  according  to  the 
opinion  expressed  by  Littledale,  J.,  in  Simmons  v.  Swift,^  goods  bar- 
gained and  sold  will  not  lie  merely  because  the  property  passes.  The 
mere  bargain  will  not  suffice  unless  the  price  be  ascertained. 

Secondly,  the  plaintifis  cannot  recover  on  the  count  for  work  and 
labor ;  for  that  count  is  applicable  to  those  cases  only  in  which  the 
work  is  done  on  account  of  the  defendants.  Here  it  was  done  upon 
the  plaintiff''s  own  account,  in  working  up  his  own  materials  into 
machines,  Avhich,  when  completed  and  accepted,  and  not  until  then, 
could  be  the  property  of  the  defendants.  The  case  of  Towers  v. 
Osborne®  is  of  very  doubtful  authority,  and  was  said  to  be  an  extreme 
case  by  Lord  Tenterden,  C.  J.,  in  Garbutt  v.  Watson.* 

Cross^  Serjt.,  and  Tomlinson.,  contra.  There  was  a  specific  appro- 
priation of  these  machines  to  the  defendants  after  they  were  finished. 
Kay  was  the  agent  of  the  defendants;  and  their  letter  of  the  12th  of 
November,  1825,  gave  him  the  most  ample  powers  to  act  as  he  thought 

1  1  Taunt.  318.  2  5  b.  &  C.  857. 

3  1  Str.  506.  *  6  B.  &  A.  613. 


SECT,  v.]  ATKINSON   V.    BELL.  803 

best  for  their  interest,  and  therefore  lie  h:u\  sufficient  autliority  to 
appropriate  the  machines  to  tliem  if  he  tliought  proper.  After  tlie 
macliines  were  completed,  tlu  y  were,  by  Kay's  order,  altered  according 
to  the  latest  improvement,  and  to  correspond  with  otlier  machines  of 
these  defendants  altered  by  Sleddon,  under  Kay's  superintendence, 
and  intended  to  be  used  in  the  same  mill.  That  was  an  acceptaiH-o  of 
these  speciiic  machines  by  the  defendants  through  Kay.  It  thei'efore 
operated  as  a  purchase  of  them.  This  case  falls  within  the  jirinciple  of 
the  decision  in  Woods  v.  Russell.^  There  it  Avas  held,  that  an  un- 
finished chattel  may  be  apiirojiriated,  and  that  the  ai)jtroi)riatic)n  vests 
the  pro]>erty  in  the  chattel  in  the  ])erson  by  whose  order  it  has  been 
made.  It  is  not  true  that  the  bankrupt  could  by  his  own  act  substitute 
other  machines,  for  he  could  not  send  out  any  without  the  consent  of 
Kay,  the  patentee.  He  could  not  sell  them  without  the  pemiission  of 
Kay.  They  could  not  have  been  seized  under  an  execution  against  the 
goods  of  Sleddon,  because  the  sheriff  couhl  not  make  any  title  to  them 
without  Kay's  consent.  In  Rohde  v.  Thwaites^  an  a])proi)riation  of 
goods  by  the  seller,  assented  to  by  the  buyer,  was  held  to  vest  the 
property  in  the  latter.  Here  Sleddon,  by  Kay's  permission,  ajipro- 
priated  the  goods  to  the  defendants,  and  they  by  their  agent  Kay 
assented  to  that  ajiprojiriation. 

Secondly,  the  plaintiffs  are  entitled  to  recover  on  the  count  for  work 
and  labor.  For  here  the  machines,  but  for  the  orders  given  by  the  de- 
fendants, would  never  have  been  in  existence.  The  property  in  the 
thing  ordered  vests,  when  it  is  completed,  by  relation  in  the  orderer, 
and  the  person  who  made  it  may  then  sue  for  work  and  labor.  In 
Towers  v.  Osborne  ^  the  action  appears  to  have  been  for  the  value  or 
price  of  a  bespoken  chariot,  and  not  a  mere  action  for  damages  for  not 
accepting;,  and  in  Garbutt  v.  Watson,^  the  form  of  the  remedy  in 
Towers  v.  Osborne  was  not  questioned.  They  also  cited  Dunmore  v. 
Taylor.s 

Bayley,  J.  I  think  the  rule  for  entering  a  verdict  for  the  ]>laintiff 
ought  to  be  discharged.  If  the  declaration  had  contained  a  cf)unt  for 
not  accepting  the  machines,  the  ])laiiiti{fs  might  have  been  entitled  to 
recover;  and  I  think  now  that,  upon  payment  of  costs,  they  should  be 
allowed  to  set  aside  the  nonsuit,  and  add  other  counts  to  the  declara- 
tion, and  have  a  new  trial.  But  I  catniot  say  that  tlu'  iinqicTty  p;i--rd 
to  the  (k'fendants,  so  as  to  enable  the  plaintiffs  to  recover  on  the  counts 
f;*]-  ._;. M.ds  l)argained  and  sold,  or  for  work  and  labor.  It  is  said,  that 
the  ri'  was  an  appropriation  of  these  specific  machines  by  the  maker, 
and  that  the  property  thereby  vested  in  the  defendants.  I  think  it  did 
not  pass.    Where  goods  are  ordered  to  be  made,  while  they  are  in  prog- 

1  5  B.  &  A.  942.  2  6  B.  &  C.  388.  '  1  Str.  506. 

«  5  B.  &  A.  613.  *  Peake,  N.  P.  41. 


804  ATKINSON    V.   BELL.  [CHAP.  IL 

ress  the  materifils  belong  to  the  maker.  The  property  does  not  vest 
in  the  party  who  gives  the  order  vintil  the  thing  ordered  is  completed. 
And  although  while  the  goods  are  in  progress  the  maker  may  intind 
them  for  the  person  ordering,  still  he  may  afterwards  deliver  them  to 
another,  and  thereby  vest  the  property  in  that  other.  Although  the 
maker  may  thereby  render  himself  liable  to  an  action  for  so  doing, 
still  a  good  title  is  given  to  the  party  to  whom  they  are  delivered.  J[t^ 
is  true  that  Kay.  sawj,h.ese,ihings  while  they  were  in^gro^ress^  aiid 
knew  that  the  bankrupt  intended  them  for  the  defendants ;  yet  the^ 
might  afterwards  have  been  delivered  to  a  third  person.  This  case  is 
not  affected  by  the  argument  that  these  are  patent  articles,  because 
they  might  have  been  delivered  to  a  third  person  with  Kay's  assent. 
The  case  of  Woods  v.  Russell  ^  is  distinguishable.  The  foundation  of 
that  decision  was,  that  as  by  the  contract  given  portions  of  the  price 
were  to  be  paid  according  to  the  progress  of  the  work,  by  the  pay- 
ment of  those  portions  of  the  price  the  ship  Avas  irrevocably  appro- 
priated to  the  person  paying  the  money.  That  was  a  purchase  of  the 
specific  articles  of  which  the  ship  was  made.  Besides,  there  the  ship- 
builder had  signed  the  certificate  to  enable  the  purchaser  to  have  the 
ship  registered  in  his  name ;  the  legal  effect  of  which  was  held  to  be 
to  vest  the  general  property  in  the  purchaser.  If  in  this  case  an  ex- 
ecution had  issued  against  Sleddon,  the  sheriff  might  have  seized  the 
machines.  They  were  Sleddon's  goods,  although  they  were  intended 
for  the  defendants,  and  he  had  written  to  tell  them  so.  If  they  had 
expressed  their  assent,  then  this  case  would  have  been  within  Rohde  v. 
Thwaites,-  and  there  would  have  been  a  complete  appropriation  vest- 
ing the  jiroperty  in  the  defendants.  But  there  was  not  any  such  assejii.'Uu...  —^ 
to  the  api^ropriation  made  by  the  bankrupt,  and  therefore  no  action  for' 
'^)ods  bargained  and  sold  was  maintainable,  ^hen  as  to  ^he  counts 
for  work  and  labor,  if  you  employ  a  man  to  build  a  house  on  your  land, 
or  to  make  a  chattel  with  your  materials,  the  party  who  does  the  work 
has  no  power  to  appropriate  the  produce  of  his  labor  and  your  materi- 
als to  any  other  person.  Having  bestowed  his  labor  at  your  request 
on  your  materials,  he  may  maintain  an  action  against  you  for  work 
and  labor.  But  if  you  employ  another  to  work  up  his  own  materials 
in  making  a  chattel,  then  he  may  appropriate  the  produce  of  that  labor 
and  materials  to  any  other  ^^erson.  No  right  to  maintain  any  action 
ivests  in  him  during  the  progress  of  the  work ;  but  when  the  chattel 
^has  assumed  the  character  bargained  for,  and  the  employer  accepted  it, 
the  party  employed  may  maintain  an  action  for  goods  sold  and  de- 
livered, or,  if  the  employer  refuses  to  accept,  a  special  action  on  the 
case  for  such  refusal.  But  he  cannot  maintain  an  action  for  work  and 
labor,  because  his  labor  was  bestowed  on  his  own  materials,  and  for 


1  5  B.  &  A.  942.  2  6  B.  &  C.  388. 


SECT,  v.]  SWAIN    V.    SHEPHERD.  805 

himself,  and  not  for  the  person  "who  employerl  him.  I  think  that  in 
this  case  tlie  ])laintiff  cannot  recover  on  the  count  for  work  and  labor. 

HoLROYD,  J.  .  I  think  that  on  the  facts  given  in  evidence  a  verdict 
might  have  been  sustained  on  a  count  for  not  accepting  the  macliines. 
I  have  entertained  great  doubt  during  the  argument,  whether  a  verdict 
mio-ht  not  be  sustained  on  the  count  for  work  and  labor  and  materials 
found,  I  think  it  will  not  lie  for  goods  bargained  and  sold,  because 
there  Avas  no  specific  appropriation  of  the  machines  assented  to  by  the 
purchaser,  and  the  property  in  the  goods,  therefore,  remained  in  the 
maker.  Then  as  to  work  and  labor,  the  work  was  done,  and  the  labor 
bestowed  on  the  materials  of  the  maker  in  manufacturing  an  article 
which  never  became  the  proj^erty  of  the  defendants.  I  am  of  opinion, 
therefore,  that  the  work  was  done  for  the  bankrupt,  and  not  for  the 
deiendants. 

LiTTLEDALE,  J.  I  am  of  the  same  opinion.  Goods  bargained  and 
sold  will  not  lie  unless  there  be  a  sale.  There  could  not  be  any  sale  in 
this  case,  unless  there  was  an  assent  by  the  defendants  to  take  the 
articles.  Here  there  was  no  assent.  The  jjroperty  must  be  changed, 
to  make  the  action  maintainable.  If  the  property  had  been  changed, 
the  maker  could  not  have  delivered  these  machines  to  any  one  but 
the  defendants.  I  think,  however,  he  might  have  delivered  them  to 
another,  notwithstanding  any  thing  that  passed,  and  that  the  defend- 
ants could  not  have  maintained  trover  against  the  party  to  whom  they 
were  delivered.  In  the  case  of  an  execution  or  a  bankruptcy,  these 
machines  must  have  been  treated  as  the  goods  of  the  maker.  As  to 
the  count  for  work  and  labor  and  materials,  the  labor  was  bestowed, 
and  the  materials  were  found,  for  the  purpose  of  ultimately  effecting  a 
sale,  and  if  that  purpose  was  never  completed,  the  contract  was  not 
executed,  and  then  work  and  labor  will  not  lie.  The  work  and  labor 
and  the  materials  were  for  the  benefit  of  the  machine-maker,  and  not 
for  the  defendants.      O  \Ride  absolute^  on  payment  of  costs. 


^  ^/,„^ 


(V 


:v      ^^  /(^  '    y    SWAIN  V.  SHEPHERD. 
Lr  /"^  At  Nisi  Prius,  coram  Parke,  J.,  September  4,  1832. 

rv  [Repoi-ted  in  1  Moody  <J-  Robinson,  223.] 

Case  against  carriers  for  loss  of  goods.  . 
The  plaintiffs  were  manufacturers  at  Huddersficld. 
The  defendant  was  a  carrier  from  Huddersficld  to  Settle. 
One  Metcalfe,  a  tradesman  at  Settle,  had  sent  to  the  plaintiff  a  writ- 
voL.  I.  52 


806  ELLIOTT    V.    PYBUS.  [CHAP.  II. 

ten  order,  desiring  him  to  send  him  a  certain  quantity  of  kersey  at  a 
specified  price,  and  to  forward  it  by  the  defendant's  wagon. 

The  plaintiif  accordingly  delivered  the  goods  at  the  defendant's  office 
at  Huddersfield,  and  they  were  lost  in  the  course  of  the  journey. 

The  plaintiff's  clerk  gave  evidence,  that,  according  to  the  custom  of 
the  plaintiff's  business,  if  goods  were  ordered  by  a  customer  living  at  a 
distance  from  Huddersfield,  the  plaintiff  forwarded  the  same ;  but  if 
the  customer,  on  their  arrival,  disapproved  of  the  goods,  he  was  at 
liberty  to  send  them  back,  and  that  in  such  cases  the  plaintiff  paid  the 
carriage  both  ways ;  no  expi-ess  agreement  had  been  made  with  Met- 
calfe on  the  subject.  The  plaintiff,  at  different  times,  had  supplied 
Metcalfe  with  about  twenty-seven  parcels  of  goods ;  and  on  five  of  those 
occasions,  Metcalfe  had  returned  part  of  the  goods ;  but  no  instance  was 
given  of  any  one  entii*e  parcel  of  goods  being  returned. 

X  Williams,  for  the  defendant,  contended  that  the  action  should 
have  been  brought  by  the  consignee.     Dawes  v.  Peck,  8  T.  R.  330. 

Parke,  J.  Generally  speaking,  where  goods  of  a  fair  merchantable 
quality  are  forwarded  in  pursuance  of  a  written  order,  which  binds  the 
person  giving  the  order  to  receive  the  goods,  the  property  passes  to 
that  person  by  the  delivery  to  the  carrier,  and  he  is  the  proper  per- 
son to  sue  the  carrier  if  the  goods  are  lost ;  but  if  the  jury  believe  the 
evidence  of  the  plaintiff's  clerk,  the  goods  were  sent  merely  for  ap- 
proval, and  no  property  would  pass  to  Metcalfe  until  he  received  and 
adopted  the  goods.  The  jury  are  to  judge  how  far  the  account  given 
by  the  witness  is  to  be  relied  upon.  Verdict  for  the  plaintiff. 

iM  ^^^  ^l<-^  ^^'"^  ^'-^   ^^ 

^CO     -'7i>'?*^   ^^^^^  ELLIOTT   y.  PYBUS. 

-    ^^^^  ^"^'•''yflN  THE  Common  Pleas,  April  28,  1834. 


.  .     J^'^^^    ^^  ^  [Reported  in  10  Bingham,  612.] 


j^P^ 


Assumpsit  for  goods  bargained  and  sold  ;  work  and  labor ;  /and 
on  an  account  stated. 

At  the  trial  before  Arabin,  Serjt.,  in  the  sheriff's  court,  London,  it 
appeared  that  the  defendant  had  ordered  the  plaintiff  to  make  a  ruling- 
machine,  according  to  a  plan  of  the  defendant,  and  deposited  £4  towards 
the  payment. 

The  defendant  from  time  to  time  superintended  the  construction  of 
the  machine ;  and  before  it  was  finished  an  alteration  was  made  in  its 
construction  at  his  request.  When  it  was  complete  he  saw  it,  and  paid 
£2  more  on  account,  but  omitted  to  come  to  a  final  settlement. 


SECT,  v.]  ELLIOTT   V.   PYBUS.  807 

The  plaintiff  thereupon  sent  to  him  to  fetch  the  machine  away,  and 
pay  £10  195.  8<:^.,  the  balance  of  the  price. 

The  defendant  admitted  that  the  machine  was  made  accoi*ding  to 
his  order,  but  requested  the  phuutiif  to  send  it  home  before  it  was  paid 
for.  This  the  jjlaintiff  refused  to  do,  and  ordered  his  attorney  to  pro- 
ceed for  payment.  In  answer  to  an  appUcation  to  that  effect,  the  de- 
fendant called  on  the  attorney,  complained  of  the  exorbitance  of  the 
price  demanded,  and  went  away,  saying  he  would  not  pay  it.  He 
returned,  however,  in  about  an  hour,  and  said  he  would  endeavor  to 
arrange  it,  if  they  would  give  him  time. 

The  defendant's  counsel  declined  to  address  the  jury,  insisting  that 
there  had  been  no  acceptance  of  the  machine  by  the  defendant ;  that 
the  property  in  it  had  never  passed  to  him  ;  and  that,  consequently,  the 
plaintiff  could  not  recover  on  a  count  for  goods  bargained  and  sold,  but 
should  have  declared  specially  against  the  defendant  for  not  fetch- 
ing and  paying  for  the  machine  he  had  ordered.  Atkinson  v.  Bell  ^ 
and  Mucklow  v.  Mangles  '^  were  relied  on.  The  learned  seijeant, 
thought  there  had  been  ultimately  a  sufficient  assent  by  the  defendant 
to  the  price  demanded  by  the  plaintiff,  to  sustain  the  count  for  goods 
bargained  and  sold,  and  directed  a  verdict  for  the  plaintiff,  with  leave 
for  the  defendant  to  move  to  set  it  aside,  and  enter  a  nonsuit 
instead. 

Wilde,  Serjt.,  having  obtained  a  rule  nisi  accordingly,  Talfotird, 
Serjt.,  showed  cause.  In  Atkinson  v.  Bell,  the  patentee  of  certain 
spinning  machinery,  who  had  received  an  order  from  the  defendant  to 
have  some  spinning  frames  made  for  him,  employed  the  plaintiff  to 
make  the  machines  for  the  defendant,  and  informed  the  latter  that  he 
had  so  done :  after  the  machines  had  been  so  completed,  the  patentee 
ordered  them  to  be  altered :  they  were  afterwards  completed  according 
to  that  new  order,  and  packed  up  in  boxes  for  the  defendant,  and  the 
plaintiff  informed  the  defendant  that  they  were  ready,  but  he  refused 
to  accept  them  ;  and  it  was  held  that  the  plaintiff  could  not  recover  the 
price  from  the  defendant  in  an  action  for  goods  bargained  and  sold,  or 
for  work  and  labor,  and  materials.  So,  in  Mucklow  v.  Mangles,  it  was  , 
held  that  if  a  person  contracts  with  another  for  a  chattel  which  is  not 
in  existence  at  the  time  of  the  contract,  though  he  pays  him  the  whole 
value  in  advance,  and  the  other  proceeds  to  execute  the  order,  the 
buyer  acquires  no  property  in  the  chattel  till  it  is  finished  and  delivered 
to  him.  But  those  cases  are  distinguishable  fi'om  the  present,  for  in 
neither  of  them  was  there  any  assent  on  the  part  of  the  defendant  to 
accept  the  article  in  question.  And  in  Atkinson  v.  Bell,  Bayley,  J., 
says,  "If  the  defendants  had  expressed  their  assent,  then  this  case  would 
have  been  within  Rohde  y.  Thwaites,  and  there  would  have  been  a 

1  8  B.  &  C.  277.  2  1  Taunt.  318. 


808  ELLIOTT   V.    PYBU8.  [CHAP.  IT. 

complete  appropriation,  vesting  the  property  in  the  defendants."  Here, 
when  the  defendant  said  he  would  arrange  it  if  they  would  give  him 
time,  there  was  such  an  assent  as  effected  a  transfer  of  the  property  to 
him  ;  so  that  he  might  have  sued  for  it  in  trover,  and  must  have  borne 
the  loss  if  the  article  had  been  stolen  or  destroyed  by  fire ;  and  the 
case  falls  within  the  principle  of  Woods  v.  Russell.^  .  .  . 

Wilde.  In  the  present  case  the  property  never  passed  to  the  defend- 
ant, and  he  could  not  have  sued  for  the  article  in  trover.  The  plaintiff 
never  lost  his  lien  on  it,  which  he  would  have  done  if  there  had  been 
an  acceptance  on  the  part  of  the  defendant.  But  the  defendant  never 
assented  to  the  price ;  and  from  his  requiring  time  to  arrange  it,  it  may 
be  inferred  he  persisted  in  his  objections  to  the  amount,  and  refused  to 
accept  the  machine.  In  Woods  v.  Russell  there  were  periodical  pay- 
ments, which  kept  pace  with  the  Avork,  and  no  objection  was  made  to 
the  price.  In  Mucklow  v.  Mangles  it  was  held  the  property  in  the  barge 
did  not  pass,  although  the  defendant's  name  had  been  painted  on  the 
stern;  and  so,  in  Atkinson  v.  Bell,  the  acts  of  the  defendant's  agent  in 
the  progress  of  the  work  were  as  strong  as  those  of  the  defendant  here ; 
and  yet  it  was  held,  that  an  action  for  goods  bargained  and  sold  would 

not  lie. 

TiNDAL,  C.  J.  In  this  case  the  plaintiff  and  defendant,  by  mutual 
consent,  appear  to  have  considered  the  learned  serjeant  as  standing  in 
the  place  of  the  jury,  whom  the  defendant's  counsel  refused  to  address. 
The  learned  serjeant  was  of  opinion  that  there  had  been  such  an  ac- 
ceptance of  the  machine,  which  the  defendant  had  ordered,  as  to  enti- 
tle the  plaintiff  to  sue  for  the  price  in  a  count  for  goods  bargained  and 
sold ;  and  the  question  is,  whether  his  opinion  is  consistent  with  pre- 
ceding decisions,  particularly  those  of  Atkinson  v.  Bell  and  Mucklow 
V.  Mangles.  We  think  we  shall  do  no  violence  to  the  principle  estab- 
lished in  those  cases  if  we  uphold  the  present  decision.  Theprinci]]]^ 
concisely  stated,  is  this:  that  a  count  for  goods  bargained  and  sold  can 
only  be  maintained  where  the  property  in  the  goods  has  passed  from 
the  plaintiff  to  the  defendant  "Tlie' present  caseV"therefore,  resolves 
itself  into  a  question,  whetherthere  has  been  any  agreement  as  to  price 
between  the  plaintiff  and  defendant,  for  the  deposits  of  £4  and  £2  made 
by  the  defendant  in  advance  of  payment  relieve  the  case  from  any 
question  which  might  otherwise  have  arisen  under  the  Statute  of 
Frauds.  Is  the  case  then  distinguishable  from  Atkinson  v.  Bell  and 
Mucklow  V.  Mangles,  in  respect  of  any  such  agreement  as  to  price  as 
may  be  considered  an  acceptance  of  the  article?  In  Mucklow  v. 
Mangles,  the  defendant  never  did  assent  to  any  specific  price.  Here, 
although  at  one  time  the  defendant  refused  to    accept  the  machine 

1  5  B.  &  Aid.  942.     [The  learned  counsel  here  stated  that  case,  and  also  Rohde  w. 
Thwaites,  6  B.  &  Cr.  388.  — Ed.] 


SECT,  v.]  ELLIOTT   V.    PYBUS.  809 

because  he  thought  the  price  charged  too  high,  yet  he  ultimately  came 
in  to  the  plaintiff's  terms,  although  he  was  unable  to  furnish  the  money 
at  the  time.  I  allude  particularly  to  two  conversations,  in  one  of  which 
the  defendant  is  represented  to  have  admitted  that  the  machine  was 
made  according  to  his  orders,  and  requested  tliat  the  plaintiff  would 
send  it  home  before  it  was  paid  for,  but  the  plaintiff  refused  to  send  it 
unless  the  whole  of  his  demand  was  satisfied ;  and,  in  the  other,  "  that 
he  would  endeavor  to  arrange  it  if  he  could  get  time."  This  looks  as 
if  he  wanted  time  only,  and  as  if  the  question  between  him  and  the 
plaintiff  was  rather  as  to  the  time  than  as  to  the  amount  of  payment. 

I  agree  that  this  comes,  at  last,  to  the  question,  whether  or  not  the 
property  has  passed  to  the  defendant ;  and  that  the  ])laintiff  cannot  sus- 
tain his  action  for  goods  bargained  and  sold,  unless  when  the  defendant 
is  in  a  condition  to  recover  the  goods  in  trover,  and  must  sustain  the 
loss  in  case  of  their  being  stolen  or  destroyed  by  fire.^  .  .  .  Taking  the 
whole  of  the  circumstances  in  the  present  case  together,  I  think  it  is 
one  in  Avhich  the  property  passed  to  the  defendant  from  the  moment 
he  assented  to  the  price  demanded  by  the  plaintiff;  and  the  contest 
was  rather  as  to  the  time  than  a%  to  the  amount  of  payment. 

Park,  J.  The  distinctions  m  the  various  cases  on  this  subject  run 
extremely  fine.  But  the  question  here  is  a  question  of  fact,  whether 
there  has  been  such  an  appropriation  of  the  machine  by  the  defendant 
as  would  change  the  property.  The  chief  justice  has  entered  very 
fully  into  the  subject,  and  I  agree  in  his  observations.  It  was,  in  a 
manner,  left  to  the  learned  serjeant  at  the  trial  to  decide,  in  the  place 
of  the  jury,  whether  or  not  there  had  been  a  change  of  property ;  a 
jury  Avould  have  been  justified  on  this  evidence  in  finding  an  ultimate 
assent  by  the  defendant  to  the  price  demanded  by  the  plaintiff,  and 
consequently  such  an  appropriation  as  would  pass  the  property. 

Gaselee,  J.  If  this  had  gone  to  the  jury,  and  they  had  found  that 
the  defendant  assented  to  the  price  fixed  by  the  plaintifl^,  no  one 
could  have  objected  to  their  verdict.  By  consent  of  the  parties  it  was 
left  to  the  decision  of  the  learned  serjeant  who  presided ;  and  I  concur 
in  the  opinion  he  pronounced. 

Aldersox,  J.  The  learned  seijeant  reports  it  as  his  opinion,  that  the 
evidence  was  sufficient  to  show  an  acceptance  by  the  defendant.  If, 
therefore,  he  had  been  required  to  leave  that  point  to  the  jury,  he  would 
have  left  it  with  such  observations  as  would  probably  have  induced 
them  to  find  the  fact  the  same  way.  Had  they  so  found  it,  the  case 
would  have  been  decided  by  such  a  finding.  Hide-  discharged. 


1  The  learned  judge  here  cited  and  stated  the  case  of  Tempest  v.  Fitzgerald,  3  B. 
&  Aid.  680.  — Ed. 


810 


ALEXANDER  V.    GA/dNER. 


fyr^^^{^ 


[chap.  II. 


ALEXANDER  AjfD  Another  v.  GARDNER  and  Another. 


i 

% 


In  the  Common  Pleas,  May  6,  1835. 

[Reported  in  1  Bingham's  New  Cases,  671.] 

Assumpsit  for  goods  bargained  and  sold  under  the  following  circum- 
stances :  — 

The  plaintiffs,  merchants  in  London,  and  agents  for  L'ish  houses  in 
the  sale  of  buttei-,  being  in  exj^ectation  of  a  cargo  from  Murphy,  of  Sligo, 
entered,  by  means  of  their  broker,  into  the  following  contract  with  the 
defendants :  — 

London,  October  11,  1833. 

Sold  to  Messrs.  William  Gardner  &  Son,  for  account  of  Messrs.  Alexander  & 
Co.,  200  firkins  Murphy  &  Co.'s  Sligo  butter,  at  71*.  Qd.  per  cwt.  free  on  board 
for  first  quality  ;  45.  and  6s.  difference  for  inferiors.  Payment,  bill  at  two  months 
from  the  date  of  landing.  To  be  shipped  this  month.  An  average 
and  tares  within  six  days  of  landing,  if  required. 


for  weights 


-UN 


^ 


^ 

5 


On  the  11th  of  November,  the  plaintiffs  received  from  Murphy  the 
invoice  and  bill  of  lading  of  these  butters ;  and  also  the  intelligence 
that,  owing  to  there  having  been  no  ship  in  the  port  of  Sligo  bound 
for  London,  the  butter  had  not  been  shipped  till  the  6th  of  November. 

This  circumstance  was  immediately  communicated  to  the  defendants, 
who  at  first  refused  to  abide  by  the  contract,  on  the  ground  that  the 
butters  were  to  have  been  shipped  in  October.  In  a  little  time,  how- 
ever, they  abandoned  their  objection,  and  consented  to  retain  the 
invoice  and  bill  of  lading  which  had  been  delivered  to  them  on  the 
12th  of  November. 

The  invoice,  which  described  the  butters  in  detail  as  to  weight,  num- 
ber of  casks,  &c.,  was  addressed  to  the  plaintiffs,  but  upon  handing  it 
over,  their  name  had  been  struck  out,  and  the  name  of  the  defendants 
substituted,  as  is  usual  in  the  trade. 

The  bill  of  lading  described  the  casks  by  their  marks,  .5iid.,^everal 
quantities,  and  directed  them  to  be  delivered  to^^the  plaintiffs.  """"" 

In  December,  1833,  the  greatest  part  of  the  butters  was  lost  by  ship- 
wreck on  the  coast  of  Galway,  and  a  small  part  of  them  arrived  in  a 
damaged  state ;  whereupon  the  defendants,  not  having  effected  any 
insurance,  refused  to  pay. 

At  the  trial  before  Tindal,  C.  J.,  it  was  contended  on  their  part  that, 
under  the  circumstances  above  stated,  the  action  for  goods  bargained 
and  sold  did  not  lie ;  and  that  the  2:)laintiffs,  in  order  to  recover,  should 
have  declared  specially  on  the  contract  of  the  11th  of  October,  alleging 
and  proving  that  the  goods  had  been  shipped  in  October,  and  duly 


J^ 


^f 


i. 


4 


si 


f 


SECT,  v.]  ALEXANDER   V.    GARDNER.  811 

landed ;  since,  according  to  the  contract,  payment  was  not  to  be  made 
till  two  months  after  landing. 

The  jury  found  that  the  condition  for  shii)ping  in  October  had  been 
waived  by  the  defendants,  and  returned  a  verdict  for  £414,  the  contract 
price  of  the  butters. 

Tcdfourd,  Serjt.,  pursuant  to  leave  reserved  at  the  trial,  obtained  a 
rule  nisi  for  setting  aside  this  verdict,  and  entering  a  nonsuit  on  the 
ground  above  stated.     He  relied  mainly  on  Simmons  v.  Swift,'  where 
the  owner  of  a  stack  of  bark  entered  into  a  contract  to  sell  it  at  a  cer- 
tain price  per  ton,  and  the  purchaser  agi-eod  to  take  and  pnv  for  it  on 
a  day  specified,  and  a  part  was  afterwards  weighed  and  delivered  to 
him ;  it  was  held,  that  the  property  in  the  residue  did  not  vest  in  the 
purchaser  until  it  had  been  weighed,  that  being  necessary  in  order  to 
ascertain  the  amount  to  be  paid ;  and  that,  even  if  it  had  vested   the 
seller  could  not,  before  that  act  had  been  done,  maintain  an  action  for 
goods  sold  and  delivered.     From  that  case  it  followed  that  an  action 
for  goods  bargained  and  sold  will  not  lie,  unless  the  property  in  the 
goods  passes  to  the  purchaser  at  the  time  of  the  bargain.     But  so  far 
was  the  property  here  from  passing  to  the  defendants  at  the  time  of 
the  bargain,  that  at  that  time  the  goods  were  not  in  the  plaintiffs'  hands 
or,  for  aught  that  appeared,  in  existence.    And  the  principle  established 
by  Goss  V.  Lord  Nugent,-  that  when  the  time  for  delivery  is  fixed  by  a 
written  contract,  it  cannot  be  extended  by  oral  agreement,  afforded  a 
strong  argument  to  show  that  the  plaintiflfs  should  have  set  out  in  their 
declaration  the  special  circumstances  of  their  demand. 

Bom2Kis,  Serjt.,  and  Martin  showed  cause.     The  action  for  o-oods 
bargained  and  sold  will  lie ;  for  the  property  in  the  butters  passed  to 
the  defendants  by  the  contract.     It  was  not  necessary  to  that  end  that 
they  should  have  been  in  the  actual  ])ossession  of  the  plaintiffs.     The 
invoice  and  bill  of  lading  were  symbols  of  possession,  and  by  the  trans- 
fer of  those  symbols  the  property  passed  to  the  defendants.    Lickbarrow 
V.  Mason,^  Ilaille  v.  Smith,*  Cuming  v.  Brown,*^  Barrow  v.  Coles.®     The 
plaintiffs  had  no  longer  an  insurable  interest.    Hibbert  v.  Carter.''     In 
Simmons  v.  Swift  the  bargain  was  held  incomplete,  because  something 
remained  to  be  done  on  the  part  of  the  vendor,  namely,  the  weighinoa 
part  of  the  bark;  but  here,  at  the  time  of  the  contract,  the  quantity, 
quality,  weight,  and  price  of  the  butters  were   all  ascertained  by  the 
contract  itself.     Rohde  v.  Thwaites,^  Atkinson  v.  Bell,^  and  Elliott  y. 
Pybus,'°  are  strong  authorities  for  the  plaintiffs.     The  condition  for 
shipping  in  October  was  expressly  waived  by  the  defendants ;  there 
was  no  agreement  for  extending  the  time ;  and  therefore  Goss  v.  Lord 


1  5  B.  &  C.  857. 

2  5  B.  &  Adol.  58. 

3  2T.  R.  63. 

M  B.  &  r.  563. 

6  9  East,  50G. 

«  3  Campb.  92 

7  1  T.  R.  745. 

8  6  B.  &  C.  388. 

9  8B.&C.277. 

10  10  Bing.  512. 

812  ALEXANDER  V.    GARDNER.  [CHAP.  11. 

Nugent  has  no  application.  Even  if  the  contract  here  were  conditional, 
the  condition  having  been  waived,  it  was  not  necessary  to  declare 
specially.  2  Wms.  Saund.  269  b,  note.  As  to  the  objection  that  the 
goods  Avore  to  be  paid  for  in  two  months  after  landing,  that  was  a  stip- 
ulation ascertaining  only  the  time  of  payment,  and  not  rendering  the 
landing  a  condition  precedent.^  .  .  . 

Talfourd  QJidi  Kelly  m  support  of  the  rule. 

Looking  to  this  transaction,  it  was  not  a  contract  for  the  bargain  and 
sale  of  goods  at  the  time  of  the  contract,  and  did  not  become  so  by  any 
subsequent  circumstances.     For,  — 

First,  the  plaintiffs  did  not  make  out  their  case  by  shewing  simply 
the  indorsement  of  the  bill  of  lading :  they  were  obliged  to  connect  it 
with,  and  to  produce  the  sjDCcial  contract. 

Secondly,  the  goods  were  not  in  their  possession  even  Avhen  the  bill 
of  lading  was  transferred  ;  and,  — 

Lastly,  the  landing  of  the  goods  was  a  condition  precedent  to  their 
being  paid  for ;  and  as  the  contract  was  in  writing,  the  condition  for 
shipping  in  October  could  not  be  waived  orally. 

In  none  of  the  cases  cited  were  there  any  special  provisions  in  the 
contract,  with  reference  to  which  the  rights  of  the  parties  were  to  be 
decided;  and  in  all  of  them  the  goods  sold  were  in  the  possession  of  the 
vendors ;  but  here  the  plaintiffs,  not  being  in  possession  of  the  goods, 
were  not  in  a  situation  to  carry  the  contract  absolutely  into 
effect. 

If  Fragano  v.  Long  had  been  an  action  for  goods  bargained  and  sold,  it 
would  have  afforded  an  answer  to  the  objection  made  in  this  case,  that 
the  landing  of  the  goods  Avas  a  condition  precedent  to  the  j)roperty 
vesting  in  the  defendants ;  but  it  was  an  action  by  the  purchaser  of 
goods  against  a  ship-owner  for  negligence  in  conveying  them ;  and  the 
purchaser,  having  actually  insured  the  goods,  was  the  party  at  whose 
risk  they  were  carried.  Here  the  defendants  had  not  insured,  and  for 
the  reasons  before  urged,  were  not  the  responsible  proprietors. 

TiNDAL,  C.  J.  The  question  in  this  cause  is,  whether  an  action  for 
goods  bargained  and  sold  is  maintainable  against  the  defendants.  They 
contend  that  such  an  action  does  not  lie  against  them,  but  that  under 
the  circumstances  of  the  case,  the  plaintiffs  should  have  declared 
specially. 

The  original  contract  was  made  on  the  11th  of  October,  1833,  in 
which  contract  it  is  stated  that  the  plaintiffs  sold  to  the  defendants 
200  firkins  of  Sligo  butter,  free  on  board,  at  71^.  Qd.  per  cwt. ;  that  the 
goods  were  to  be  shipped  in  the  course  of  that  month,  and  that  pay- 
ment was  to  be  by  a  bill  of  exchange,  jDayable  two  months  after  the 
landing  of  the  goods, 

1  The  learned  counsel  here  cited  and  stated  the  case  of  Fragano  v.  Long,  4  B.  & 
Cr.  219.  — Ed. 


SECT,  v.]  ALEXANDER   V.   GARDNER.  813 

Fpon  this  contract  three  objections  liave  been  raised  to  the  action  for 
goods  bargained  and  sold. 

First,  that  the  butters  were  not  in  the  possession  of  the  phiintiffs  at 
the  time  of  the  contract. 

Secondly,  that  they  were  not  shipped  in  October  as  the  contract  re- 
quired ;    and, 

Thirdly,  that  as  the  payment  was  to  be  at  two  months  alter  the  land- 
ing of  the  goods,  and  as  the  goods  were  never  landed,  such  payment 
could  not  be  required. 

Notwithstanding  these  objections,  I  think  the  contract  was  to  pay 
for  goods  bargained  and  sold,  and  that  the  declaration  to  that  effect  is 
in  the  proper  forai.  And  I  agree  that  the  plaintiffs  must  show  that  the 
property  in  the  goods  passed  to  the  defendants  by  the  contract ;  for, 
unless  it  did,  the  goods  were  not  bargained  and  sold  to  them. 

But  as  to  the  first  objection,  if  the  goods  were  ascertained  and  ac- 
cepted  before Ifie-actioh  was  brought,  it  is  no  objection  that  they  were 
n ol  in"  f lie~possessr6n  oTtTie  ji)! ain tiffs  at  the  time  of  the  contract.  In 
Rolide  V.  ThwaiteSj^Ke'vericlor,  having  in  his  warehouse  a  quantity  of 
sugar  in  bulk,  agreed  to  sell  twenty  hogsheads  :  four  hogsheads  were 
delivered ;  the  vendor  filled  up  and  ajjpropriated  to  the  vendee  sixteen 
other  hogsheads ;  informed  him  that  they  were  ready,  and  desired  him 
to  take  them  away ;  the  vendee  said  he  would  take  them  as  soon  as  he 
could ;  and  it  was  held,  that  the  appro]u-iation  having  been  made  by 
the  vendor  and  assented  to  by  the  vendee,  the  sixteen  hogsheads 
thereby  passed  to  the  latter;  and  that  their  value  might  be  recovered 
by  the  vendor  under  a  count  for  goods  bargained  and  sold. 

Here  it  is  impossible  to  say  that  the  goods  were  not  ascertained  and 
accepted  before  the  action  was  brought ;  for  the  quantity,  quality,  and 
"pi-ice  were  all  specified  in  the  invoice ;  and  the  bill  of  lading  was  regu- 
larly indorsed  to  and  accepted  by  the  defendants. 

But  then  it  is  said  that  the  shipping  of  the  goods  in  October  was  a 
condition  precedent  to  any  claim  on  the  defendants.  If  the  defend- 
ants had  in  the  first  instance  repudiated  the  bargain  on  that  ground,  it 
is  true  no  action  would  have  lain  against  them.  But  it  is  found  by  the 
jury  that  they  waived  the  objection  ;  and  this  being  only  a  parol  con- 
tract, if  the  party  waives  the  condition  he  is  in  the  same  situation  as  if 
it  had  never  existed. 

The  third  objection  to  the  plaintiffs'  recovery  is,  that  the  buttei-s 
were  to  be  paid  for  by  a  bill  at  two  months  after  landing.  But  the  ob- 
ject of  that  stipulation  was  merely  to  fix  the  time  of  payment,  and  not 
CS"imike  the  landing  a  condition  precedent.  For  that  point  it  is  enough 
bo'TcTer'to  the  decision  in  Fragano  v.  Long. 
The  present  case,  therefore,  is  brought  within  the  result  of  all  the 

1  6  B.  &  C.  388. 


814  ALEXANDER  V.    GARDNER.  [CHAP.  II. 

decisions,  as  stated  by  Serjeant  Williams,  in  the  note  2  Wms.  Saund. 

269  b. 

Here  the  action  was  not  brought  till  long  after  the  two  months  which 
would  have  succeeded  the  landing  of  the  goods,  if  they  had  arrived  in 
the  ordinary  course.  The  plaintiffs,  therefore,  being  in  the  situation  of 
one  who  has  parted  with  his  goods,  and  the  defendants  of  one  who  has 
received  them  upon  an  engagement  to  pay,  the  action  will  lie,  and  this 
rule  must  be  discharged. 

Park,  J.     I  entirely  concur.     The  condition  for  shipping  the  goods 
in  October  having  been  waived,  the  question  is,  whether  an  action  lies 
for  goods  bargained  and  sold  ;  and  that  turns  on  the  question  whether 
or  not  there  has  been  an  acceptance  of  the  goods  by  the  defendants.    I 
think  there  has,  and  that  an  action  might  have  been  maintained  even 
for  goods  sold  and  delivered ;  but  it  is  sufficient  to  say  that  the  right  to 
sue  for  goods  bargained  and, sold  is  complete.     The  defendants'  argu- 
ment turns  on  the  princijile,  that  goods  sold  remain  at  the  risk  of  the 
vendor,  till  every  thing  is  done  to  complete  the  contract :  Hinde  v. 
Whitehouse ;  ^  or  till  a  specific  appropriatioYi  has  taken  place.   But  that 
having  been  effected  here  by  the  transfer  of  the-  bill  of  lading,  the  case 
falls  within  the  principle  of  Rohde  v.  Thwaites  and  Fragano  v.  Long. 
We  have  been  pressed  with  the  authority  of  Simmons  v.  Swift.     There 
the  owner  of  a  stack  of  bark  entered  into  a  contract  to  sell  it  at  a  cer- 
tain price  per  ton,  and  the  purchaser  agreed  to  take  and  pay  for  it  on 
a  day  specified ;   and  a  part  was  afterwards  weighed  and  delivered  to 
him :  it  was  held  that  the  residue  did  not  vest  in  the  purchaser  xmtil  it 
had  been  weighed,  that  being  necessary  in  order  to  ascertain  the  amount 
to  be  paid;   and  that,  even  if  it  had  been  vested,  the  seller  could  not, 
before  that  act  had  been  done,  maintain  an  action  for  goods  sold  and  de- 
livered.  In  that  I  entirely  concur.   But  see  what  the  case  was  in  Rohde 
V.  Thwaites.     Tbere  the  vendor,  having  in  his  warehouse  a  quantity  of 
sugar  in  bulk,  agreed  to  sell  twenty  hogsheads :  four  hogsheads  were 
delivered,  to  the  vendee ;  the  vendor  filled  up  and  appropriated  to  the 
vendee  sixteen  other  hogsheads,  informed  him  that  they  were  ready, 
and  desired  him  to  take  them  away.     The  vendee  said  he  would  take 
them  as  soon  as  he  could.     It  was  held,  that  the  appropriation  hav- 
ing been  made  and  assented  to,  the  property  in  the  sixteen  hogsheads 
passed  to  the  vendee,  and  that  their  value  might  be  recovered  by  the 
vendor  under  a  count  for  goods  bargained  and  sold.     And  the  argu- 
ment that  the  arrival  and  landing  of  the  goods  was  to  be  a  condition 
precedent  to  payment,  is  answered  by  Fragano  v.  Long.     There  the 
vendee,  resident  at  Naples,  sent  an  order  to  the  vendors,  hardwaremen 
at  Birmingham,  "  to  despatch  to  him  certain  goods,  on  insurance  being 
effected ;  terms,  three  months'  credit  from  the  time  of  amval."     The 

1  7  East,  558. 


SECT,  v.]  ALEXANDER    V.    GARDNER.  815 

veiiflors  flespntchcd  tlie  goods  by  the  canul  to  Liverpool,  and  effected 
an  insurance,  declaring  the  interest  to  be  in  the  vendee :  at  Liverpool 
the  goods  were  delivered  by  the  agent  of  the  vendors  to  the  owner 
of  a  vessel  bound  to  Naples,  through  wliose  negligence  they  were 
much  damaged :  it  was  held,  that  the  property  in  the  goo<ls  vested 
in  the  vendee  as  soon  as  thoy  were  despatched  from  Birmingham; 
that  the  terms  of  the  order  did  not  make  the  arrival  of  the  goods 
at  Naples  a  condition  precedent  to  a  liability  to  pay  for  them  ;  and  that 
the  vendee  might  therefore  maintain  an  action  for  the  injury  done  to 
the  goods  through  the  negligence  of  the  ship-owner. 

That  case,  therefore,  and  the  case  of  Rohde  v.  Thwaites,  entirely 
warrant  our  present  decision. 

Gaselee,  J.  The  chief  justice  and  my  brother  Park  having  gone  so 
fully  into  the  case,  I  shall  only  observe  that  here  the  invoice  specifies 
the  weight  and  price  of  all  the  goods. 

BosAJN'QUET,  J.  I  think  that  this  was  a  contract  executed,  and  that 
therefore  the  jilaintiff  has  properly  declared  for  goods  bargained  and 
sold.  It  is  not  necessary  for  the  support  of  such  an  action  that  the 
goods  should  be  actually  in  the  possession  of  the  vendor.  Here  he  was 
entitled  to  the  possession,  and  has  done  all  that  was  required  on  his 
part  to  render  the  transfer  effectual.  It  is  said  he  should  have  declared 
specially,  showing  the  performance  of  the  condition  precedent  as  to  the 
time  of  shipping,  or  a  waiver  of  it  in  writing.  If  the  contract  contain- 
ing the  condition  had  been  by  deed,  that  doctrine  might  have  applied, 
but  this  was  a  parol  contract,  and  the  condition  might  be  waived  with- 
out a  writing.  A  contract  must  be  declared  on  according  to  its  legal 
effect;  and  the  effect  of  all  the  circumstances  here  is,  to  render  it  a  con- 
tract without  a  condition.  The  objection  that  the  arrival  of  the  goods 
was  a  condition  precedent  to  payment,  is  answered  by  the  case  of 
Fragano  v.  Long,  where  it  was  decided  that  the  property  in  the  goods 
vested  in  the  vendee  as  soon  as  they  were  despatched  from  Birming- 
ham ;  that  the  terms  of  the  order  did  not  make  the  arrival  of  the  goods 
at  Naples  a  condition  precedent  to  the  vendee's  liability  to  pay  for 
them;  and  that  he  might  therefore  maintain  an  action  for  the  injury 
done  to  the  goods  through  the  negligence  of  the  ship-owner.  Here, 
the  time  for  arrival  of  the  goods  having  long  since  elapsed,  the  time  for 
payment  must  also  be  arrived  if  there  was  to  be  any  payment  at  all, 
and  that  there  was  to  be  a  payment  is  decided  by  Fragano  v.  Long. 

Hide  discharged. 


CLAEKE  V.    SPENCE.  [CHAP.  II. 


^  N  \r<    n  CLARKE   AND   Others   v.   SBENCE   and   Others. 
VV  A^K        In  the  King's  Bench,  Hilary  Term,  1836. 


5 


^ 


vT  \   \r  [Reported  in  4  Adolphus  <j-  Ellis,  448.] 

,        i  <  Trover  for  a  ship.     Plea,  the  general  issue.     The  plaintiffs  were  mer- 

\^»N  chants,  carrying  on  business  at  Newcastle-upon-Tyne,  under  the  firm  of 

J       Clarke,  Plummer,  &  Co. ;  the  defendants  were  the  assignees  of  John 

^  Bninton,  a  bankrupt.     On  the  trial  before  Alderson,  J.,  at  the  Durham 

spring  assizes,  1834,  a  verdict  was  found  for  the  plaintiffs  for  £1002  lis., 

subject  to  the  opinion  of  this  court  on  the  following  case :  — 

On  the  24th  of  February,  1832,  Brunton,  before  his  bankruptcy,  con- 
tracted, by  a  written  agreement,  to  build  a  ship  (not  now  in  question) 
i  for  the  plaintiffs,  and  the  contract  was  performed  on  both  sides.  The 
agreement  commenced  with  a  specification,  stating,  under  several 
heads  of  "dimensions,"  "scantling,"  "stores,"  &c.,  the  manner  in 
which  the  ship  was  to  be  built,  the  materials  to  be  used,  and  the  out- 
fit to  be  furnished ;  and  it  then  proceeded  as  follows :  — 

It  is  agreed  between  Mr.  John  Brunton  of  Southwick,  ship-builder,  and 
Clarke,  Plummer,  &  Co.,  of  Newcastle,  that  the  said  Mr.  John  Brunton  will 
build  a  vessel  of  the  before-mentioned  dimensions  and  scantlings,  in  every  point 
fully  equal  to  the  Andromeda  in  workmanship,  and  fit  said  hull  out  with  the 
materials  of  the  sizes  and  descriptions  before  named,  all  of  approved  quality,  &c. 
Mr.  Benjamin  Heward  to  superintend  the  building  and  outfit.  The  vessel  to  be 
launched  in  the  month  of  July  next  ensuing  :  for  the  sum  of  £3250,  payable  as 
ipllows :  — 

When  rammed,  by  bill  at  three  months'  date  to  the  amount  of    .     .      £400 

{     When  timbered,  the  like  payment  of 400 

I     When  decked,  the  like  payment  of 400 

I     When  launched,  the  like  payment  of 500 

I     The  residue  or  balance,  one  half  at  four  months'  and  six  months' 

date,  to  the  amount  of 1,550 

£3,250 
John  Brunton  for  self  and  Co. 
Signed  at  Southwick,  24th  February,  1832.  Thomas  Clarke. 

1832,  March  22d.  Agreed  with  Mr.  Brunton  to  make  the  vessel  six  inches 
deeper,  say  to  be  17^  feet  deep,  for  which  he  is  to  be  paid  £25.  On  same  day 
arrano-ed  with  Mr.  Heward  to  inspect  the  building  of  the  vessel,  for  which  he  is 
tobepaid  the  sumof£40.  Thomas  Clarke. 

On  the  5th  of  Jiily,  1832,  Brunton  contracted  in  writing  with  the 

plaintiffs  to  build  them  another  ship,  the  subject  of  this  action.     The 

agreement  was  as  follows :  — 

Southwick,  5th  July,  1832. 

Messrs.  Clarke,  Plummer,  &  Co.,  Newcastle, 

Sirs,  — I  agree  to  build  you  a  vessel  of  the  following  dimensions  for  the  sum 


SECT,  v.]  CLARKE  V.    SPENCE.  817 

of  £3400  (lierc  folio-wed  a  statement  of  dimensions)  ;  to  be  finished  in  every 
respect  similar  to  the  vessel  I  contraeteil  to  build  for  you  on  the  2-ith  of  February 
last,  with  the  exception  of  tiie  anchors,  which  for  the  present  vessel  are  to  be  of 
the  weights,  &c.  The  vessel  to  be  launched  in  the  month  of  December  next, 
and  to  bi^jjaid  for  in  thes.qme  way  as  the  vessel  already  alluded  to. 

I  am,  sirs,  yours  respectfully,  John  Bkuntok. 

Mr.  Howard  to  superintend  the  building  of  the  within-named  vessel,  and  to  be 
paid  £40  for  the  same.  T.  C. 

Brunton  proceeded  to  build  the  last-named  vessel  in  liis  yard  at 
Southwick,   and  before  his  bankruptcy  the-  vessel  -was  rammed  and 

timbered.    TmuJjifito]iueftts.>oLtJ\e,,iSy':ft^nPJ.^ 

vessel  Avas  rammed,  and  £402  lis.  -when  the  vessel  was  timbered,. ij;ej;fe., 
paid    nric.ord^i;^  to  the^^agreenuMit,  Ix  Core  llio  l>,iii1<ruptcy ;  and  the 
plaintiffs  also  paid  Brunton  before   lii.s  baHkru[.lcy   £i*UU  by  Avay  of 
anticipation  on  the  third  instalment :  the  payments  before  the  bank- 
ruptcy amounting  in  all  to  £1002  lis. 

Brunton  became  bankrupt  in  October,  1832,  after  the  ship  -svas  all 
timbered  and  planked  (except  about  five  planks  outside),  but  not 
decked.  The  fiat  issued,  November  1st,  1832,  and  the  defendants 
-VN'ere  a2)pointed  assignees  on  the  IGth. 

The  frame  of  the  vessel  at  the  time  of  the  bankruptcy,  on  the  15th 
of  October,  1832,  was  worth  £1601  13s.  Id,  that  being  the  value  of 
the  timber  and  the  work  done  upon  her.  After  Brunton  became 
bankrupt,  the  defendants  as  assignees  took  possession  of  the  whole  of 
the  ships,  timber,  goods,  chattels,  and  effects  in  Brunton's  yards  and 
premises,  and,  amongst  other  things,  of  the  frame  of  the  vessel  in 
question. 

On  the  27th  of  November,  1832,  the  plaintiffs  gave  notice  in  writing 
to  the  defendants,  then  in  possession  of  the  frame  of  the  said  vessel, 
that  the  same  was  the  property  of  Clarke,  Plumnier,  &  Co. ;  and  they 
required  the  defendants  to  give  up  2)ossession,  threatening  legal  pro- 
ceedings on  non-compliance.  They  did  not  at  that  time  tender  any 
money.  A  Aveek  or  two  after  Christmas,  1832,  the  defendants  pro- 
ceeded to  complete  the  vessel,  and,  on  the  7th  of  February,  1833,  the 
plaintiffs  gave  the  following  notice  to  the  defendants,  addressed  to 
them  as  assignees  of  Brunton  :  — 

Messrs.  Clarke,  Phunmer,  &  Co.  having  been  informed  that,  in  finishing  the 
vessel  contracted  to  be  built  for  them  by  John  Brunton,  you  are  not  proceeding 
in  a  proper  and  sufficient  manner  and  according  to  the  terms  of  such  contract, 
we  do  therefore  give  notice  that  they  require  that  Mr.  Ileward,  the  person 
appointed  by  them  to  superintend  the  building  of  the  said  vessel,  shall  be  allowed 
to  inspect  and  superintend  the  same  accordingly;  and,  if  you  refuse  to  accede 
thereto,  and  the  said  vessel  should  be  found,  when  finished,  to  be  deficient  in  any 
respect  from  the  terms  of  the  said  contract,  they  will  hold  you  personally  re- 
sponsible for  such  deficiency. 


818  CLARKE   V.    SPENCE.  [CHAP.  II. 

On  March  1st,  1833,  when  the  third'  instalment  would  have  become 
payable  according  to  the  terms  of  the  contract,  if  no  alteration  had 
been  produced  by  the  bankruptcy,  £200,  as  the  balance  of  the  said  third 
instalment,  was  tendered  by  the  plaintiffs  to  the  defendants  and  by 
them  refused.  On  March  23d,  1833,  the  ship  was  launched.  A  bill  at 
three  months  for  £500,  as  for  the  fourth  instalment,  was  tendered  by 
the  plaintiffs  to  the  defendants,  and  refused.  The  defendants  after- 
wards sold  the  vessel  for  £2600.  Before  the  sale  was  completed,  the 
plaintiffs  tendered  to  the  defendants  £1750  (making  with  £1002  lis. 
paid  as  before  mentioned,  £2752  lis.)  in  payment  for  the  vessel,  and 
demanded  the  vessel  from  them,  which  they  refused.  It  was  admitted 
on  the  trial  that  the  vessel  was  never  of  greater  value  than  £2700. 

Heward,  the  person  appointed  under  the  agreement  to  superintend 
the  building  of  the  vessel,  was  called  as  a  witness  for  the  plaintiffs,  and 
stated  that  he  was,  during  the  building  of  the  said  vessel,  duly  author- 
ized by  them  to  superintend  the  building  on  their  behalf     That  he 
had  been  engaged  in  superintending  the  building  of  other  vessels,  as 
well  for  the  plaintiffs  as  other  persons,  in  Brunton's  and  in  other  ship- 
building yards.     He  proved  that,  when  the  pieces  of  timber  for  the 
vessel  were  ready  for  the  keel  stem  and  stern-post,  he  was  sent  for  by 
Brunton  to  look  at  them  previously  to  their  being  prepared  for  those 
purposes.    That  he  went  with  Brunton  and  inspected  them,  and,  when 
he  had  approved  of  them,  they  were  immediately  prepared  ;  and,  when 
they  were  ready  to  put  together,  he  attended  and  saAv  the  ram  set  up. 
That  Brunton  showed  him  the  plan  of  the  vessel  and  consulted  with 
him  thereon,  which  he  approved  ;  and  from  that  time  until  Brunton's 
failure,  he  attended  at  the  building  yard  daily,  to  inspect  and  super- 
intend the  work  on  behalf  of  the  plaintiffs.     That  three  or  four  times, 
or  more,  during  the  progress  of  the  work,  he  had  occasion  to  reject 
parcels  of  timber  and  other  things  that  were  about  to  be  put  into  the 
vessel,  on  account  of  their  insufficiency;  and  upon  his  making  objec- 
tion thereto  they  •  were   removed.     That  Brunton  once  persisted  in 
putting  a  timber  into  the  ship  which  Heward  had  objected  to,  on 
which  occasion  one  of  the  plaintiffs,  at  Heward's  instance,  attended 
and  insisted  on  its  being  removed,  and  it  was  by  Brunton's  orders 
removed  accordingly.     That  Heward  had  for  several  years  been  em- 
ployed to.  inspect  ships  for  various  persons  in  the  progress  of  the 
buildino-,  and  that  he  never  knew  an  instance  of  a  single  timber  or 
plank,  that  had  been  passed  by  him  and  fixed  in  the  vessel,  having 
been  afterwards  removed  by  the  builder,  or  timbers  approved  by  him  for 
buildino-  afterwards  used  by  the  buildei-,  unless  for  the  purpose  of  com- 
pletino-  the  vessel  under  his  inspection.     That,  after  Brunton's  failure, 
and  when  he  understood  the  defendants  were  proceeding  to  finish  the 
vessel,  he  attended  at  the  building  yard,  and  stated  that  he  had  come 
there  to  inspect  the  progress  of  the  work  on  behalf  of  the  plaintiffs,  as 


SECT,  v.]  CLARKE   V.    SPENCE.  819 

usual ;  this  ho  did  for  several  days,  until  he  -svas  ordered  off  tlie  prem- 
ises by  the  foreman,  at  the  instance  of  the  defendants. 

Evidence  was  offered  on  the  part  of  the  defendants,  that  the  vessel 
was  in  the  order  and  disposition  of  the  bankrupt  as  reputed  owner  at 
the  time  of  the  banki-uptcy,  which  evidence  was  rejected. 

The  questions  for  the  court  were,  Avhether,  under  the  circumstances 
above  stated,  the  i)laintiffs  were  entitled  to  maintain  trover?  If  they 
were,  the  verdict  was  to  be  entered  for  the  plaintiffs,  damages  £1002 
lis.  If  not,  a  nonsuit  to  be  entered.  Secondly,  whether  the  evidence 
as  to  reputed  ownershij:)  was  j^i'operly  rejected?  ^  If  so,  the  verdict  was 
to  stand ;  if  not,  there  was  to  be  a  new  trial.  This  case  was  argued  in 
last  Michaelmas  term.^ 

W.  11.  \Vatson.,  fur  the  ])laintiffs.  First,  under  the  agreement  of  July, 
1832,  referring  to  that  of  P""ebruary,  1832,  the  property  in  the  successive 
portions  of  the  vessel,  as  they  Avere  completed,  vested  in  the  plaintiffs. 
Brunton's  agreement  Avas,  not  to  furnish  the  plaintiffs  Avith  a  vessel  at 
a  given  date,  but  to  build  a  specific  and  particular  vessel,  to  be  paid  for 
at  intervals  as  the  work  went  on,  and  to  be  constructed  under  the 
superintendence  of  a  person  acting  on  the  plaintiffs''  behalf,  and  who 
was  to  approve  of  every  timber.  Woods  v.  Russell  ^  was  a  similar  case, 
and  the  words  of  Abbott,  C.  J.,  there  *  are  a  direct  authority  for  the 
plaintiffs.  "  This  ship  is  built  upon  a  special  contract,  and  it  is  part  of 
the  terms  of  tlie  contract,  that  given  portions  of  the  price  shall  be  paid 
according  to  the  progress  of  the  work;  part  Avhen  the  keel  is  laid;  [)art 
when  they  are  at  the  light  plank.  The  payment  of  these  instalments 
appears  to  us  to  appropriate  specifically  to  the  defendant  the  very  ship 
so  in  progress,  and  to  vest  in  the  defendant  a  property  in  that  ship ; 
and  that,  as  between  him  and  the  builder,  he  is  entitled  to  insist  upon 
the  completion  of  that  very  ship,  and  that  the  builder  is  not  entitled  to 
require  him  to  accept  any  other."  This,  indeed,  was  not  the  ground  on 
Avhich  the  case  Avas  decided;  but  the  opinion  of  the  Lord  Chief  Justice 
is  express.  He  distinguishes  the  case  from  MuckloAV  v.  Mangles,* 
"because  the  bargain  there  for  building  the  barge  does  not  appear  to 
have  stipulated  for  the  advances  Avhich  Avere  made,  and  those  advances 
do  not  appear  to  have  been  regulated  by  the  progress  of  the  Avork;" 
and  he  observes  that  the  opinion  of  Heath,  J.,  appears  to  have  been 
founded  on  the  notion  that  the  builder  Avas  not  obliged  to  deliver  the 
specific  barge,  but  might  have  substituted  another.  Here  that  could 
not  have  been  done.  Each  jiart  of  the  vessel,  as  it  was  approved  of  by 
HcAvard,  became  specifically  appropriated.     The  judgment  of  Abbott, 

1  So  mucli  of  tlie  argument  and  decision  as  relates  to  this  question  has  been 
omitted.  —  Ed. 

2  November  13th.  Before  Patteson,  Williams,  and  Coleridge,  JJ.  Lord  Denman, 
C.  J.,  was  absent,  being  unwell. 

3  5  B.  &  Aid.  942.  *  5  B.  &  Aid.  946.  »  1  Taunt.  318. 


820  CLAEKE   V.    SPENCE.  [CHAP.  II. 

C.  J.,  fovaiifled  upon  the  ai:)propriation  of  the  materials,  and  the  mode 
of  payment,  is  conformable  to  the  rule  of  law  laid  down  in  2  Bla.  Comm. 
448.  "  As  soon  as  the  bargain  is  struck,  the  property  of  the  goods  is 
transferred  to  the  vendee,  and  that  of  the  price  to  the  vendor ;  but  the 
vendee  cannot  take  the  goods,  until  he  tenders  the  price  agreed  on. 
But  if  he  tenders  the  money  to  the  vendor,  and  he  refuses  it,  the  ven- 
dee may  seize  the  goods,  or  have  an  action  against  the  vendor  for  de- 
taining them."  In  Atkinson  v.  Bell,-^  where  it  was  held  that  the  machines 
manufactured  for  the  defendants  did  not  become  their  property  without 
actual  delivery,  the  judgment  proceeded  on  the  want  of  any  specific 
appropriation  of  the  materials,  and  the  right  which  the  maker  had  over 
them  Avhile  the  work  was  in  progress.  Bayley,  J.,  there  said :  "  The 
case  of  Woods  v.  Russell  "-^  is  distinguishable.  The  foundation  of  that 
decision  was,  that  as  by  the  cbntract  given  portions  of  the  price  were 
to  be  paid  according  to  the  progress  of  the  work,  by  the  payment  of 
those  portions  of  the  price  the  ship  was  irrevocably  appropriated  to  the 
person  paying  the  money.  That  was  a  purchase  of  the  specific  articles 
of  which  the  ship  Avas  made."  In  Carruthers  v.  Payne,^  the  plaintiff 
ordered  a  chariot  to  be  built,  and  paid  for  it ;  and,  after  it  had  been 
finished  in  other  respects,  desired  to  have  a  fi-ont  seat  added ;  but  the 
order  not  being  performed,  he  sent  for  it,  and  the  builder  promised  to 
deliver  it.  The  builder  became  bankrupt;  his  assignees  seized  the 
chariot ;  and,  it  being  contended  that  trover  did  not  lie  at  the  suit  of 
the  plaintiff.  Best,  J.,  said :  "  If  the  article  in  dispute  had  rested  as  it 
was  immediately  after  the  bargain,  perhaps  there  might  be  ground  for 
the  objection,  and  the  case  might  fall  within  the  principle  of  the  deci- 
sion in  Mucklow  v.  Mangles ; "  ^  "  although,  if  a  case  precisely  the  same 
as  Mucklow  n.  Mangles  *  were  to  occur  again,  it  might  require  further 
consideration.  But  the  present  case  is  very  diflerent  from  that;  for 
here  both  the  builder  and  purchaser  treated  the  chariot  as  finished ;  the 
whole  of  the  price  was  paid,  and  the  plaintifi"  sent  for  it  several  times." 
Park,  J.,  also  doiibted  whether  he  should  adopt  the  decision  in  Muck- 
low V.  Mangles,^  if  such  a  case  were  to  occiir  again.  The  j^ resent  case, 
however,  falls  within  the  authority  of  all  those  cited ;  because  here,  by 
the  contract,  there  was  a  specific  appropriation  of  the  several  parts  as 
they  were  finished,  and  j^ayment  made  or  tendered  for  each  successively. 
The  payments  and  tender  left  the  assignees  no  lien.  It  may  be  said 
that,  when  the  third  instalment  was  due,  the  whole  £400  should  have 
been  tendered,  without  regard  to  the  £200  paid  in  advance ;  but  the 
payment  of  that  sum  to  the  bankruj)t  was  payment  to  the  assignees. 
Besides,  even  if  the  plaintifis  had  not  shown  a  suflicient  tender,  and 
demand  and  refusal,  it  is  immaterial,  because  there  was  a  direct  con- 
version by  selling  and  disposing  of  the  ship.  .  .  . 

1  8  B.  &  C.  277.  2  5  B.  &  Aid.  942. 

3  5  Bing.  270.  *  1  Taunt.  318. 


SECT,  v.]  CLARKE    V.   SPENCE.  821 

Coltman,  contra.  As  to  the  first  point,  Woods  v.  Russell,^  the  case 
chiefly  relied  upon  for  the  plaintiffs,  was  not  decided  on  the  ground 
staled  by  Abbott,  C.  J.,  in  the  passage  which  lias  been  cited  ;  the  deci- 
sion proceeded  on  the  fact  that  the  bankrupt  had  signed  a  certificate  to 
enable  the  defendant  to  have  the  ship  registered  in  his  own  name;  and 
in  the  subsequent  cases  in  which  Woods  v.  Russell  ^  is  referred  to,  this 
is  always  pointed  out.  Battersby  v.  Gale  and  others,-  in  which  this 
court  refused  a  rule  nisi  for  a  new  trial  in  Easter  term,  1833,  is,  to  some 
extent,  an  authority  on  the  present  question.  In  that  case  the  motion 
was  grounded  on  the  judgment  of  Abbott,  C.  J.,  in  Woods  v.  Russell; 
but  it  is  evident,  from  the  intimation  of  opinion  then  given,  that,  if  a 
decision  had  been  necessary,  the  law  laid  down  in  that  judgment  would 


1  5  B.  &  Aid.  942. 

2  Tliis  was  an  action  of  trover  against  the  assignees  of  Brunton,  a  bankrupt,  for 
an  unfinished  ship.     At  tlie  trial  before  Gurney,  B.,  at  the  Lancaster  spring  assizes, 
1833,  it  appeared  that  Brunton  had  contracted  with  the  plaintiffs  to  build  them  a  ship 
(under  tlie  inspection  of  their  agent)  for  a  certain  price,  wliich  was  to  be  paid  by 
instalments,  three  of  the  instalments  as  the  work  proceeded,  and  the  last,  which  was 
much  larger  than  the  others,  when  the  ship  was  launched  and  complete.     After  the 
first  instalment  had  become  due,  part  of  the  ship  being  finished,  the  plaintifts  paid 
Brunton  on  account  .£1000,  which  more  than  covered  the  first  instalment.     Brunton 
became  bankrupt  before  the  second  instalment  was  due.     The  plaintifi's  demanded 
the  frame  of  the  ship,  alleging  that  the  sum  they  had  paid  beyond  the  first  instalment 
bore  the  same  proportion  to  the  second  instalment  as  the  work  completed  since  the 
first  instalment  was  payable  bore  to  the  work  which  should  have  been  done  since  the 
first  instalment  became  payable,  to  make  the  second  instalment  payable.    The  defend- 
ants refused  to  give  up  the  frame,  alleging  that  the  whole  work  done  was  worth  more 
than  .£1000.     Evidence  of  value  was  given  on  both  sides.     The  learned  judge  left  it 
to  the  jury  whether  the  ship,  in  the  state  she  was  in  when  the  work  stopped,  was  or 
was  not  worth  more  than  £1000.     The  jury  were  of  opinion  that  she  was  at  that 
time  worth  £110*2,  and,  under  the  learned  judge's  direction,  they  found  a  verdict 
for  the  defendants.     In  the  next  term  (April  16th),  Wightman  moved  for  a  new  trial 
on  the  ground  of  misdirection,  contending  that  the  true  question  for  the  jury  was, 
whether  the  amount  paid  beyond  the  first  instalment  was  or  was  not  proportionate 
to  the  work  done  since  that  instalment  was  payable,  reference  being  had  to  the  con- 
tract price,  and  not  to  actual  value  ;  and  he  cited  the  passage  referred  to  in  the  text 
from  the  judgment  of  Abbott,  C.  J.,  in  Woods  r.  Kussell,  5  B.  &  Aid.  916,  and  Atkin- 
son V.  Bell,  8  B.  &  C.  277,  as  recognizing  the  law  there  laid  down,  which,  he  con- 
tended,  was  applicable  to  the  present  case.      Parke,  J.,  observed  that,  unless  the 
instalments  were  exactly  adjusted  to  the  value  of  the  several  parts  of  the  work  upon, 
the  completion  of  which  they  were  to  become  payable,  it  might  be  that,  when  an 
instalment  became  due,  the  work  then  finished  might  be  worth  more  tlian  the  instal- 
ment;  and  he  asked  whether,  in  that  case,  the  ship-buiklcr  would  not  have  a  lien  for 
the  excess  ?     To  which  Wightman  answered  that,  if  that  were  so,  still  the  amount 
for  which  the  lien  attached  must  be  regulated  l)y  the  contract  price  ;  whereas  this 
case  had  gone  to  the  jury  ujion  the  question  of  general  value.     The  court   (Lord 
Denman,  C.  J.,  Littledale,  Parke,  and  Patteson,  JJ.)  took  time  to  confer  with  Gurney, 
B. ;  and  in  the  same  term,  April  26,  Lord  Denman,  C.  J.,  said  that  the  learned  judge 
had  reported  to  the  court  that  the  ground  upon  which  the  case  was  put  in  moving 
had  not  been  taken  at  the  trial ;  and  consequently  the  rule  was  refused. 

VOL.  1.  63 


822  CLARKE   V.    SPENCE.  [CHAP.  II. 

not  have  been  fully  recognized;  for  it  was  asked  whether,  if  the  instal- 
ment paid  had  been  less  than  the  value  of  the  work  upon  the  perform- 
ance of  which  that  instalment  was  payable,  the  builder  Avould  not  have 
had  a  lien  for  the  residue.    If  that  were  so,  the  purchaser  could  not,  by 
paying  the  instalments,  acquire  the  property  in  the  successive  portions 
of  the  ship,  unless  the  amount  of  each  instalment  precisely  equalled  the 
value  of  the  corresponding  portion  of  the  work.      If  Woods  v.  Russell 
had  been  a  clear  authority  on  the  point  now  in  question,  Goode  v.  Lang- 
ley  ^  might  have  been  decided  on  the  ground  that  the  gig  seized  in  that 
case  had  become  the  plaintiff's  property  before  it  was  taken  by  the 
sheriff;   but  the  court  declined  entering  upon  that  point.     [Patte- 
SON,  J.     In  that  case  there  was  no  arrangement,  as  here,  for  paying  by 
instalments.    The  present  case  is  put  by  the  plaintiffs  as  if  the  ship  were 
several  ships,  or  several  parcels  of  goods,  and  the  property  in  each 
vested  as  the  instalment  was  paid.    Then,  after  an  instalment  had  been 
paid,  a  part  of  the  ship,  which  was  complete,  would  be  vested  in  the 
plaintiffs ;  and  a  part,  which  was  being  completed,  in  the  bankrupt.    It 
would  seem  that  they  would  be  tenants  in  common.]    The  parties  here 
contemplated  an  entire  contract.     The  plaintiffs  wished  to  have  a  com- 
plete ship ;  and  this  mode  of  payment  was  arranged  for  the  mutual 
accommodation  of  the  parties,  and  not  with  the  view  of  appropriating 
parts  of  the  work  as  it  went  on.    With  the  property  a  risk  would  pass ; 
and  it  is  not  to  be  supposed  that  the  plaintiffs  meant  to  incur  that  risk 
before  they  received  the  ship.    The  appointing  of  a  superintendent  was 
only  to  secure  the  plaintiffs  against  the  putting  in  of  bad  materials  as 
•the  work  proceeded.   Abbott,  C.  J.,  said,  in  Woods  y.  Russell,-  that  the 
payment  by  instalments  had  the  effect  of  specifically  appropriating  the 
v;ery  ship  in  progress ;  bnt,  supposing  the  parts  to  be  so  appropriated, 
it  does  not  follow  that  the  property  in  them  passed.     There  may  be  an 
ao-reement  to  appropriate  particular  materials  to  a  work ;  and,  after  the 
work  has  been  executed  to  a  certain  extent  with  those  materials,  the 
purchaser  may  be  entitled  to  bring  an  action  if  he  is  deprived  of  them ; 
but  yet  the  property  may  not  vest  in  him  as  the  work  proceeds.     If  it 
does,  at  what  time  does  the  vesting  take  place?     Does  each  stick  of 
timber  become  the  property  of  the  plaintiffs  as  it  is  put  in  ?    Or  does  a 
property  pass  in  each  distinct  portion  of  the  frame  as  it  is  completed  ? 
[  Watson.     The  plaintiffs  say  that  each  particular  portion  of  the  ship 
passed  to  them  as  it  was  completed.     As  a  stick  of  timber  was  put  in, 
that,  and  the  whole  ship  with  it,  so  far  as  the  work  was  completed, 
became  their  property.    The  effect  of  the  payments  was  only  to  devest 
the  builder's  lien.     Coleridge,  J.     Then  you  argue  that  the  property 
passed  independently  of  any  payment  of  instalments.]    If  the  property 
in  each  piece  of  timber  passes  at  the,  time  when  it  is  put  in,  at  what 

1  7  B.  &  C.  26,  2  5  B.  &  Aid.  946. 


SECT.  Y.]  CLARKE   V.    SPENCE.  823 

price  does  it  pass?  At  the  market  price  of  the  day?  That  may  be 
very  different  from  the  artificial  value  (if  it  may  be  so  termed)  wliich 
the  piece  acquires  from  tlie  use  made  of  it  in  the  work.  Or  will  it  be 
said  that,  as  the  value  of  the  whole  ship  is  to  tlie  value  of  the  particu- 
lar piece  of  wood,  so  shall  the  whole  price  be  to  the  price  of  the  piece 
of  wood  ?  But  this  is  not  the  contract  of  tlie  ]iartics.  To  apply  the 
question  more  particularly  to  the  present  case  :  The  value  of  the  frame, 
as  it  stood  between  the  times  for  payment  of  the  second  and  third  in- 
stalments, was  £1C00.  Did  the  property  vest  in  the  plaintiffs  at  that 
price?  If  so,  it  became  afterwai'ds  vested  at  a  different  price;  for, 
when  the  third  instalment  became  due,  the  builder  was  entitled  to  only 
£1200.  And,  if  the  })laintiffs  could  not  then  have  demanded  the  frame 
without  a  tender  of  the  remaining  £400,  it  cannot  consistently  be  said 
that  the  plaintiffs  acquired  the  right  of  property  on  paying  the  instal-. 
ment.  If  the  passage  cited  from  2  Bla.  Comni.  448  were  ajtjjlicable, 
the  property  in  so  much  of  the  work  as  might  from  time  to  time  be 
done  would  pass  as  soon  as  the  contract  was  made;  the  instalments 
might  be  dismissed  from  consideration,  and  the  supposed  authority  of 
Woods  V.  Russell^  would  be  unnecessary.  [Pattesox,  J.  In  that 
passage  Blackstone  is  speaking  of  a  sale  of  goods,  not  a  contract  for 
work.]  As  no  property  vested  in  this  case  during  the  progress  of  the 
work,  no  question  could  arise  as  to  lien,  nor  can  the  payments  be  ac- 
counted for  as  intended  to  devest  it.  Suppose  the  bankrupt  had, 
between  the  times  for  paying  the  first  and  the  second  instalment,  re- 
fused to  complete  the  work ;  if  the  plaintiffs  had  then  required  liim  to 
deliver  so  much  as  was  completed,  he  could  not  have  insisted  on  his 
lien.  The  plaintiffs  might  have  said  :  "  You  have  a  right  to  detain  the 
work  for  the  purpose  of  finishing  it ;  but,  unless  you  finish  it,  you  can 
have  no  right  to  hold  it  on  a  claim  of  lien."  The  assignees  can  have 
no  right  which  the  bankrupt  would  not  have  had,  except  that  they  may 
repudiate  the  contract.  But,  so  doing,  they  can  have  no  lien.  If  they 
could,  they  Avould  also  have  a  right  of  action  for  the  money ;  but  an 
assignee  cannot  renounce  the  conti'act,  and  yet  sue  in  respect  of  the 
work  done.  It  is  true  that  in  Woods  y.  Russell  ^  the  assignees  were 
held  entitled  to  recover  a  portion  of  the  foui'th  instalment,  though  the 
work  had  not  been  completed ;  .but  the  court  there  thought  the  non- 
completion  waived  by  the  act  of  the  defc'ndant.  The  rule  in  the  case 
of  sales  is  that,  while  any  thing  remains  to  be  done  by  the  seller  before 
the  goods  are  in  a  deliverable  state,  the  property  shall  not  pass.  Rugg 
V.  Minett,''  Simmons  v.  Swift,*  Tarling  v.  Baxter.^  And  it  is  reasonable 
that  the  property,  which  carries  with  it  the  risk,  should  not  be  held  to 
pass  while  any  thing  remains  to  be  done  by  the  seller.     The  rule  thus 

1  5  B.  &  Aid.  942.  2  5  ]p.  &  Aid.  942.  »  11  East,  210. 

*  5  B.  &  C.  857.  8  6  B.  &  C.  360. 


824  CLARKE  V.    SPENCE.  [CHAP.  11. 

recognized  with  respect  to  goods  sold,  applies  a  fortiori  m  a,  case  like 
the  present,  where  the  property  is  changing  in  its  nature,  and  increas- 
ing in  value  while  it  remains  in  the  workman's  hands.  [Coleridge,  J. 
You  may  be  assuming  too  much  in  supposing  that  the  risk  remains 
with  the  builder  while  the  ship  is  undelivered.  If  the  ship  had  been 
burnt,  could  the  plaintiffs  have  recovered  back  the  instalments?]  It  is 
perhaps  not  material  to  contend  so.  ,  .  . 

W.  H.  Watson,  in  reply.  In  Woods  v.  Russell  the  certificate  Avas  one 
only  of  many  circumstances  from  which  the  court  held  that  the  property 
vested.  Here  the  terms  of  the  contract,  and  the  mode  of  payment,  show 
that  the  parties  intended  the  property  to  pass.  Abbott,  C.  J.,  said  there, 
"  The  payment  of  these  instalments  appears  to  us  to  appropriate  specifi- 
cally to  the  defendant  the  very  ship  so  in  progress,  and  to  vest  in  the 
defendant  a  property  in  that  ship."  [Patteson,  J.  With  great  respect 
to  the  authority  of  Lord  Tenterden,  I  should  say  that  that  expression  is 
inaccurate.  As  that  case  Avas  put,  it  could  not  be  necessary  that  a  second 
instalment  should  be  paid,  to  make  the  property  vest.]  By  the  con- 
tract here,  the  plaintiifs  were  to  pay  for  a  particular  ship  which  was  in 
progress.  The  identical  ship  was  to  be  delivered.  The  payments  were 
to  be  made  for  the  parts  of  that  ship  ;  if  she  had  been  burnt  Avhile  build- 
ing, the  plaintifis  could  not  in  any  form  of  action  have  recovered  back  the 
sums  advanced.  If  the  builder  had  withdrawn  that  ship  and  substituted 
another,  it  Avould  not  have  been  a  completion  of  his  contract.  The 
doctrine  laid  down  in  Woods  v.  Russell  ^  is  not  the  opinion  of  the  Lord 
Chief  Justice  alone,  but  that  of  the  whole  court.  In  Goode  v.  Langley,^ 
Parke,  J.,  then  at  the  bar,  admitted  in  argument  that  the  doctrine  in 
question  Avas  established  by  Woods  v.  Russell.  Battersby  v.  Gale  is 
consistent  Avith  the  argument  for  the  plaintiifs.  A  property  had  passed 
on  part  of  the  vessel  being  finished,  but  there  was  a  lien  for  work  done 
since  the  instalment  had  been  paid ;  and  the  question  Avas  how  the 
amount  of  that  lien  should  be  estimated.  Here  the  defendants  argue, 
in  effect,  that  the  remedy  of  the  plaintiffs,  if  the  Avork  Avas  not  com- 
pleted, was  for  a  breach  of  contract,  and  not  for  a  conversion.  But 
that  is  not  so.  If  the  bankrupt  had  refused  to  complete  the  work, 
the  plaintifis  might  have  taken  possession,  and  finished  it  for  themselves 
without  making  any  tender.  Any  question  of  price,  at  a  time  betAveen 
the  periods  fixed  for  paying  the  instalments,  might  be  satisfactorily  set- 
tled by  a  jury.  The  builder  and  the  plaintifis  Avere  not  tenants  in  com- 
mon. As  soon  as  the  property  in  any  part  of  the  ship  vested,  the  rest 
of  the  work  done,  and  not  paid  for,  Avas  only  work  done  on  the  plain- 
tiffs' chattel.  In  Rugg  v.  Minett,^  and  other  cases  of  that  class,  the 
rio-ht  of  the  purchaser  Avas  incomplete  till  there  had  been  a  specific 
appropriation;  here  the  article  was  appropriated,  and  vested  in  the 
plaintiffs  as  the  work  went  on,  by  fore?  of  the  contract. 

Cur.  adv.  vult. 

1  5  B.  A  Aid.  946.  2  7  B.  &  C.  26.  s  n  East,  210. 


SECT,  v.]  CLARKE    V.   SPENCE.  825 

Williams,  J.,  in  tliis  term  (February  1st)  delivered  the  judgment  of 
the  court.  The  principal  question  raised  by  this  case  is,  in  whom, 
under  the  special  terms  of  tlie  contract  entered  into  between  the 
plaintiffs  and  the  bankrupt,  John  Brunton,  the  general  property  in  so 
much  of  the  vessel  as  had  been  put  together  at  the  time  of  the  bank- 
ruptcy was  vested. 

All  consideration  of  any  special  property  which  might  be  in  the 
bankrupt,  by  reason  of  a  lien  for  moneys  expended  on  the  vessel, 
accordintr  to  the  doctrine  laid  down  in  Woods  u.  Russell,^  is  removed 
from  the  case  by  the  tender  of  all  such  moneys  which  has  been  made 
by  the  plaintiffs;  and  we  desire  it  to  be  distinctly  understood  that,  in 
the  judgment  Avhich  we  are  about  to  pronounce,  we  give  no  opinion 
whatever  as  to  the  soundness  of  that  doctrine. 

On  the  part  of  the  plaintiffs,  it  was  not  denied  in  argun^nt,  nor 
could  be  according  to  decided  cases,  Mucklow  v.  Mangles,-  Simmons 
V.  Swift,^  Rohde  v.  Thwaites,^  Goode  v.  Langley,^  Atkinson  v.  Bell,® 
Carruthers  v.  Payne,''  and  known  principles  of  law,  that,  in  general, 
under  a  contract  for  the  building  a  vessel,  or  making  any  other  thing 
not  existing  in  specie  at  the  time  of  the  contract,  no  property  vests  in 
the  party  whom,  for  distinction,  we  will  call  the  purchaser,  during  the 
progress  of  the  work,  nor  until  the  vessel    or  thing  is  finished  and 
delivered,  or  at  least  ready  for  delivei;y  and   approved  by  the  pur- 
chaser;   and  that,  even  where  the  contract  contains  a  specification  of 
the  dimensions  and  other  particulars  of  the  vessel  or  thing,  and  fixes 
the  precise  mode  and  time  of  payment  by  months  and  days.     The 
builder  or  maker  is  not  bound  to  deliver  to  the  pui'chaser  the  identical       \ 
vessel  or  thing  which  is  in  progress,  but  may,  if  he  please,  dispose  of       1 
that  to  some  other  person,  and  deliver  to  the  purchaser  another  vessel 
or  thing,  provided  it  answers  to  the  specification  contained  in  the  con- 
tract.    But  it  is  urged  on  the  authority  of  Woods  v.  Russell,®  that, 
where  the  contract  provides,  as  that  in  question  does,  that  a  vessel 
shall  be  built  under  the  superintendence  of  a  person  .aX'pQii}ted  ,^;'y, the  _, 
purchaser,   and  also  'fixes  tlie'  paynuiit   bv  instalments,  I'eSLLl-ited ^1h^^„ 
nai-ticular  sta2;es  m  the  progress  of  tlie  work,  the  general  property  in 
all  tlie  ])lanks  and  other  things  used  in  the.  progress  of  the  work  vests 
in  the  puichaser  at  the  time  Avhen  they  arc  put  to  the  fabric  under  the* 
approval  of  the  superintendent ;  or,  at  all  events,  as  soon  as  the  first 
instalment  is  paid.     The  ficts  in  the  case  of  Woods  v.  Russell  did  not 
make  it  necessary  to  determine  this  point ;  neither  did  the  decision  of 
the  court  proceed  ultimately  on  any  such  point,  but  on  the  ground  that 
the  vessel,  by  virtue  of  the  certificate  of  the  builder,  had  been  regia- 

1  5  B.  &  Aid.  942.  2  1  Taunt.  318. 

s  5  B.  &  C.  857.  -•  6  B.  &  C.  388.  &  7  B.  &  C.  26. 

6  8  B.  &  C.  277.  1  5  Bini?.  270.  8  5  B.  &  Aid.  94G. 


826  CLARKE   V.   SPENCE.  [CHAP.  II. 

tered  in  the  name  of  the  purchaser,  and  that  the  builder  had,  by  his 
own  act,  declared  the  general  property  to  be  in  the  pvirchaser.  This 
appears  both  by  the  judgment  itself^  and  by  the  notice  taken  of  it  by 
Lord  Tenterden  in  the  last  edition  of  his  book  on  Shipping,  page  44. 
But  there  is  a  passage  in  the  course  of  that  judgment  which  goes 
strongly  to  establish  the  point  contended  for  by  the  learned  counsel 
for  the  plaintiffs ;  and,  though  the  opinion  expressed  in  that  passage  is 
exti-a -judicial,  yet,  considering  that  time  was  taken  before  the  judg- 
ment was  pronounced,  and  the  very  great  learning  of  those  by  whom 
it  was  pronounced,  we  should  certainly  hesitate  very  much  before  we 
could  come  to  any  conclusion  contrary  to  that  opinion.  The  passage 
is  as  follows:  [His  Lordship  then  read  the  passage  cited,  ante, 
p.  819.] 

If  it  be  intended  in  this  passage  that  the  specific  appropriation  of 
the  parts  of  a  vessel  while  in  progress,  however  made,  of  itself  vests 
the  property  in  the  person  who  gives  the  order,  the  proposition  in  so 
general  a  form  may  be  doubtful. 

It  seems  to  be  clear  that,  as,  by  the  contract,  the  vessel  was  to  be 
built  under  a  superintendent  appointed  by  the  purchaser,  the  builder 
could  not  compel  the  purchaser  to  accept  any  vessel  not  constructed 
of  materials  approved  by  the  superintendent ;  and,  on  the  other  hand, 
that  the  purchaser  could  not  refuse  any  vessel  which  had  been  so  ap- 
proved. It  follows  that,  as  soon  as  any  materials  have  been  approved 
by  the  superintendent  and  used  in  the  progress  of  the  work,  the  fobric 
consisting  of  such  materials  is  appropriated  to  the  purchaser ;  other- 
wise the  supei'intendent  might  be  called  upon,  Avhen  one  vessel  had  been 
nearly  constructed,  to  begin  his  Avork  de  7iovo,  and  superintend  the 
building  of  a  second :  and,  in  this  point  of  view,  the  appointment  of  a 
superintendent,  by  the  contract,  appears  to  be  of  considerable  impor- 
tance. As  soon  as  the  last  of  the  necessary  materials  is  approved  and 
added  to  the  fabric,  the  vessel  is  complete ;  the  ajjpropriation  is  com- 
plete ;  and,  assuredly,  the  general  property  in  the  vessel  must  vest  in 
the  purchaser,  nothing  remaining  to  be  done  prior  to  the  delivery ;  and 
this  is  agreeable  to  the  current  of  all  the  authorities,  most  of  which 
have  been  cited  above. 

Until,  however,  the  last  of  the  necessary  materials  be  added,  the 
vessel  is  not  complete ;  the  thing  contracted  for  is  not  in  existence : 
for  the  contract  is  for  a  complete  vessel,  not  for  parts  of  a  vessel ;  and 
we  have  not  been  able  to  find  any  authority  for  saying  that,  whilst  the 
thing  contracted  for  is  not  in  existence  as  a  whole,  and  is  incomplete, 
the  general  property  in  such  parts  of  it  as  are  from  time  to  time  con- 
structed shall  vest  in  the  purchaser,  except  the  above  passage  in  the 
case  of  Woods  v.  Russell.^ 

J  5  B.  &  Aid.  946. 


SECT,  v.]  CLARKE   V.    SPENCE.  827 

Granting  therefore  that,  under  such  .1  contract  as  this,  the  parts  of 
the  vessel,  as  tliey  are  added  to  tlie  fabric,  are  appropriated  to  tlie  pur- 
chaser by  way  of  contract,  so  that  neitlier  could  lie  refuse  them  when 
the  vessel  should  be  completed,  nor  the  builder  compel  him  to  accept 
any  other,  yet  it  does  not  necessarily  follow  that  such  approjiriation 
vests  the  ])roperty  in  the  purchaser  until  the  Avhole  thing  contracted 
for  is  in  existence,  that  is,  until  the  completion  of  the  vessel.  ])ut,  in 
the  passage  under  discussion,  the  payment  under  the  contract  is  relied 
on  as  the  most  material  point,  the  a])propriation  being  effected,  as  it 
is  said,  by  that  payment ;  and  accordingly,  in  Atkinson  v.  Bell,^  Mr. 
Justice  Bayley,  in  alluding  to  Woods  v.  Russell,-  says,  "that  as  by  the 
contract  given  portions  of  the  price  were  to  be  paid  according  to  the 
progi-ess  of  the  work,  l)y  the  payment  of  those  i)ortions  of  the  price 
the  ship  was  irrevocably  a])propriated  to  the  person  paying  the  money. 
That  was  a  purchase  of  the  specific  articles  of  which  the  ship  was 
made." 

Now  it  is  to  be  observed,  in  regard  to  the  payment  which  is  relied 
on  in  these  passages,  that,  where  an  actual  delivery  has  taken  i)lace, 
payment  is  wholly  immaterial  to  the  vesting  of  the  property ;  and 
further,  that,  by  the  modern  doctrine  and  the  cases  above  alluded  to, 
in  order  to  vest  the  property  in  goods  under  contracts  of  sale,  it  is 
only  necessary  that  the  identical  goods  which  are  the  subject  of  the 
contract  should  be  ascertained,  and  the  price  fixed  ;  and  Avhen  those 
things  are  done  the  general  property  vests  by  the  contract  before 
actual  delivery;  and  the  payment  of  the  price  is  quite  immaterial  for 
that  purpose.  Whether  that  modern  doctrine  be  founded  on  a  miscon- 
ception of  the  civil  law  or  not,  we  do  not  think  it  necessary  or  proper 
to  discuss:  the  doctrine  has  been  clearly  laid  down  and  acted  on  for 
many  years,  and  ought  not  to  be  lightly  disturbed;  nor  docs  this  case 
turn  upon  that  doctrine.  A  doubt  may  exist  whether  such  a  contract 
as  the  present  be  properly  a  contract  of  buying  and  selling;  but, 
assuming  it  to  be  so,  and  we  have  so  treated  it  for  this  purpose,  the 
requisites  to  the  vesting  of  the  general  property  under  the  contract 
are  clear.  The  payment  of  the  instalments  may  indeed  be  evidence  x 
that  the  purchaser  has  ajjproved  of  the  fabric  so  far  as  it  has  been  con-  ] 
structed,  and  may  therefore,  as  it  were,  ratify  the  ajipropriation  made  '. 
by  the  builder;  but  in  itself  it  can  operate  nothing,  unless  it  be 
by  the  contract  made  a  condition  jirecedent  to  the  vesting  of  the  j 
property. 

It  is  not  so  made  by  the  contract  in  question  in  express  terms; 
neither  was  it  in  the  case  of  Woods  v.  Russell;^   but  we  apprehend 
that  the  passage  above  cited  from  the  judgment  in  that  case  is  founded 
1  8  B.  &  C.  282.  2  5  B.  &  Aid.  942.  3  5  B.  &  Aid.  946. 


828  CLARKE    V.    SPENCE.  [CHAP.  11. 

on  the  notion  that  provision  for  the  payment  regulated  by  particular 
stages  of  the  -work  is  made  in  the  contract,  with  a  view  to  give  the 
purchaser  the  security  of  certain  portions  of  the  work  for  the  money 
he  is  to  pay,  and  is  equivalent  to  an  express  provision  tliat  on  payment 
of  the  first  instalment  the  general  property  in  so  much  of  the  vessel 
as  is  then  constructed  shall  vest  in  the  purchaser.  If  this  notion  be 
correct,  the  payment  is  no  doubt  material  to  the  vesting  of  the  prop- 
erty, and  the  effect  of  such  payment  is,  that  there  is  not  only  an  appro- 
priation of  so  much  of  the  vessel  as  is  then  constructed,  but  also  a 
vesting  of  the  general  property  in  so  much  in  the  purchaser,  subject 
to  the  right  of  the  builder  to  retain  it  in  order  to  complete  it,  and  earn 
the  rest  of  the  price.  The  rights  of  the  parties  will  then  be  in  the 
same  state  as  if  so  much  of  the  vessel  as  is  then  constructed  had 
originally  belonged  to  the  purchaser,  and  had  been  delivered  by  him  to 
the  builder  to  be  added  to  and  finished  ;  and  it  will  follow  that  every 
plank  and  article  subsequently  added  will,  as  added,  become  the  prop- 
erty of  the  purchaser  as  general  owner. 

Several  reasons  may  perhaps  be  adduced  to  show  that  the  more 
obvious  intention  to  be  collected  from  the  terms  of  this  contract  is 
that,  the  builder  requiring  advances  of  money  in  the  progress  of  an 
expensive  work,  the  purchaser  is  contented  to  make  such  advances, 
provided  he  sees  the  work  in  such  a  state  of  progress  as  that  he  may 
calculate  on  having  an  equivalent  for  his  money  within  a  reasonable 
time ;  and  therefore  he  stipulates  that  his  advances  shall  be  made  at 
specified  stages  of  the  work. 

But,  even  if  this  be  the  more  obvious  intention,  it  by  no  means  fol- 
lows that  the  view  taken  of  the  contract  by  the  court  in  Woods  v. 
KusselP  is  not  correct;  for  the  intention  there  supposed  is  not  in  any 
respect  inconsistent  with  that  which  is  above  suggested ;  both  may 
Avell  exist  at  the  same  time :  and  though,  if  it  were  the  intention  of 
the  contracting  parties  that  the  general  property  should  vest  in  the 
manner  supposed,  such  intention  might  have  been  expressed  in  less 
ambiguous  terms,  yet,  if  it  can  fairly  be  collected  from  those  which 
have  been  used,  there  is  nothing  either  in  principle  or  in  jjractice  to 
prevent  the  court  from  carrying  it  into  effect. 

On  the  contrary,  as  such  a  construction  has  been  put  on  a  similar 
contract  by  so  high  an  authority  in  the  case  of  Woods  v.  Russell,^ 
which  as  to  this  point  in  particular  has  been  subsequently  recognized, 
and  as  that  construction  has  probably  been  acted  upon,  since  that  de- 
cision, by  persons  engaged  in  ship-building,  we  feel  that  we  ought  not 
to  depart  from  such  construction;  and  we  adopt  the  opinion  of  the 
court  in  Woods  v.  Russell,  though  with  some  hesitation  for  the  reasons 
above  assigned,  .  .  . 

1  5  B.  &  Aid.  942.  2  5  B.  &  Aid.  946. 


BECT.  v.]  TRIPP    V.    ARMITAGE.  829 

U])on  the  whole,  we  are  of  opinion  that  the  phiintiffs  are  entitled  to 
maintain  this  action  of  trover,  and  that  the  verdict  must  be  entered 
for  them  for  the  sum  stated  in  the  case,  viz.,  £1002  lis. 

Verdict  to  be  entered  as  above. 

TRIPP  AiTO  Others,  Assignees  o/ Bennett,  a  Bankrupt^  v.  ARMI-^'       '^ 

TAGE  AND  Others.  'J  j  c/T  /^ -"^^ ^'  c<?^ 

In  the  Exchequer,  Hilary  Term,  1839.  ^^''■^  '^^ y'^'''  :^ 

"^  [Reported  in  4  Meeson  A-  Welsbu,  687.]  /^  '^   _y'  ^ 

^"^^i^  Trover  for  deal  sashes,  linings,  shutters,  boards,  and  other  building      -  - 

>^         materials.     Pleas,  first,  except  as  to  certain  doors,  linings,  boards,  &c., 
!^         specified  in  the  plea,  not  guilty;  secondly,  as  to  the  causes  of  action  to  ,  /  ?^-^  /^ 
"^         Avhich  the  first  plea  Avas  pleaded,  that  the  plaintiffs  were  not  possessed  ^ 

V   ^         of  their  own  property  as  assignees  of  the  goods  and  chattels  to  which'Ov^  ^^ 
jH.         the  first  plea  was  pleaded,  or  any  part  thereof,  in  manner  and  form,  &c. ;  ^^^^ 
"^  thirdly,  as  to  the  causes  of  action  relating  to  the  conversion  of  the  '*' 

g         goods  aijd  chattels  particularly  mentioned  in  and  excepted  by  the  first  r/^^^/^ 
j  ^       ^  plea,  payment  into  court  of  £129,  which  the  plaintiffs  took  out  of  court /^ 
N      ^'in  discharge  of  those  causes  of  action.     At  the  trial  before  Lord  Abin-  ^^^/^ 
^       il  g6''?  C.  B.,  at  the  last  Gloucestershire  assizes,  the  following  appeared  to  ^ 

Vj    1^  be  the  facts  of  the  case :  —  ,/^^w>/ 

^vi    1^       In  the  year  1837,  a  company  was  formed  for  the  erection  of  a  new  hotel  _^ 

^^    ^  in  Cheltenham,  and  a  deed  Avas  executed  for  regulating  the  affairs  of  the '        /  '^ 
X(S;    \   company,  by  which  the  defendants  were  appointed  trustees.    Advertise- j^j^2^^:^>*- 
\^  '^  meats  havins;  been  issued  for  tenders  for  buildincj  the  hotel,  the  bankrupt, 

Bennett,  who  then  carried  on  business  as  a  builder  and  timber-merchant  '^>         ■^ 
in  Cheltenham,  sent  in  a  tender,  and  entered  into  a  written  contract    ^^^^^^ 
with  the  defendants,  therein  described  as  trustees  of  the  Cheltenham   ,  . 

Hotel  Company,  dated  3d  March,  1837;  by  which,  after  reciting  that  ,!7^^^.^- 
Messrs.  Churchill  &  Mallory  had  agreed  to  do  the  smith's  and  iron-  ..^^  ^ 
mongery  work,  and  Mark  Barrett  the  painting,  ])lun\bing,  and  glazing,  %^  y  >^ 
by  agreements  of  even  date  therewith,  and  that  Bennett  bad  agreed  to  ~y^  1? 
do  all  the  Avork,  save  as  aforesaid,  at  the  price  of  £15,381  ^s.  4c?. ;  it  ''^ 

Avas  AAdtnessed  that  Bennett  thereby  covenanted  for  himself,  his  heirs,   •^^.' 
executors,  and  administrators,  Avith  the  defendants,  that  he  Avould  build 
the  hotel  (except  as  aforesaid),  and  render  the  same  fit  for  habitation,    ^  ^ly 
to  the  satisfaction  of  R.  W.  Jearrad  (the  architect  employed  by  the  '^'^'"'^^^i^^ 
defendants),   by  the  times   therein   mentioned    (enumerating   various  /<r>  ^ 
times  by  Avhich  specified  portions  of  the  Avork  Avere  to  be  completed) ; 
that,  should  Bennett  neglect  to  complete  any  one  portion  of  the  Avork  ^^  ^^ 


f/^/^ 


<^ 


830  TRIPP    V.    ARMITAGE.  [CHAP.  II- 

by  the  time  therein  appointed,  or  several  portions  of  the  works  by  the 
times  therein  respectively  appointed,  he  should  forfeit  and  pay  the  sura 
of  £250  as  liquidated  damages,  and  the  defendants  should  be  entitled 
to  set  it  off,  &c.     The  agreement  then  contained  the  following  clause : 
"  And  furtlier,  that,  should  the  said  T.  H.  Bennett,  his  executors  or 
administrators,  at  any  time  or  times,  omit  to  go  on  Avith,  or  neglect  to 
do  the  said  works,  matters,  and  things  hereby  agreed  to  be  done  by 
him,  so  expeditiously  as  he  might  do  in  the  judgment  of  the  said  R. 
W.  Jearrad,  or  the  said  architect  of  the  said  company  for  the  time 
being,  or  in  case  the  said  T.  H.  Bennett  should  become  bankrupt,  or 
insolvent,  or  being  arrested  should  go  to  gaol,  before  the  said  work 
should  be  completed  and  finished,  then  and  in  any  or  either  of  such  cases, 
it  should  and  might  be  lawful  to  and  for  the  said  trustees,  their  heirs 
or  assigns,  to  take  possession  of  the  Avork  then  already  done  by  the  said 
T.  H.  Bennett,  and  to  avoid  and  put  an  end  to  that  agreement;  and 
thereupon  the  several  clauses  and  agreements  therein  contained  on  the 
jDart  of  the  said  trustees  should  be  absolutely  nidi  and  void,  to  all 
intents  and  purposes  Avhatsoever;  and  further,  that  the  said  trustees 
should  pay  to  the  said  T.  H.  Bennett,  his  executors  or  administrators, 
or  his  or  their  assignee  or  assignees,  as  the  case  might  be,  so  much  money, 
and  only  so  much  money,  as  the  said  R.  W.  Jearrad,  or  other,  the  archi- 
tect for  the  time  being  of  the  said  company,  should  adjudge  to  be  the 
fair  worth  of  the  work  actually  done  and  fixed  by  the  said  T,  H.  Ben- 
nett, his  executors  or  administrators,  to  the  hotel,  as  compared  with  the 
whole  work  to  be  done  for  the  said  price  of  £15,381  8s.  4c?."     Proviso, 
that  should  the  trustees  require  any  additions  to  or  alterations  in  the 
buildings,  or  the  mode  of  doing  the  same,  and  should  by  writing  under 
the  hand  of  one  of  them,  countersigned  by  Jearrad,  direct  the  same  to 
be  done,  then  such  additions  or  variations  should  be  made,  but  should 
not  in  any  respect  vacate,  alter,  annul,  or  make  void  the  agreement,  but 
the  diflference  caused  by  such  additions  or  variations  should  be  valued 
by  Jearrad,  and  should  be  paid  to  or  allowed  by  Bennett,  as  the  case 
might  be.     The  trustees  then  covenanted  to  pay  the  money  by  instal- 
ments, at  certain  dates  corresponding  with  the  times  at  which  the  speci- 
fied works  were  to  be  performed.    There  was  also  a  proviso,  making  the 
doing  of  the  works  conditions  precedent  to  payment,  and  the  architect's 
certificate  indispensable.     Certain  additional  works  were  contemplated 
as  the  building  proceeded,  Avhich  Bennett  also  undertook  at  stipulated 
prices.     Previously  to  the  month  of  September,  1837,  Bennett  received 
the  five  first  instalments  as  they  became   due,  upon  a  certificate  of 
Jearrad,  the  architect,  that  the  work  had  been  done.     In  that  month, 
Bennett,  being  pressed  for  money,  applied  to  Jearrad  for  advances,  in 
anticipation  of  the  instalments  not  then  due  ;  and  being  required  to  give 
in  a  statement  of  the  works  done  in  part  of  the  contract,  he  furnished  an 
account,  containing,  among  other  items,  the  following:  "Bricks  on  the 


SECT,  v.]  TRIPP   V.    ARMITAGE.  831 

gronnfl  (i.e.  on  the  hotel  premises),  £140  ;  joiner's  work  prepjired, 
£1000."  The  trustees  tliereupon  agi-eed  tliat  certain  advances  should 
be  made  to  Bennett,  on  the  security  of  all  the  materials  which  were  or 
should  be  brought  by  him  upon  the  premises  during  the  works,  and  he 
consequently  obtained  certificates  from  time  to  time  from  Jearrad, 
under  which  he  received  several  sums  of  money  for  work  not  actually 
done.  Duiing  the  progress  of  the  building,  one  Tuinbull  was  the 
clerk  of  the  works,  and  the  course  of  business  was  for  him  to  inspect 
every  article  that  came  in  iinder  any  of  the  contracts,  and  none  were 
received  except  on  his  apjiroval.  Some  sash-frames  for  the  windows 
had  been  sent  in  by  Bennett,  and  approved. of  by  Turnbull,  and,  before 
the  banki-uj)tcyj  had  been  again  taken  from  the  premises  to  a  workshop 
of  Bennett's,  for  the  purpose  of  having  affixed  to  them  some  iron  ])ul- 
leys,  which  had  been  sujjplied  to  the  defendants  by  Churchman  & 
Mallory,  under  their  contract.  At  the  time  of  the  bankruptcy,  these 
sash-frames,  with  the  pulleys  affixed  to  them,  wei'e  at  Bennett's  work- 
shop. 

"^"OTi  the  22d  of  November,  Bennett  committed  an  act  of  bankruptcy, 
on  which  a  fiat  subsequently  issued,  and  the  plaintiils  were  a])pointed 
his  assignees.  Between  the  22d  and  the  25th  of  November,  the  sash- 
frames,  to  which  the  pulleys  had  been  so  attached,  and  alsi^  ihe  various 
articles  excepted  out  of  the  first  plea,  were  delivered  ivponthg, prem- 
ises of  the  company.  There  were  also  on  the  hotel  ])remises,  at  the 
time  of  the  bankruptcy,  a  large  quantity  of  other  materials  which  had 
been  sent  in  from  time  to  time  by  Bennett,  and  which  had  been 
armi'^}  ?^^  o^  l>y  Turnbull,  and  were  in  a  prepared  state,  bilTnot  yet  fixed. 
On  taking  an  account  between  the  value  of  the  AvoiTc  actually  done 
and  fixed  at  the  time  of  the  bankruptcy,  and  the  money  received  by 
Bennett  up  to  that  time,  it  appeared  that  he  had  been  paid  in  advance 
about  £800  beyond  the  value  of  such  work.  The  present  action  Avas 
brought  by  the  assignees  to  recover  the  value  of  the  materials  which 
were  upon  the  premises,  unfixed,  at  the  time  of  the  bankruptcy,  of  the 
sash-frames,  and  of  the  other  materials  delivered  on  the  premises  afler 
the  bankruptcy.  These  last,  however,  were  satisfied  by  the  £129  paid 
into  court  and  taken  out  by  the  plaintiffs.  On  the  materials  delivered 
before  the  bankruptcy  the  defendants  claimed  a  lien,  as  being  the 
security  on  the  faith  of  which  the  advances  had  been  made  by  Jearrad 
to  the  bankrupt ;  and  they  also  claimed  the  property  in  the  sash-frames, 
as  being  specific  articles  which  had  been  appropriated  by  them,  and 
approved  on  their  part  by  Turnbull,  and  to  which  their  pulleys  had 
been  attached.  The  only  evidence  of  a  conversion  of  the  sash-fVumcs 
was  a  demand  and  refusal,  the  demand  not  being  iiniited  in  terms  to 
the  wood-work  of  the  frames.  The  value  of  the  frames  with  the  pulleys 
was  £9  55. ;  of  the  pulleys,  £1  95.  The  learned  judge  directed  the  jury, 
that  if  the  advances  were  made  to  Bennett  on  the  understanding  and 


832  TRIPP    V.    ARMITAGE.  [CHAP.   II. 

agreement  that  the  materials  brought  upon  the  premises  should  be  con- 
sidered as  a  pledge  for  those  advances,  they  should  find  a  verdict  for  the 
defendants ;  and  lie  intimated  an  opinion  that  the  sash-frames  had  been 
so  far  specifically  ap])ropriated  to  the  defendants  as  to  prevent  the  plain- 
tiffs from  recovering  in  respect  of  them.  The  jury  found  a  verdict  for  the 
defendants,  nnd  the  learned  judge  gave  the  plaintiffs  leave  to  move  to 
enter  a  verdict  for  £9  bs.,  the  value  of  the  sash-frames. 

TaJfo'urd,  Serjt.,  having  on  a  former  day  in  this  term,  obtained  a 
rule  nisi  accordingly, 

Maule  and  Greaves  showed  cause.  The  question  in  this  case  is, 
"whetlier  the  plaintiffs,  as  assignees  of  Bennett,  were  entitled  to  the 
sash-frames  in  the  state  in  which  they  were  at  the  time  when  they 
were  demanded  and  refused  ;  that  demand  and  refusal  being  the  only 
evidence  of  a  conversion.  The  defendants  contend  that  they  were  not 
so  entitled,  on  several  grounds.  First,  the  frames  had  then  become,  in 
entirety,  the  property  of  the  defendants.  Nothing  more  is  necessary 
by  law  (independently  of  statutable  limitations),  in  order  to  pass  the 
property  in  a  chattel  sold,  or  supplied  for  a  valuable  consideration, 
than  that  there  be  a  contract  with  respect  to  it  and  an  indication  of 
the  specific  chattel  that  is  to  pass  by  tliat  contract.  Where  the  con- 
tract is  to  supply  on  the  one  hand,  and  to  purchase  on  the  other,  goods 
of  a  given  species,  but  not  specific  goods,  there  no  property  passes  by 
the  contract  itself;  but  wherever  specific  goods  are  to  be  supplied,  and 
those  goods  alone  will  satisfy  the  contract,  there  the  projjcrty  vests  at 
once  in  the  purchaser.  But  even  in  the  former  case,  when  the  con- 
tract comes  to  be  performed,  and  the  specific  goods*  are  ascertained 
and  indicated  to  which  the  contract  is  to  attach,  the  property  equally 
passes.  "  The  very  appropriation  of  the  chattel  is  equivalent  to  de- 
livery by  the  vendor,  and  the  assent  of  the  vendee  to  take  the  specific 
chattel,  and  to  pay  the  j^rice,  is  equivalent  to  his  accepting  possession  : " 
per  Parke,  J.,  in  Dixon  v.  Yates.^  In  Mucklow  y.  Mangles,^  which  may 
be  cited  as  an  authority  the  other  way,  the  article  was  not  finished  nor 
appropriated.  Maberley  v.  Shcppard  ^  is  relied  on  for  the  plaintiffs ;  but 
that  was  a  case  falling  within  the  provisions  of  the  Statute  of  Frauds, 
and  was  decided  entirely  on  the  ground  that  the  requisites  of  section 
17  of  that  statute  had  not  been  complied  with.  And  Tindal,  C.  J., 
there  says :  "  If  the  wagon  had  been  completed  and  ready  for  delivery, 
and  the  defendant  had  then  sent  a  Avorkman  of  his  own  to  perform 
any  additional  work  upon  it,  such  conduct  on  the  part  of  the  defend- 
ant might  have  amounted  to  an  acceptance."  But  no  question  arises 
on  the  Statute  of  Frauds  in  the  present  case  :  first,  because  there  is 
here  a  note  in  writing  sufficient  to  satisfy  the  statute ;  secondly,  the 

1  5  B.  &  Adol.  340.  2  i  Taunt.  318. 

3  10  Bing.  99;  3  M.  &  Scott,  436. 


SECT,  v.]  TRIPP    V.    ARMITAGE,  833 

payment  of  the  first  instalment  was  part  payment  of  all  that  was  to  be 
paid  under  the  contract;  but,  thirdly,  this  is  not  purely  a  contract  for 
the  sale  of  goods,  within  the  moaning  of  the  statute.  There  may  be  a 
contract  under  which  chattels  are  furnished,  which  is  not  a  contract  of 
sale ;  as  in  the  case  of  board  and  lodging  at  so  much  per  week.  So, 
this  is  a  contract  for  work  and  labor  to  be  done  upon  materials  which, 
when  com])lete,  are  to  become  the  property  of  the  defendants ;  but  it 
it  is  not  properly  a  contract  for  the  sale  of  goods.  [Parke,  B.  The 
contract  is  to  make  these  several  things,  and  to  put  them  uj)  in  the 
hotel,  and  then  the  bankrupt  is  to  be  paid  one  entire  sum  for  the  whole 
work.  The  contract,  therefore,  is  not  complete  with  reference  to  these 
sash-frames,  until  they  are  fixed  to  the  house  and  made  part  of  the 
freehold.  Suppose  Bennett's  shop  had  been  burnt  with  the  frames  in 
it,  whose  would  have  been  the  loss?]  The  articles  having  been 
actually  approved  and  appropriated  by  the  defendants,  they  could  not 
have  called  upon  Bennett  to  furnish  others  in  case  of  their  destruction. 
As  soon  as  the  approval  of  Turnbull  was  given,  and  the  frames  were 
combined  Avith  the  pulleys,  which  undoubtedly  were  the  property  of 
the  defendants,  there  was  a  designation  of  the  specific  articles,  to 
which  the  previous  general  contract  was  to  apply,  and  the  property 
passed.  The  criterion,  however,  as  to  the  risk  by  fire  is  not  perfect ; 
it  does  not  follow  that,  because  a  party  is  the  owner  of  goods,  they  are 
necessarily  at  his  risk.  See  Bailey  v.  Culverwell.^  The  rule  of  law 
to  be  collected  from  the  cases  on  this  subject  is,  that  wherever  the 
article  which  is -the  subject  of  the  contract  is  identified,  either  in  the 
contract  itself,  or  afterwards  by  the  assent  and  ajjproval  of  the  par- 
ties, the  property  passes.  Atkinson  v.  Bell,-  Woods  v.  Russell,''  Elliott 
V.  Pybus,'*  Clarke  v.  Spence,^  Rohde  v.  Thwaites,^  Sparkes  v.  Marshall."^ 
[Parke,  B.  In  all  those  cases  there  was  a  bargain  for  the  specific 
article  ;  here  there  has  been  none.  The  parties  here  had  no  intention 
of  making  any  such  bargain  ;  the  contract  merely  is,  that  the  builder 
is  to  do  the  necessary  work  of  his  dei)artment  for  the  house.]  It  is 
immaterial  to  the  application  of  the  rule  of  law,  whether  the  contract 
is  solely  and  properly  for  the  sale  of  goods  or  not.  This  was  not  a 
contract  to  build  a  house,  but,  inter  alia,  to  furnish  sash-frames  ;  the 
contract  could  not  be  performed  without  furnishing  them.  Then  they 
were  appropriated,  by  being  incorporated  with  the  defendants'  iron 
work,  and  approved  by  the  party  nominated  by  them  for  that  pur- 
pose.^ .  .  . 

1  8  B  &  Cr.  452,  454.  2  3  id.  277  ;  2  Man.  &  R.  292. 

3  5  B.  &  Aid.  942 ;  1  D.  &  R.  587.      *  10  Biug.  512 ;  4  M.  &  Scott,  389. 

5  4  Ad.  &  K.  448 ;  6  Nev.  &  M.  399.     «  6  B.  &  Cr.  388 ;  9  D.  &  R.  293. 

^  2  Bing.  N.  C.  7G1 ;  3  Scott,  172. 

8  The  parts  omitted  are  not  relevant  to  the  subject  of  this  chapter.  —  Ed. 


834  TRIPP    V.    ARMITAGE.  [CHAP.  II. 

B.    V.   Richards    (with  wliom   were    Talfourd^  Seijt.,    and  TF.  J. 
Alexander)^  in  support  of  the  rule.  .  .  . 

Lord  Abinger,  C.  B.     I  have  been  much  disposed,  I  confess,  to 
endeavor  to  find  some  possible  ground  for  sustaining  the  verdict,  be- 
cause I  consider  this  to  be  one  of  the  hardest  cases  that  ever  occurred. 
The  defendants  undoubtedly  intended  to  pay  money  into  court  to 
cover  all  matters  on  Avhich  there  was  any  doubt,  and  to  rest  only  upon 
a  defence  which  was  perfectly  clear ;  and  on  a  great  part  of  their  case, 
amounting  to  several  hundred   pounds,  they  did   make   out  a  clear 
defence;  but  there  unfortunately  occurred  this  little   omission  with 
respect  to  these  sashes,  which  has  given  rise  to  the  whole  question 
now  in  dispute.     The  case  has  been  very  ably  and  ingeniously  argued 
by  Mr.  Maule,  but  I  cannot  at  all  adopt  the  first  ground  he  has  taken, 
namely,  that  by  reason  of  the  approbation  of  Turnbull,  the  clerk  of.  the 
works,  and  the  application  of  the  pulleys  sent  by  the  defendants  to  be 
fij^edlP.jtbe  sashes,  the  property  was  appropriated  to  the  defendants. 
\  My  reason  for  not  acceding  to  that  argument  is  shortly  this:  that  this 
is  not  a  contract  for  the  sale  and  purchase  of  goods  as  movable  chat- 
I,    tels;  it  is  a  contract  to  make  up  materials,  and  to  fix  them;  and  until 
I    the^'  are^  fixed,  by  the  nature  of  the  contract  the  property  will  not 
\  passf'^it  Is'saidtlia't  althougli'ffi^^^  in  the  first 

I  |in§tance,  yet  it  may  become,  by  circumstances  specific ;  that  althovigh 
I  la  man  may  agree  to  buy  goods  generally,  and  on  the  part  of  the  ven- 
I  fdor  the  contract  may  be  complied  with  by  supplying  any  goods  he 
\|chooses  of  the  description  named,  yet,  if  particular  goods  be  afterwards 
fpointed  out  and  designated  between  the  parties,  the  contract  is  thereby 
"modified,  and  becomes  then    an  undertaking   to  supply  the  specific 
goods,  the  property  in  which  thereby  passes  to  the  vendee.     Uttt^lhis 
is  not  a  contract  to  ]»uv('haso  gooils  at  all,  —  it  is  a  contract  for  several 
"works  to'be  done.     Wherever  the  property  of  "the  goods  passes  by  the 
contract,  and  has  become  vested  in  the  purchaser,  if  they  are  destroyed 
by  any  accident,  the  purchaser  would  be  responsible.     But  I  think  Ave 
cannot  say,  that,  if  these  sashes  had  been  destroyed,  the  purchasers, 
that  is,  the  defendants,  would  have  borne  the  loss ;  they  are  not  bound 
by  the  contract  to  pay  for  any  thing  till  it  is  put  up  and  fixed ;  and  if 
destroyed  by  fire,  or  in  any  way  abstracted  from  the  premises,  without 
the  fault  of  the  builder,  he  would  surely  have  a  right  to  recover  the 
value  of  such  goods  from  the  defendants.     I  think,  therefore,  that  from 
the  nature  of  this  contract,  the  property  remained  in  the  bankrupt, 
although  the  goods  had  been  approved  of  by  the  defendants.     That 
approval  does  not  mean  the  assent  of  the  parties  to  take  the  article 
and  pay  for  it  at  once,  but  merely  the  approval  of  it  as  a  proper  thing 
to  be  put  up.  .  .  . 

Parke,  B.     I   entirely  concur.     With   respect   to  the  first  point, 
which  has  been  insisted  upon  at  so  much  length  and  with  so  much 


SECT,  v.]  ELLERSHAW    V.    MAGNIAC.  835 

ingenuity  and  ability  by  Mr.  Maulc,  I  think  tlie  answer  is  a  very 
short  one.  I  admit  that  the  cases  wliich  have  been  cited  and  com- 
mented upon  by  him  arc  perfectly  good  law :  but  there  is  one  most 
material  distinction  between  them  and  the  present,  viz.,  that  in  all 
those  cases  there  was  a  contract  with  resjiect  to  a  pai'ticular  chattel, 
which  l»y  the  r'Milracl  \\':is  to  Ijccoiiir  tin,'  prdpcri  \-  of"  the  person 
taking  it,  under  certain  circumstances;  but  in  this  case  there  is  no 
contract  at  all  with  respect  to  these  particular  chattels,  it  is  merely 
parcel  of  a  larger  contract.  The  contract  is,  that  the  bankrupt 
shall  build  a  house  ;  that  he  shall  make,  amongst  other  thiiio-s 
window-frames  for  the  house,  and  fix  them  in  the  house,  subject 
to  the  approbation  of  a  surveyor ;  and  it  was  never  intended  by  this 
contract,  that  the  articles  so  to  be  fixed  should  become  the  prop- 
erty of  the  defendants,  until  they  were  fixed  to  the  freehold.  It  is 
said  that  the  approbation  of  the  surveyor  is  sufUcicnt  to  constitute  an 
acceptance  by  the  defendants;  but  that  approbation  is  not  given  eo 
ammo  at  all ;  it  is  only  to  ascertain  that  they  are  such  materials  as  are 
suitable  for  the  purpose  ;  and  notwithstanding  that  approval,  it  is  only 
when  they  have  been  put  up,  and  fixed  to  the  house,  in  performance 
of  the  larger  contract,  that  they  are  to  be  paid  for.  That  ai)])ears  to 
me  to  be  a  sufficient  answer  to  the  first  and  j^rincipal  point  which  has 
been  argued  by  Mr.  Maule  against  the  rule.  .  .  . 

jGrURNEY,  B.  I  am  of  the  same  opinion.  It  is  clear,  upon  this  con- 
tract, that  the  property  in  the  framps  had  not  passed  out  of  the  bank- 
rupt to  the  defendants.  They  had  therefore  no  right  to  take  possession 
of  these  frames;  they  had  only  a  right  to  sever  the  pulleys  from  the 
frames,  which  they  have  not  done,  but  have  possessed  themselves  of 
both ;  and  they  make  their  own  default  in  not  severing  the  one  from 
the  other,  the  ground  of  their  refusal  to  deliver  up  that  which  the 
assignees  were  entitled  to. 

jRule  absolute  to  enter  a  verdict  on  so  much  of  the  declaration 
as  ajyplied  to  the  sash-frames  ;  damages^  £7  IQs. 


^XLERSIIAW  V.  MAGNIAC  axd  Others. 
In  the  Exchequer,  April  22,  1843. 

.  [Reported  in  6  Exchequer  Reports,  570,  note  (a).] 

This  was  a  feigned  issue  to  try  whether  the  plaintiiF  Avas  entitled  to 
a  cargo  of  linseed  and  wheat,  or  any  and  what  part  thereof,  on  the 
arrival  of  a  vessel  called  the  Woodhouse  at  the  port  of  Hull,  on  the 
lOthof  June,  1841. 


836  ELLERSHAW   V.    MAGNIAC.  [CHAP.  II. 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  London  sittings  after 
Hilary  term,  1843,  the  following  facts  appeared:  On  the  8th  of  May, 
1840,  the  plaintiff,  a  merchant  at  Leeds,  entered  into  a  contract  with 
John  Cortazzi,  of  London  (who,  together  with  James  Cortazzi,  of 
Odessa,  carried  on  business  as  merchants  at  London  and  Odessa,  under 
the  firm  of  James  &  John  Cortazzi),  for  the  purchase  of  1700  quarters 
of  Odessa  linseed,  to  be  paid  for  half  by  drafts  on  the  buyer,  at  three 
months  from  the  time  of  the  advice  of  the  sale  reaching  Odessa,  and 
the  remainder  at  three  months  from  the  date  of  shipment.  On  the 
12th  of  May,  John  Cortazzi  wrote  to  James  Cortazzi,  at  Odessa,  for- 
warding a  copy  of  the  contract  with  the  plaintiff;  and  on  the  17th, 
James  Cortazzi  drew  upon  the  plaintiff,  on  account  of  the  linseed,  two 
bills  of  exchange,  for  payment  respectively  of  £912  10s.,  and  £490,  three 
months  afterdate;  which  bills  Avcre  duly  accepted  and  paid  by  the 
plaintiff  ^^'hen  due. 

In  order  to  fetch  the  linseed  from  Odessa,  the  plaintiff  on  the  24th  of 
July,  1840,  entered  into  the  following  charter-party:  — 

•  It  is  this  day  mutually  agreed  between  Messrs.  Terry  &  Sons,  owners  of 
the  good  ship  or  vessel  called  Woodhouse  of  the  burden,  &c.,  and  John 
Ellershaw,  of  Leeds,  merchant,  that  the  said  ship,  being  tight,  &c.,  shall,  with 
all  convenient  speed,  sail  and  proceed  to  Odessa,  or  so  near  thereto  as  she  may 
safely  get ;  and  there  take  on  board,  from  agents  of  the  said  freighter  about  1700 
quarters  of  linseed  in  bulk  (the  ship  to  be  allowed  to  take  a  cargo  of  coal  from 
England  to  any  port  in  the  Mediterranean  or  Black  Sea,  not  exceeding  what  she 
can  reasonably  stow,  &c.),  and,  being  so  loaded,  shall  forthwith  proceed  to  Hull, 
or  as  near  thereto  as  she  may  safely  get,  and  deliver  the  same  to  the  order  of  the 
freighter,  on  being  paid  freight  at  and  after  the  rate  of  75.  &d.  per  ton,  &c. 
(the  act  of  God,  &c.,  excepted).  Twenty  days  are  to  be  allowed  the  said  mer- 
chant (if  the  ship  is  not  sooner  despatched)  for  loading  at  Odessa,  and  fifteen 
days  for  discharging  at  Hull,  and  for  demurrage  over  and  above  the  said  lying  days 
the  said  freighter  to  pay  the  sum  of  £5  per  day. 

The  vessel  proceeded  on  her  outward  voyage  with  a  cargo  of  coal, 
and  arrived  at  Odessa  on  the  20th  of  December.  The  master  applied 
to  the  Odessa  house  for  the  linseed,  and  produced  a  copy  of  the  charter- 
party,  Avhen  he  was  informed  that  the  cargo  should  be  shipped  in  due 
time.  On  the  21st  of  December,  James  Cortazzi  wrote  to  John  Cor- 
tazzi as  follows  :  — 

The  Woodhouse  is  arrived :  we  have  about  800  chetwerts  of  linseed  ready  for 
her,  and  hope  to  have  the  rest  in  time. 

On  the  4th  of  January,  1841,  the  Odessa  house  commenced  loading 
the  vessel  with  linseed,  and  continued  to  load  it  at  intervals,  until  the 
25th  of  January,  by  which  time  she  received  on  board  1074  bags,  hav- 
ing been  lying  on  demurrage  for  five  days.  On  the  18th  of  January, 
James  Cortazzi  wrote  to  John  Cortazzi  as  follows :  — 


SECT,  v.]  ELLERSHAW  V.  MAGNIAC.  837 

With  regard  to  your  sales  of  linseed,  Mr.  Ellershaw  will  receive  a  part  by  the 
Woodliouse. 

On  the  25th  of  January  (the  day  on  which  the  loariiiig  of  the 
Woodhouse  was  completed),  James  Cortazzi  wrote  to  Jolin  Cortazzi 
as  follows :  — 

By  Friday's  post  you  shall  have  the  bill  of  lading  of  the  linseed  by  the  Wood- 
house. 

On  the  5th  of  February  the  master  signed  a  bill  of  lading  in  the  fol- 
lowing form :  — 

Shipped  in  good  order  and  -well  conditioned  by  James  and  John  Cortazzi  in  and 
upon  the  good  ship  called  Woodhouse  whereof  is  master  for  this  present  voyage 
J.  Tate,  and  now  riding  at  anchor  in  the  harbor  of  Odessa,  and  bouml  for  Hull, 
547  chetwerts  of  linseed,  being  marked  and  numbered  as  in  the  ntargin,  and  are 
to  be  delivered  in  like  good  order  and  well  conditioned  at  the  port  of  Hull  (the 
act  of  God,  &c.,  excepted),  unto  order,  or  to  assigns,  paying  freight  for  tlie  said 
goods  as  per  charter-party,  with  primage  and  average  accustomed.  In  wit- 
ness, &c. 

The  Odessa  house  having  subsequently  informed  the  master  that 
they  were  unable  to  procure  any  more  linseed,  he  consented  to  receive 
wheat  in  substitution  thereof,  and  similar  bills  of  lading  were  signed 
by  the  master.  The  amount  of  the  bills  of  exchange  paid  by  the  plaintiff 
considerably  exceeded  the  A'alue  of  the  linseed  shipped.  The  Odes.sa 
house,  being  in  difficulties,  indorsed  the  bills  of  lading  to  one  Poel,  for 
advances  made  by  him ;  and  Poel  transferred  them  to  the  defendants. 
The  vessel  arrived  at  Hull  on  the  lOth  of  June,  18-41,  when  the  defend- 
ants claimed  the  cargo  as  holders  of  the  bills  of  ladingr. 

It  was  submitted  on  behalf  of  the  defendants,  that  under  the  above 
circumstances  the  pro])erty  in  the  cargo  never  vested  in  the  plaintiff; 
and  the  learned  judge,  being  of  that  opinion,  directed  a  verdict  for  the 
defendants,  reserving  leave  to  the  plaintiff  to  move  to  enter  a  verdict 
for  him. 

Worthy  (with  whom  was  Cov;ling)  in  the  following  Easter  term 
moved  accordingly.  He  argued  that  as  the  goods  were  purchased  and 
put  on  board  the  vessel  in  pursuance  of  the  contract,  the  Odessa  house 
intending  them  for  the  plaintiff,  and  knowing  that  the  bills  of  exchange 
had  been  paid,  they  could  not  vary  the  consignment  by  ])rocuring  the 
master  to  sign  a  bill  of  lading,  making  the  goods  deliverable  to  order 
or  assigns.     He  cited  Ogle  v.  Atkinson.'' 

The  court,"  however,  were  of  opinion  that  there  was  not  such  a  de- 
livery of  the  goods  as  to  vest  the  property  or  right  of  possession  in  the 
plaintiff;  the  circumstance  of  the  shi])pers  making  the  linseed  deliver- 
able to  order  by  the  bill  of  lading,  clearly  showing  their  intention  to 

1  5  Taunt.  759.  ^  Lord  Abinger,  C.  B.,  Parke,  B.,  Alderson,  B. 

TOL.    I.  64 


838  WILKINS   V.    BROMHEAD.  [CHAP.  II. 

preserve  the  right  of  property  and  possession  in  themselves,  until  they 
had  made  an  assignment  of  the  bill  of  lading  to  some  other  person  ;  and 
though  the  goods  might  have  been  purchased  with  an  intention  that 

they  should  be  delivered  to  Ellershaw,  that  intention  was  never  exe- 

-, :w....<v..*>-..=jiv3,„«ai.,^,,.,;^_^,i^;.^,.,„^,^,^^  j^yjQ  refused. 


WILKINS  V.   BROMHEAD  and   HUTTON. 

In  the  Common  Pleas,  January  23, 18i4. 

[Reported  in  6  Manning  ^-  Granger,  963.] 


against   the  defendants,  who  were  assignees  of  Smith  & 

Bryant,  bankrupts,  for  a  greenhouse  and  materials.    Pleas,  not  guilty, 

and  not  possessed;  on  both  of  which  pleas  issue  was  joined. 

>*         At  the  trial  of  the  cause,  before  Coleridge,  J.,  at  the  last  Bristol  sum- 

A      ^    mer  assizes,  it  appeared  that  the  plaintiif,  a  gentleman  residing  near 

^    ^i    \       Cardiff,  in  Glamorganshire,  in  October,  1841,  employed  the  bankrupts 

^       i'     Smith  &  Bryant,  who  were  carpenters  at  Bristol,  to  make  him  a  green- 

'    tji     \     house  for  the  price  of  £50:  it  was  also  agreed  that  Smith  &  Bryant 

\    \     V     should  put  up  the  greenhouse  on  tlie  plaintiff's  premises  at  Cardiff,  for 

\      N^     the  further  sum  of  £14   14s.     Smith  &  Bryant,  having  finished  the 

^^^    I        wood-work,  sent  the  sashes  to  a  glazier  of  the  name  of  Wait,  to  be 

^    X    glazed.     The  whole  work  being  completed,  but  not  permanently  fixed 

too-ether,   Smith  &  Bryant,  in  June,  1842,  informed  the  plaintiff,  by 


^     Company 

^  &  Bryant  "to  keep  the  greenhouse,  and  take  care  of  it,  till  he  sent  for 
it."  In  February,  1845,  pending  an  action  against  Bryant,  the  whole 
was  sent  by  him  to  Wait  without  the  knowledge  of  the  plaintiff,  to 
secure  it  from  an  execution  against  Bryant.  Bryant  asked  Wait  to 
place  the  greenhouse  in  his  warehouse,  alleging  that  Smith  &  Bryant 
had  not  room  for  it  on  their  premises,  telling  him  also  that  it  was  the 
plaintiff's  property,  and  requesting  Wait  to  keep  it  till  he  sent  for  it, 
which  Wait  agreed  to  do.  On  the  14th  of  March  a  fiat  in  bankruptcy 
issued  ao-ainst  Smith  &  Bryant,  imder  which  the  defendants  Avere  ap- 
pointed assignees.  On  the  22d  of  April  the  greenhouse  was  removed 
by  Wait  to  the  premises  of  the  bankrujits,  and  was  taken  possession  of 
by  the  messenger  under  the  fiat. 

On  the  9th  of  May,  1843,  an  agent  of  the  plaintiff  made  a  demand  of 
the  greenhouse  upon  the  solicitor  of  the  fiat,  at  the  same  time  leaving 
with  him  a  written  demand,  addressed  to  the  defendants.     The  solici- 


SECT,  v.]  WILKINS   V.    BROMHEAD.  839 

tor,  on  the  12tli,  informed  the  plaintiff's  agent  that  the  opinion  of 
counsel  had  been  taken,  and  that  the  assignees  were  advised  not  to 
give  up  the  greenhouse ;  and  he  accepted  a  notice,  and  indorsed  a  re- 
fusal, dating  it  on  the  9th. 

On  the  part  of  the  defendants  it  was  contended  that  there  was  no 
evidence  for  the  jury  of  the  plaintiff's  property  in  the  greenhouse;  and 
Atkinson  v.  Bell  ^  was  cited;  and  that  even  assuming  that  there  was 
some  evidence  of  property  in  the  plaintiff,  the  greenhouse,  at  the  time 
of  the  fiat,  was  in  the  possession,  order,  and  dis];)osition  of  the  l)ank- 
rupts,  with  the  consent  of  the  owner,  within  the  6  G.  4,  c.  16,  §  72.^  A 
further  point  was  taken,  that  there  Avas  no  evidence  of  a  conversion  by 
the  defendants;  but  it  was  abandoned  on  the  argument. 

The  learned  judge  having  refused  to  nonsuit  the  plaintiff,  the  defend- 
ants' counsel  declined  to  address  the  jury,  who  were  directed  to  find 
for  the  plaintiff,  on  both  issues.  A  verdict  was  returned  accordingly, 
damages  £50 ;  leave  being  reserved  to  move  to  enter  a  nonsuit,  if  the 
court  should  think  either  objection  well  founded. 

Bompas,  Serjt.,  in  Michaelmas  term  last,  obtained  a  rule  ms?  accord- 
ingly^  —  citing  Thacktlnvaite  v.  Cock,''  White  v.  AVilks,*  and  Knowles 
V.  Ilorsfall.^ 

Channel}.,  Serjt.  (with  whom  was  Butt),  showed  cause.  The  ques- 
tion is,  whether,  on  the  points  taken,  there  was  any  evidence  which 
justified  the  judge  in  leaving  the  case  to  the  jury.  First,  it  is  quite 
clear  that  the  property  in  the  greenhouse  vested  in  the  i)laiiitiff:  it  was 
completely  finished,  and  he  ])aid  the  whole  price  for  it;  and  there  was 
a  complete  appropriation  of  it  by  the  bankrupts  to  the  phiintiff  when 
they  sent  it  to  Wait's  warehouse  to  be  kept  for  him,  with  express 
notice  that  it  belonged  to  him.  Atkinson  v.  Bell®  was  cited  at  the 
trial  for  the  defendants.  That  case,  however,  is  very  different  from 
the  present.  There  the  defendant,  the  vendee,  expressly  refused  to 
accept  the  machines;  whereas  here  not  only  did  the  plaintiff  assent 
to  receive  the  greenhouse,  but  he  actually  paid  for  it.  Mucklow  v. 
Mangles,''  also,  does  not  apply.  In  tliat  case  thei-e  was  a  payment  in 
advance,  but  there  was  no  appropiiation  of  the  article  by  the  vendor 
with  the  assent  of  the  vendee.  In  Goodall  v.  Skelton  ^  there  M-as 
clearly  no  delivery,  so  as  to  warrant  the  plaintiff  in  suing  as  for  goods 
sold  and  delivered.  Supposing  this  greenhouse  to  have  been  destroyed 
by  fire  Avhilst  upon  the  premises  of  Wait,  the  loss  Avould  clearly  have 
fallen  on  the  plaintifl^     Tarling  v.  Baxter."  .  .  . 

Sir  2\  Wilde  and  Bumpas,  Serjts.,  in  support  of  the  rule.     The  first 

1  8  B.  &  C.  277,  2  Mann.  &  Ryl.  292. 

2  The  arguments  and  decision  upon  this  point  have  been  omitted.  —  Ed. 

3  3  Taunt.  487.  *  5  Taunt.  17G.  »  5  B.  «&  Aid.  134. 
c  8  B.  &  C.  277,  2  Mann.  &  Kyi.  21)2.  7  i  Taunt.  318. 

8  2  II.  Blac.  316.  9  0  B.  &  C.  360,  9  Dowl.  &  li;-!.  272. 


840  WILKINS   V.    BROMHEAD.  [CHAP.  II. 

question  is,  whether  the  property  in  the  greenhouse  passed  to  the  plain- 
tiff. Tliere  is  a  known  distinction  between  the  case  of  a  sale  of  a  spe- 
cific article  in  existence  at  the  time,  and  that  of  an  article  ordered  to 
be  made :  in  the  former  case  the  property  passes  by  the  contract, 
although  a  lien  may  remain  for  the  price ;  in  the  latter  case,  until  the 
article  has  been  so  far  accepted  that  the  buyer  cannot  repudiate  it,  the 
property  continues  in  the  vendor.^  .  .  .  There  can  be  no  doubt  that 
here  the  bankrupts  intended  to  appropriate  the  greenhouse  to  the  plain- 
tiff; but  his  assent  to  such  appropriation  was  wanting.  [Maule,  J. 
Suppose  the  bankrupts  had  shown  the  greenhouse  to  the  plaintiff,  and 
be  had  then  paid  for  it?]  That  would  have  made  all  the  difference. 
The  circumstance  of  the  bankrupts  having  represented  to  the  plaintiff 
that  they  had  finished  the  greenhouse,  and  demanded  the  £50,  and  of 
the  plaintiff  having  assented  to  the  demand  and  paid  the  money,  did 
not  vest  the  property  in  the  plaintiff.  Notwithstanding  the  payment 
of  the  price,  no  change  of  property  could  take  place,  unless  there  was 
such  an  acceptance  by  the  plaintiff  as  would  preclude  him  from  repudi- 
atiufT  the  sri'eenhouse  Avhen  he  saw  it ;  and  there  was  no  evidence  of 
any  such  acceptance.  Suppose  the  bankrupts  had  sold  this  identical 
o-reenhouse  after  the  remittance  of  the  £50,  could  the  plaintiff  have 
maintained  trover  for  it?  It  is  clear  that  the  bankrupts  might  have 
performed  their  contract  by  sending  him  another  greenhouse.  Had 
this  greenhouse  been  destroyed  by  fire  whilst  on  the  bankrupts'  prem- 
ises, the  loss  would  unquestionably  have  been  theirs.  The  cases  that 
have  arisen  upon  the  statute  of  frauds  are  most  pertinent  to  the 
present  inquiry.  It  is  apprehended  that  delivery  imports  acceptance. 
[Maule,  J.  But  acceptance  does  not  import  delivery.]  Suppose  a 
verbal  contract  to  deliver  an  article  in  the  country,  and  the  buyer 
comes  to  London,  inspects  the  article  and  does  something  to  it,  that 
is  an  acceptance  which  imports  delivery  for  many  legal  purposes.  It  is 
submitted  that  there  cannot  be  an  acceptance  without  some  offer  to 
deliver  on  the  other  side.  Here,  the  plaintiff  not  having  come  for  the 
article,  the  bankrupts  sent  it  to  Wait's  premises ;  which,  so  far  as  this 
question  is  concerned,  was  the  same  as  sending  it  to  another  shop  of 
their  own.  [Maule,  J.  Wait  is  told  to  keep  it  till  the  plaintiff  sent 
for  it.]  But  to  keep  it  in  what  sense  ?  Not  as  delivered  to  the  plain- 
tiff. All  that  was  meant  was,  that  the  greenhouse  was  an  order  which 
the  bankrupts  had  executed  for  the  plaintiff.  It  is  clear  that  here  has 
been  no  such  delivery  and  acceptance  as  Avould  preclude  the  vendee 
from  setting  up  the  statute  of  frauds,  or  objecting  to  receive  the 
article.  Elmore  v.  Stone,"  Rugg  v.  Minett.'^  Suppose  a  tailor  to  write 
to  a  customer  in  the  country,  saying  that  his  clothes  were  made,  and 

1  The  learned  counsel  here  cited  Mucklow  v.  Mangles,  1  Taunt.  318,  and  Atkinson 
V.Bell,  8  B.  &  Cr.  277. —Ed. 

2  1  Taunt.  458.  '  11  East,  210. 


SECT,  v.]  WILKINS   V.    BRO.MHEAD.  841 

that  he,  the  tailor,  wanted  money;  that  the  customer  sent  the  money, 
and  then  came  to  town  and  found  the  clothes  too  larcre :  could  he  not* 
return  them?     In  Howe  v.  Palmer,^  where  a  vendee  verbally  agreed, 
at  a  public  market,  with  the  agent  of  the  vendor,  to  purchase  twelve 
bushels  of  taies  (then  in  the  vendor's  possession,  constituting  part  of 
a  larger  quantity  in  bulk),  to  remain   in  the  vendor's  possession   till 
called  for,  and  the  agent,  on  his  return  home,  measured  the  twelve 
bushels  and  set  them  apart  for  the  vendee,  it  was  held  that  this  did 
not  amount  to  an  acceptance  by  the  latter,  so  as  to  take  the  case  out  of 
the  seventeenth  section  of  the  Statute  of  Frauds.     [Cukssweli.,  J. 
referred  to  Alexander  v.  Gardner,^  as  resembling  the  present  case.]     In 
that  case,  an  invoice,  and  an  indorsed  bill  of  lading,  of  the  butters  had 
been  sent  to  the  vendees.     In   Carter  v.  Toussaint,^  a  horse  was  sold 
by  verbal  contract,  but  no  time  was  fixed  for  the  payment  of  the  price  ; 
the  horse  was  to  remain  with  the  vendors  for  twenty  days  without  any 
charge  to  the  vendee ;  at  the  expiration  of  that  time  the  horse  was 
sent  to  grass  by  the  direction  of  the  vendee,  and  by  his  desire  entered 
as  the  horse  of  one  of  the  vendors :  and  it  was  held  that  there  was  no 
acce^jtance  of  the  hoi-se  by  the  vendee,  Avithin  the  Statute  of  Frauds. 
[Maule,  J.     In  that  case  there  was  a  sale  of  a  chattel  for  more  than 
£10,  and  no  memorandum  in  writing.     Suppose  the  price  of  the  horse 
had  been  under  that  sum?     If  part  payment  of  the  price  will  satisfy 
the  Statute  of  Frauds,  will  not  the  payment  of  the  whole  price  do  so  ?] 
By  merely  paying  for  an  unseen  article,  the  party  does  not  so  conclude 
himself  as  to  prevent  him  from  repudiating  it  afterwards.  .  .  . 

TixDAL,  C.  J.  The  motion  before  the  court  proceeds  upon  two 
distinct  grounds :  the  first  ground  is,  that,  under  the  contract,  no  prop- 
erty in  the  greenhouse  in  question  passed  to  the  plaintiff;  the  second, 
admitting  that  the  property  did  pass  by  the  contract,  as  the  greenhouse 
remained  in  the  possession  of  the  bankrujjts,  or  of  Wait,  down  to  the 
time  of  the  bankruptcy,  it  must  be  taken  to  be  property  in  their  order 
and  disposition,  as  reputed  owners,  with  the  consent  and  permission  of 
the  true  owner,  and,  consequently,  that  it  vested  in  their  assignees. 
As  to  the  first  point,  there  can  be  no  doubt  l)ut  that  a  contract  for  the 
making  of  a  chattel  does  not  of  itself  vest- the  property  in  the  chattel, 
when  completed,  in  the  person  giving  the  order.  But  here  the  ques- 
tion turns,  not  upon  the  original  contract  between  the  plaintiff"  and 
Smith  &  Bryant,  but  upon  the  circumstances  M'hich  afterwards  took 
place,  viz.,  the  i)ayment  by  the  plaintiflT,  after  the  greeidiouse  had  been 
completed,  of  the  stipulated  price,  the  appropriation  and  setting  ai)art 
by  the  bankrupts  of  the  greenhouse  for  the  plaintiff,  and  his  assent  to 
such  appropriation.     There  was  an  appropriation  on  the  one  side,  and 

1  3  B.  &  Aid.  321.  2  1  ^cw  Cases,  G71,  1  Scott,  030. 

3  6  B.  &  Aid.  855,  1  D.  &  R.  615. 


842  WILKINS   V.    BROMHEAD.  [CHAP.  H. 

an  nsscnt  to  such  appropriation  on  the  other;  which,  I  thinlc,  was  quite 
sufficient  to  pass  the  property  to  the  phiintiff.     It  may  be  that  the 
original  contract  did  not  pass  the  property;    but  the  parties  maybe 
said  to  liave  entered  into  a  new  contract.     I  cannot  conceive  why, 
under  the  circumstances  of  this  case,  the  property  in  an  article  made 
to  order  should  not  pass  upon  its  completion,  as  it  would  have  done  if 
it  had  been  in  existence  at  the  time  of  the  original  contract.     The 
objections  raised  upon  this  point  Avere  mainly  founded  upon  Atkinson 
V.  Bell.^     But,  if  that  case  be  examined,  it  will  be  found  not  to  apply. 
Tlie  decision  there  turned  entirely  on  the  absence  of  assent  on  the  part 
of  the  purchasers  to  the  appropriation  of  the  machines  by  the  vendor. 
It  is  said,  by  Bayley,  J.,  "These  were  Sleddon's  goods,  although  they 
were  intended  for  the  defendants,  and  he  had  written  to  tell  them  so. 
If  they  had  expressed  their  assent,  then  this  case  would  have  been 
within  Rohde  v.  Thwaites,-  and  there  would  have  been  a  complete 
appropriation,  vesting  the  propei'ty  in  the  defendants.     But  there  was 
not  any  such  assent  to  the  appropriation  made  by  the  bankrupt ;  and, 
therefore,  no  action  for  goods  bargained  and  sold  was  maintainable." 
Holroyd,  J.,  observes,  "I  think  the  action   will  not  lie  for  goods  bar- 
gained and  sold,  because  there  was  no  specific  appropriation  of  the 
machines  assented  to  by  the  purchasers,  and  the  property  in  the  goods 
therefore  remained  in  the  maker."     And  Littledale,  J.,  adds,  "There 
could  not  be  any  sale  in  this  case,  unless  there  was  an  assent,  by  the 
defendants,  to  take  the  articles."     Looking  at  the  facts  of  this  case,  it 
seems  to  me  that  there  is  complete  evidence  of  assent,  on  the  part  of 
the  ]ilaintifF,  to  the  appropriation  made  by  the  vendors.     The  plaintiif 
was  informed  by  letter  that  the  greenhouse  was   finished,  and  was 
requested  to  remit  the  price.     He  did  so,  at  the  same  time  requesting 
the  vendors  to  keep  the  greenhouse  for  hira  until  he  sent  for  it.     It 
has  been  argued,  that  the  letter  of  the  plaintifi^,   desiring  Smith  & 
Bryant  to  keep  the  greenhouse  for  him,  Avas  written  before  the  article 
was  seen,  and  that  it  would  be  hard  if  it  were  held  to  be  such  an  accept- 
ance as  Avould  preclude  him  from  rejecting  the  article  if  it  afterwards 
turned  out  defective  in  its  construction.     If  a  purchaser's  assent  to  the 
appropriation  Avas  shown  to  have  been  obtained  by  misrepresentation, 
it  seems  to  me  it  would  probably  be  held  to  be  no  assent  at  all.     But 
that  is  not  the  case  here ;  and  although  the  plaintiff"  thought  proper  to 
assent  to  the  appropriation  Avithout  seeing  the  greenhouse,  the  assent 
was  not  the  less  complete.     Upon  this  point,  therefore,  I  think  that 
the  property  vested  in  the  plaintiff*,  so  as  to  enable  him  to  maintain 
this  action.  .  .  . 

Erskine,  J.     I  also  think  that  this  rule  should  be  discharged.    With 
respect  to  the  first  point,  I  am  of  opinion,  on  the  authority  of  the  cases 

1  8  B.  &  C.  277,  2  Mann.  &  Ryl.  292.  2  6  B.  &  C.  388,  9  Dovvl.  &  Ryl.  293. 


SECT,  v.]  WILKINS   V.    BROMHEAD.  843 

relied  upon  for  the  defendants,  that  the  property  in*  this  greenhouse 
passed  to  the  i)laintift".  It  is  conceded,  on  all  hands,  that  the  rule  laid 
down  in  IMucklow  v.  Mangles^  is  the  correct  one,  viz.,  that,  wliile  the 
article  remains  unfinished,  no  property  in  it  passes,  notwithstanding  the 
vendor  may  intend  it  for  the  purchaser,  or  may  put  liis  name  upon  it, 
or  otherwise  show  an  intention  to  appropriate  it,  and  that  a  ])ayment 
of  money  on  account  makes  no  difference.  Here,  however,  the  green- 
house was  completed  and  after  it  was  so  completed  the  makers  a]ipro- 
priated  it  to  the  purchaser.  Tiie  latter,  before  paying  for  it,  might 
have  required  to  see  it ;  but,  instead  of  doing  so,  he  transmitted  the 
price.  But  that  is  not  all;  he  also  requested  the  bankrupts  to  keep 
the  greenhouse  for  him,  thereby  assenting  to  the  appropriation  which 
they  had  made.  "WlicMi  the  latter  deposited  it  with  Wait,  they  gave 
notice  that  it  was  the  ])laintiff 's  property,  and  requested  Wait  to  take 
care  of  it  for  him.  The  reason  why  it  was  held  in  Atkinson  v.  Bell' 
that  the  action  for  goods  bargained  and  sold  could  not  be  maintained, 
was,  that,  although  there  had  been  an  appropriation,  no  assent,  on  the 
part  of  the  persons  for  whom  the  articles  were  made,  had  been  shown. 
The  language  of  the  judges,  as  read  by  the  lord  chief  justice,  shows 
that  to  have  been  the  only  ground  on  which  the  case  Avas  decided. 
*'  If,"  says  Bayley,  J.,  "the  defendants  had  expressed  their  assent,  then 
this  case  would  have  been  within  Rohde  v.  Thw'aites,^  and  there  would 
have  been  a  complete  appropriation  vesting  the  property  in  the  de- 
fendants." What  Avas  the  assent  in  Rohde  v.  Thwaites  Avhich  was,  in 
that  learned  judge's  o]nnion,  sufficient  to  pass  the  property?  There 
the  vendee  never  saw  the  sugars ;  but,  having  received  a  message  from 
the  seller  that  they  were  ready  for  him,  he  sent  word  back  that  he 
would  take  them  away  as  soon  as  he  could :  and  it  was  held  to  be 
such  an  assent  that  the  property  passed.  Moreover,  there  is  here  a 
strong  fact  which  did  not  appear  in  Rohde  v.  Thwaites ;  for  the  pur- 
chaser paid  the  price,  and  requested  the  vendors  to  keep  the  green- 
house for  him.  It  appears  to  me  that  the  property  completely  passed 
to  the  plaintiff,  and  that  if  the  article  had  been  accidentally  destroyed 
while  in  the  possession  of  the  bankrupts  or  of  Wait,  it  would  have 
been  the  plaintiff's  loss.  .  .  . 

Maule,  J.  ...  As  to  the  first  point  there  seems  to  me  to  have  been 
a  complete  appropriation  on  the  part  of  the  vendors,  and  an  assent 
thereto  on  the  part  of  the  purchaser.  A  good  deal  has  been  said  about 
acceptance  and  the  Statute  of  Frauds ;  but  I  do  not  think  that  either 
has  any  thing  whatever  to  do  with  this  case.  This  is  not  like  the  case 
of  Do  lit  facias  ;  for  here  payment  has  been  made  for  a  completed 
article.  The  clear  understanding  was,  that  the  plaintifi'  was  to  have 
the  greenhouse,  and  the  bankrupts  the  £50.     That  the  bankrupts  so 

1  1  Taunt.  318.  2  8  B.  &  C.  277,  2  Mann.  &,  Ryl.  292. 

3  6  B.  &  C.  S83,  9  D.  &  R.  293. 


844  CUNLIFFB   V.    HARRISON.  [CHAP.  11. 

understood  the  transaction  is  clear ;  as  they  treat  the  greenhouse  as 
being  no  longer  their  property,  but  as  belonging  to  the  plaintiff.  In 
these  cases  it  is  not  necessary  that  tlie  vendee  should  actually  see  the 
article  when  completed,  provided  there  is  sufficient  to  show  that  the 
identical  thing  offered  or  appropriated  by  the  one  party,  is  accepted 
and  assented  to  by  the  other,  as  made  in  the  performance  of  the  con- 
tract. Of  this  there  was  evidence  on  which  any  jury  would  have  found 
for  the  plaintiff.  .  .  . 

Ckesswell,  J.  I  am  of  the  same  opinion.  The  first  point  comes 
very  much  to  this,  —  whether  the  contract  was  not  in  effect  an  agree- 
ment for  the  sale  of  a  specific  chattel ;  for  although,  in  the  first  instance, 
the  bankrupts  contracted  to  build  the  greenhouse  for  the  plaintiff,  after 
the  article  was  finished  there  was  an  appropriation  of  it  to  the  plaintiff, 
and  a  clear  assent  on  his  part  to  such  approj^riation.  I  therefore  think 
the  property  passed  to  the  plaintiff.  .  .  .  Mule  discharged} 

y  /      — 

V''  '  /L    'It''  CtlNLIFFE  V.  HAERISOK  and  Othees. 

Ay      a'  •  In  the  Exchequer,  June  24,  1851. 

ys  ir  [Reported  in  6  Exchequer  Reports,  903.] 

V  Assumpsit  for  goods  sold  and  delivered.  Plea,  non  assumj^seruyit, 
and  issue  thereon.  At  the  trial  before  Piatt,  B.,  at  the  last  Liverpool 
assizes,  it  appeared  that  the  action  was  brought  to  recover  the  sum  of 
£460,  the  price  of  ten  hogsheads  of  claret,  as  sold  to  the  defendants 
under  the  following  circumstances.  The  defendants,  wine-merchants 
at  Liverpool,  in  the  year  1847  had  given  a  verbal  order  to  the  plaintiff, 
a  wine-merchant  at  Boui'deaux,  for  some  hogsheads  of  claret;  but  it 
did  not  clearly  appear  Avhat  was  the  precise  number  of  hogsheads  or- 
dered. In  pursuance  of  this  order,  on  the  29th  of  September,  the 
plaintiff  sent  fifteen  hogsheads  of  claret,  and  at  the  same  time  sent  a 
letter  to  say  that,  according  to  the  defendants'  order,  he  had  sent  fifteen 
hogsheads  of  the  finest  claret.  The  defendants,  on  receiving  notice  of 
the  arrival  of  the  wine,  on  the  12th  of  October,  wrote  to  the  plaintiff 
the  following  letter :  — 

We  requested  that  only  ten  hogsheads  might  be  shipped,  and  ten  reserved 
for  shipment  in  the  spring  in  case  we  should  need  it.    We  therefore  can  only  take 

1  The  defendant,  Bromhead,  afterwards  brought  an  action  in  Q.  B.  against  his 
attorney.  Hall,  for  defending  the  action  without  liis  authority,  and  he  obtained  a  ver- 
dict. At  the  trial,  coram  Erie,  J.,  at  Bristol,  1845,  it  was  proved  that  the  bankrupts 
sent  the  greenhouse  to  Wait,  to  prevent  its  being  taken  in  execution  as  their  property, 
but  it  did  not  appear  on  this  occasion  that  any  intimation  was  given  to  Wait  that  the 
greenhouse  had  become  the  property  of  Wilkins. 


SECT,  v.]  CUNLIFFE  V.    HARRISON.  845 

ten  Iiogslioads  to  account  on  their  provin^^  satisfactory,  and  the  other  five  hogs- 
heads we  will  hold  on  your  account,  waiting  your  instructions. 

To  tills  letter  the  plaintiff  replied  on  the  IStli  of  October,  and  after 
statin;^  that  he  rej^retted  that  there  should  have  been  any  inisnnder- 
standing  as  to  the  nature  of  the  defendants'  order,  and  that  clarets 
were  likely  to  rise  in  price  because  other' vintages  were  of  an  inferior 
quality,  the  letter  concluded  as  follows :  — 

With  old  friends  like  yourselves,  whatever  suits  you  best  is  most  acceptable 
to  us.  The  wine  is  superior.  You  will  ascertain  in  the  si)ritig  wlietiier  you  have 
room  for  it ;  and  you  have  seen  that  we  are  not  stringent  with  old  customers  as 
to  credit. 

The  defendants  placed  the  fifteen  hogsheads  in  a  bonded  warehouse 
in  their  own  names,  and  shortly  afterwards  tasted  the  wine  and  disap- 
proved of  it ;  but  they  gave  no  notice  to  the  plaintiff  of  their  disapproval 
till  the  following  month  of  April,  when  they  refused  to  take  any  part 
of  it.  In  the  month  of  June  the  plaintiff  requested  to  have  five  hogs- 
heads delivered  to  his  account,  and  demanded  the  price  of  the  other 
ten. 

On  the  part  of  the  defendants  it  was  contended  that,  assuming  that 
there  was  a  contract  in  Avriting,  so  as  to  satisfy  the  Statute  of  Frauds, 
that  contract  was  to  take  ten  hogsheads  only,  and  therefore  that  the 
contract  was  not  executed,  as  ten  hogsheads  had  not  been  sent,  or 
selected  out  of  the  fifteen ;  and,  secondly,  that  if  that  was  not  so,  there 
was  no  acceptance  within  the  17th  section  of  the  Statute  of  Frauds. 
The  learned  judge  left  it  to  the  jury  to  say  whether  the  defendants 
had  kept  the  wine  an  unreasonable  time  without  signifying  their  dis- 
approbation of  it;  and  the  jury  having  found  that  they  had,  a  verdict 
was  entered  for  the  plaintiff,  with  leave  to  the  defendants  to  move  to 
set  that  verdict  aside,  and  to  enter  a  nonsuit,  if  the  court  should  be  of 
opinion  that  there  was  not  any  evidence  in  support  of  the  plaintiff's 
case. 

Ivnowles  having  in  last  Easter  term  obtained  a  rule  nisi  accordingly. 

Watson  and  Crompton  showed  cause,  and  contended  that  there  was 
a  contract  in  writing,  by  which  the  defendants  agreed  to  purchase  ten 
liogsheads  ;  and  that  although  fifteen  had  been  sent,  the  defendants 
liad  an  o])portunity  of  taking  ten  out  of  the  set,  and  therefore  that  in 
effect  it  amounted  to  a  delivery  often  hogsheads;  and  that  the  defend- 
ants, by  keejjing  the  Avine  for  an  unreasonable  time  without  objecting 
to  it,  must  be  presumed  to  have  accepted  it. 

Knoxoles  and  Tomlinson^  in  support  of  the  rule,  were  not  called 
U23on. 

Pauke,  B.  I  am  of  opinion  that  the  rule  ought  to  be  absolute  to 
enter  a  nonsuit.  This  is  an  action  for  goods  sold  and  delivered,  the 
value  of  Avhich  is  above  £10.     There  are  two  questions:  first,  whether 


846  CUNLIFFE   V.    HARRISON.  [CHAP.  II. 

there  was  any  binding  contract  to  satisfy  the  Statute  of  Frauds,  and 
whether  that  contract  has  been  performed ;  and  secondly,  if  that  be 
not  so,  whether  there  was  an  acceptance  of  the  goods,  so  as  to  bind 
the  defendants  by  an  acceptance  within  that  statute.     I  think  that  the 
phaintiff  has   failed   to    establish    either  of  these   propositions.     The 
defendants'  order  in  the  first  instance  was  a  verbal  one.    Upon  looking 
at  the  correspondence,  it  appears  that  the  parties  are  not  agreed  upon 
the  precise  nature  of  the  contract.     The  correspondence  ])egins  by  a 
letter  of  the  29th  of  September,  in  which  the  plaintiff  says  that  he  has 
sent  to  the  defendants,  according  to  their  partner's  order,  fifteen  hogs- 
heads of  the  finest  claret.     On  the  12th  of  October,  the  defendants 
replied  by  the  following  letter.    [His  lordship  read  the  material  parts, 
and  proceeded:]     Now  the  defendants'  account  of  the  contract  is,  that 
they  agreed  to  purchase  ten  hogsheads  only,  and  to  take  those  ten 
only  if  they  should  prove  satisfactory,  reserving  to  themselves  there- 
fore the  power  of  approving  of  them.     If  we  take  that  to  be  the  true 
account  of  the  contract,  it  was  a  contract  for  ten  hogsheads  only,  and 
the  defendants  were  not  bound  to  receive  them  unless  they  Avere  satis- 
fied with  them.     They  had  a  right  to  have  ten  specific  hogsheads 
deUvered  to  them,  aiia  t^ey  were  nori^^         to  pay  for  them  unless 
they  were  satisfactory.     If  ten  only  had  been  delivered,  and  they  had 
forborne  t.Q...1;a]ke,  any  object^  four  montlis,  that  would 

have  been  sufficient  evidence  that  they  approved  of  the  quality  of  the 
wine.  In  this  view  of  the  case,  the  plaintiff,  in  order  to  maintain  his 
action,  must  prove  that  a  specific  ten  were  delivered.  But  the  delivery 
of  fifteen  hogsheads,  under  a  contract  to  deliver  ten,  is  no  performance 
of  that  'contract,  for  t%^.perspn  to  'whoiu  they^are  sent "c^^^  tell 

which  are  the  ten  thTat  are  to  be  his;  and  it  is  no  answer  to  the  objec- 
tion to  say,  that  he  may  choose  which  ten  he  likes,  for  that  Avould  be 
to  force  a  iicav  contract  upon  him.     I  think  there  was  not  evidence, 
eillier  that  there  was  any  selection  of  any  particular  ten,  or  tliat  the 
precise  quantity  agreed  upon  was  sent.    The  delivery  of  more  than  ten 
is  a  proposal  for  a  new  contract.     If  this  be  the  true  account  of  the 
contract,  it  has  not  been  performed.     I  think  it  is  also  perfectly  clear 
that  the  defendants  never  accepted  the  ten  hogsheads.     They  objected 
to  the  quality  of  the  whole.     But  then  the  plaintiff  relies  upon  the 
letter  of  the  18th  of  October.     I  do  not  think  that  letter  removes  the 
difficulty.    [His  lordship  read  it  and  proceeded :]    Now  it  seems  to  me 
that  this  is  a  proposal  for  a  new  contract,  that  the  matter  shall  lie  over 
till  the  spring,  and  that  the  defendants  shall  then  taste  the  wine  and 
decide  whether  they  will  take  it  or  not.    That  second  contract  has  cer- 
tainly never  been  performed,  for  the  defendants  were  at  liberty  to  make 
their  objection  in  the  spring  on  trying  the  wine ;  and  they  did  try  it, 
and  rejected  it.    It  therefore  seems  to  mo  in  either  view,  that  the  plain- 
tiff has  not  made  out  his  case,  for  there  Avas  no  acceptance  within  the 


8ECT.  v.]  WOOD   V.    BELL.  847 

Statute;  and  if  there  was  any  contrnct  in  writincj,  it  was  a  contract  for 
ten  lioiislieads  only,  and  tlie  defendants  never  had  tlie  partieular  ten 
selected  and  delivered  to  them;  and  consequently  they  are  not  liable 
in  the  present  form  of  action, 

Alderson,  B.,  and  Pi.att,  B.,  concurred. 

Mautix,  B.  I  am  of  the  same  opinion.  I  think  there  was  no  evi- 
dence of  a  contract  for  fifteen  hogsheads;  but  assuming  that  there  was 
evidence  of  a  contract  for  t(.'n,  and  that  the  defendants  had  expressed 
themselves  satisfied  with  the  quality  of  the  wine,  and  had  agreed  to  take 
ten  out  of  the  fifteen,  I  am  of  ojiinion  that  the  ])laintift"  could  not 
maintain  this  action  for  the  ten  ;  for  I  think  that  the  ten  ought  to  have 
been  separated  from  the  fifteen.  But  then  the  defendants  afterwards, 
and  before  the  plaintiff  could  have  maintained  an  action  for  coods  sold 
and  delivered,  refused  to  take  any  ])art  of  the  wine.  I  therefore  think 
that  the  defendants  ought  to  succeed  in  the  present  action,  although  it 
may  be  that  the  refusal  to  take  the  wine  was  not  bondjide,  but  groinided 


upon  the  fact  that  th(j  wine  had  fallen  in  price.  Mule  absolute. 

^  W^$TERN  WOOD  v.   WILLIAM  BELL,  JAMES   RHODES,  '*' 

AND   FREDERICK  MOSER. 


\v  upon  the  tact  that  the 


In  the  Queen's  Bench,  January  12,  1856. 

{Reported  in  5  Ellis  Sp  Bladburn,  772  ] 


l:^ 


In  the  Exchequer  Chamber,  May  2,  1856.  ^   \ 


^fv 


[Reported  in  6  Ellis  Sf  Blackburn,  355.] 


■H 

A  SPECIAL  case  was  stated  in  this  action  for  the  opinion  of  the  court.  ^ 

There  were  no  pleadings,  but  only  a  Avrit  issued  on  the  27th  day  of  "^ 

March,  1855.     The  plaintiff  claimed  to  recover  certain  property,  or  its  i 

value,  and  damages -for  its  detention;  said  property  consisting  of  an  \^  >^    ^>4 

unfinished    steam  ves.sel,  called  the  Britannia,  and  certain  materials  V^    ^  ^ 

intended  and  prepared  to  be  used  in  her  further  construction;  also  j         >N 

parts  of  unfinished  engines,  in  course  of  construction  for  tlu'  Britan-  ^S       ^ 

nia.     The  defendants  were  assiixnces  of  William  .Tovce,  wlio  became  Vi       'l^ 

bankrui)t  on  the  11th  day  of  December,  1854,  being  then  engaged  in  r**"^  '^   ^ 

building   the   Britannia   under  a  contract  Avith  the  plaintiff.     When  W      ^\ 
the  action  was  brought,  the  defendants  were  in  possession  of  the  prop- 
erty in  question,  claiming  title  to  it  as  part  of  the  estate  of  Joyce, 
and  they  had  refused  to  deliver  it  to  the  plaintiff.     A  few  days  before 


^ 


848  WOOD    V.    BELL.  [CHAP.  II. 

the  bankruptcy,  the  unfinished  parts  of  the  engines  before  referred  to 
were  inventoried  for  the  plaintiff  as  belonging  to  the  Britannia,  the 
inventory  being  made  out  by  a  person  employed  by  the  plaintiff  for 
that  purpose,  Avith  the  assistance  of  Joyce.  The  remaining  facts  upon 
which  the  title  to  the  property  depended,  are  sufficiently  stated  in  the 
judgment  of  the  court.  It  was  agreed  that  the  court  should  draw 
such  inferences  of  fact  as  a  jury  ought  to  do.^ 

The  case  was  aro-ued  in  last  Michaelmas  terra. 

JBovill,  for  the  plaintiff.  The  decisions  have  established,  both  among 
ship-builders  and  amongst  lawyers,  the  doctrine  that  the  person  who 
has  ordered  a  ship  to  be  built  may  make  payments  in  advance  of  the 
price,  so  as,  in  case  the  builder  fails,  to  have  the  security  of  the  un- 
finished ship  if  it  be  appropriated  to  him.  Woods  v.  RusselP  was  the 
first  case.  There  the  bankrupt  builder,  Paton,  had  signed  the  cer- 
tificate to  enable  Russell,  the  person  for  whom  he  was  building  the 
vessel,  to  register  her.  Lord  Tenterden,  in  delivering  the  judgment 
of  the  King's  Bench,  whereby  it  was  decided  that  the  property  of  the^ 
ship  vested  in  Russell,  relies  much  on  this.  He  says:^  "The  signing 
of  the  certificate  here,  to  the  intent  that  the  defendant  might  obtain  a 
registry  in  his  own  name,  was  a  consent  that  what  was  necessary  to 
enable  the  defendant  to  obtain  such  registry  should,  as  between  them, 
be  conside^■ed  as  complete,  and  that,  as  the  defendant  would  have  to 
swear  that  he  was  the  sole  owner  of  the  ship,  the  OAvnership  should  be 
considered  his."  In  the  present  case,  the  punching  of  Wood's  name 
upon  the  keel  of  the  Britannia,  and  Joyce's  assent  to  the  making  of 
the  inventory,  are  strong  evidence  that  Joyce  agreed  that  the  OAvner- 
ship  should  be  considered  Wood's.  In  Clarke  v.  Spence,*  this  court, 
in  an  elaborate  judgment,  acted  upon  the  principle  that  the  ship  in 
building  Avas  appropriated  at  each  stage.  In  the  judgment  of  the 
court  it  is  said  that,  as  the  construction  put  upon  a  ship-building  con- 
tract in  Woods  v.  Russell  has  probably  been  acted  upon,  since  that 
decision,  by  persons  engaged  in  ship-building,  Ave  feel  that  Ave  ought 
not  to  depart  from  such  construction."  [Lord  Campbell,  C.  J.  Clarke 
V.  Spencc,*  if  it  is  to  be  questioned  at  all,  must  be  questioned  in  a 
court  of  error.  But  the  defendants,  no  doubt,  Avill  seek  to  distinguish 
it.]  The  foct,  on  which  the  court  there  much  relied,  that  the  ship  Avas 
built  under  the  superintendence  of  a  person  appointed  by  the  party 
ordering  the  ship,  exists  in  the  present  case.  In  Goss  v.  Quinton,^  the 
ship  was  considered  to  be  appropriated  by  facts  not  more  clearly  indi- 
cating an  intention  than  those  in  the  present  case. 

Then,  assuming  that  the  plaintiff  Avas  entitled  to  the  ship,  he  is 

1  The  statement  of  the  case  has  been  materially  abbreviated.  —  Ed. 

2  5  B.  &  Aid.  942.  3  5  B.  &  Aid.  947. 
*  4  A.  &  E.  448.  5  3  M.  &  G.  825. 


SECT,  v.]  WOOD   V.    BELL.  849 

entitled  to  compensation  in  damages  for  the  loss  of  her  use.     Bodley 
V.  Reynolds/  Fletcher  v.  Taylcur.- 

/Shee,  Serjt.,  contra.  The  ])rinciples  laid  down  in  Woods  v.  Rus- 
sell* and  Clarke  v.  Spence*  are  not  disputed.  The  question  is, 
whether  they  are  applicable  to  the  present  case.  Where  a  contract 
provides  that,  as  the  ship  reaches  certain  stages,  instalments  of  the 
price  shall  be  paid,  it  indicates  an  intention  that  the  property  in  the 
unfinished  ship  shall  vest  as  each  of  those  stages  is  attained.  Woods 
V.  Russell  and  Clarke  v.  Spence  decide  that  this  intention  is  eftectual 
in  law.  But,  unless  the  contract  for  the  purchase  of  a  chattel  to  be 
built  amounts  to  a  purchase  of  unfinished  articles,  the  property  does 
not  vest  till  the  chattel  is  complete.  Atkinson  v.  Bell.^  The  fact  that 
the  price  was  paid  in  advance  is  immaterial,  unless  it  Avas  part  of  the 
contract  that  the  property  should  be  purchased  piecemeal.  Mucklow 
V.  Mangles,*'  Laidler  v.  Burlinson,''  Blackburn  on  Contract  of  Sale,  160. 
In  the  present  case,  the  prepayments  stipulated  for  are  to  be  made  on 
fixed  days,  irrespective  of  the  stage  to  which  the  vessel  should  have 
progressed.  They  cannot,  therefore,  be  taken  to  indicate  an  intention 
to  purchase  the  ship  by  ])ieces.  [Erle,  J.  But  assuming  for  the  mo- 
ment that  the  law  was  as  you  state  it,  and  that  both  Wood  and  Joyce 
knew  it,  would  not  their  subsequent  conduct  amount  to  an  appropria- 
tion of  this  unfinished  vessel  to  Wood '?]  In  one  sense  it  -would.  In 
Wait  u.  Baker,*  Parke,  B.,  says:  "The  word 'appropriation'  may  be 
understood  in  different  senses.  It  may  mean  a  selection  on  the  part 
of  the  vendor,  where  he  has  the  right  to  choose  the  article  which  he 
has  to  supply  in  performance  of  his  contract ;  and  the  contract  will 
show  when  the  word  is  used  in  that  sense.  Or  the  word  may  mean 
that  both  jjarties  have  agreed  that  a  certain  article  shall  be  delivered 
in  pursuance  of  the  contract,  and  yet  the  property  may  not  pass  in 
either  case.  For  the  purpose  of  illustrating  this  position,  suppose  a 
carriage  is  ordered  to  be  built  at  a  coach-maker's ;  he  may  make  any 
one  he  pleases,  and,  if  it  agrees  with  the  order,  the  party  is  bound  to 
accept  it.  Now  suppose  that,  at  some  period  subsequent  to  the  order, 
a  further  bargain  is  entered  into  between  this  party  and  the  coach- 
builder,  by  which  it  is  agreed  that  a  particular  carriage  shall  be  deliv- 
ered. It  would  depend  upon  circumstances  whether  the  })roperty 
passes,  or  Avhether  merely  the  original  contract  is  altered  from  one 
which  would  have  been  satisfied  by  the  delivery  of  any  carriage  an- 
swering the  terras  of  the  contract,  into  another  contract  to  su])ply  the 
particular  carriage,  —  which,  in  the  Roman  law,  was  called  obliyatio 
certi  corporis,  where  a  person  is  bound  to  deliver  a  particular  chattel, 

1  8  Q.  B.  779.  2  17  Com.  B.  21.  s  5  b.  &  Aid.  942. 

<  4  A.  &  !<:.  448.  »  8  B.  &  C.  277,  282.  6  1  Taunt.  318. 

7  2  M.  &  W.  602.  8  2  Exch.  1,  8. 


850  WOOD    V.   BELL.  [CIIAP.  IL 

but  where  the  property  does  not  pass,  as  it  never  did  by  the  Roman 
law,  until  actual  delivery ;  although  the  property,  after  tlie  contract, 
remained  at  the  risk  of  the  vendee,  and,  if  lost  without  any  fault  in  the 
vendor,  the  vendee,  and  not  the  vendor,  was  the  sufferer.     The  law  of 
England  is  different;  here  property  does  not  pass  until  there  is  a  bar- 
gain with  res])ect  to  a  specific  article,  and  every  thing  is  done  which, 
according  to  the  intention  of  the  parties  to  the  bargain,  was  necessary 
to  transfer  the  property  in  it.     'Appropriation'  may  also  be  used  in 
another  sense,  and  is  the  one  in  which  ]\Ir.  Butt  uses  it  on  the  present 
occasion,  viz.,  where  both  parties  agree  upon   the  specific  article  in 
which  the  property  is  to  pass,  and  nothing  remains  to  be  done  in  order 
to  pass  it.     It  is  contended  in  this  case  that  something  of  that  sort 
subsequently   took   place."     In   Laidler   v.   Burlinson,^   the  bankrupt 
builder  acted  under  the  superintendence  of  Harris,  one  of  the  intended 
purchasers;  in  Atkinson  v.  Cell,^  there  had  been  alterations  made  by  a 
person  of  the  name  of  Kay,  who  acted  for  the  intended  purchasers. 
So,  in  Mucklow  v.  Mangles,^  the  painting  of  the  name  of  the  intended 
purchaser  on  the  stern  was  evidence  of  an  appropi'iation  such  as  to 
make  it  an  ohligatio  certi  corporis.     Yet  in  no  one  of  these  cases  did 
the  property  pass.     The  principles  laid  down  by  Parke,  B.,  in  Wait  v. 
Baker,*  are  precisely  those  of  Bayley,  J.,  in  Atkinson  v.  Bell,^  who 
says:  "It  is  said  that  there  was  an  appropriation  of  these  specific 
machines  by  the  maker,  and  that  the  property  thereby  vested  in  the 
defendants.     I  think  it  did  not  pass.     Where  goods  are  ordered  to  be 
made,  while  they  are  in  progress  the.  materials  belong  to  the  maker. 
The  property  does  not  vest  in  the  party  who  gives  the  order  until  the 
thing  ordered  is  completed.     And  although   while  the  goods  are  in 
progress  the  maker  may  intend  them  for  the  person  ordering,  still  he 
may  afterwards  deliver  them  to  another,  and  thereby  vest  the  property 
in  that  other.     Although  the  maker  may  thereby  render  himself  liable 
to  an  action  for  so  doing,  still  a  good  title  is  given  to  the  party  to 
whom  they  are  delivered.     It  is  true  that  Kay  saw  these  things  while 
they  were  in  progress,  and  knew  that  the  bankrupt  intended  them  for 
the  defendants ;  yet  they  might  afterw^ards  have  been  delivered  to  a 
third  person."      The  case   of  Woods  v.  Russell^   is   distinguishable. 
The  foundation  of  that  decision  was,  that  as,  by  the  contract,  given 
portions  of  the  price  were  to  be  paid  according  to  the  progress  of  the 
work,  by  the  payment  of  those  portions  of  the  price  the  ship  was  irrev- 
ocably appropriated  to  the  person  paying  the  money.     That  was  a 
purchase  of  tlie  specific  articles  of  which  the  ship  was  made.     Besides, 
there  the  ship-builder  had  signed  the  certificate  to  enable  the  purchaser 
to  have  the  ship  registered  in  his  name,  the  legal  effect  of  which  Avas 

1  2  M.  &  W.  602.  2  8  B.  &  C.  277.  ^  i  Taunt.  318. 

*  2  Exch.  1.  5  8  B.  &  C.  282.  6  5  b.  &  Aid.  942. 


SECT,  v.]  WOOD    V.    BELL.  851 

held  to  be  to  vest  the  general  property  in  the  purchaser.  And  in  Laid- 
ler  V.  Biulinson,'  the  court  lay  down  the  same  princi])les.  At  all  events, 
the  property  in  the  loose  materials  cannot  have  vested.  [Lord  Camp- 
bell, C.  J.  The  articles  specified  in  the  case  had  been,  under  the 
circumstances,  appropriated  to  the  Britannia,  so  as  to  be  part  of  her. 
Whether  the  Britannia  was  the  property  of  the  plaintiff  is  a  different 
matter.]  Then,  as  to  the  special  damages,  they  are  not  recoverable. 
Reid  V.  Fairbanks.-  [Lokd  Campbell,  C.  J.  Whatever  be  the  meas- 
ure of  the  damages  in  cases  of  contract,  we  cannot  say  that  there  may 
not  be  special  damages  in  tort  beyond  the  value  of  the  chattel.  Bod- 
ley  V.  Reynolds  ^  is  express;  and  we  approve  of  it.] 

JBovill^  in  reply.  There  Avas  here  an  assent  by  both  parties  to  take 
the  property.  A  subsequent  assent  may  convert  what  before  was  a 
mere  agreement  to  sell  into  an  actual  sale ;  and  the  property  thereby 
passes.    Rohde  v.  Thwaites,^  Blackburn  on  Contract  of  Sale,  127. 

Cur.  adv.  vult. 

Lord  Campbell,  C.  J.,  now  delivered  judgment. 

The  facts  of  this  case,  so  far  as  they  are  material  to  the  decision  of 
the  question  before  us,  may  be  briefly  stated  as  follows.  Early  in 
March,  1854,  Joyce,  a  ship-builder  and  manufacturer  of  steam-engines 
for  ships,  contracted  with  Wood,  the  plaintiff,  to  build  for  him  a  screw 
steamer,  according  to  specifications  then  rendered  to  him  by  one 
John  Hall,  for  £16,000,  ^^ayable  in  instalments  of  four  several  sums  of 
£1000  each,  on  days  named  in  four  successive  months;  £3000  on  a  day 
rntniecTTn  two  months  from  the  last  of  the  four  preceding,  provided 
the  vessel  was  then  plated  and  her  decks  laid;  £3000  on  a  day  named 
in  the  second  month  from  the  last  preceding,  provided  she  was  then 
ready  for  trial ;  £3000  on  a  day  named  in  three  months  from  that  last 
named,  provided  she  was  according  to  contract,  and  properly  com- 
pleted;  and  the  fourth  and  last  £3000  on  a  day  named,  two  months 
from  that  last  named,  or  by  bill  of  exchange  to  be  due  at  that  time. 
Under  this  contract  the  building  of  the  vessel  commenced  in  the  same 
~1rnbnth  of  March,  1854,  and  Avas  carried  on  to  December  in  that  year, 
■when  all  work  in  Joyce's  building  yard  ceased,  he  having  become  a 
bankrupt ;  she  being  at  that  time  on  the  slip,  in  frame,  not  decked,  and 
about  two-thij-ds  or  more  ])lated.  The  instalments  contracted  for  were 
paid  in  advance;  the  building  of  tEe^ vessel  was  carried  on  under  the 
superintendence  of  Mr.  Hall  on  behalf  of  the  plaintiff;  he  examined  the 
materials  intended  for  her  before  they  were  used  ;  caused  alterations  to 
be  made  in  them  when  he  thought  it  necessary,  and  other  materials  to 
be  substituted  for  such  as  he  rejected.     Soon  after  the  building  of  the 

1  2  M.  &  W.  602.  -i  13  Com.  B.  692. 

3  8  Q.  B.  779.  *  6  B.  &  C.  388. 


852  WOOD   V.    BELL.  [CHAP.  H. 

ship  began,  the  plaintiff  named  her  the  Britannia;  and  she  was  thence- 
forth known  by  that  name  by  Joyce  and  his  workmen.  In  July, 
John  Hall,  by  the  plaintiff's  direction,  requested  Joyce  to  have  the 
plaintiff's  name  punched  on  her  keel.  Joyce  knew  that  this  was  for 
the  purpose  of  securing  her  to  the  plaintiff;  and  he  consented  to  its 
being  done.  It  was  not,  however,  done  at  that  time,  because  her  keel 
was  not  for  enough  advanced  for  the  purpose;  it  was,  hoAvever,  done 
in  October  by  direction  of  Joyce,  on  a  second  requisition  made  on 
behalf  of  the  plaintiff.  In  the  month  of  November,  the  solicitors 
of  the  plaintiff  pressed  Joyce,  whose  affairs  had  become  embarrassed, 
to  make  a  formal  assignment  to  him  of  the  Britannia,  and  the  engine 
and  other  fittings  then  in  preparation  for  her,  which  he  dechned 
to  do,  on  the  ground  that  he  would  thereby  be  signing  himself  and 
his  creditors  out  of  every  thing  he  possessed ;  but,  at  the  same  time, 
he  admitted  that  she  Avas  the  property  of  the  plaintiff.  Her  steam- 
engines  were  designed  on  a  peculiar  plan  to  economize  room;  and.^,.,,^^^ 
engine  room  was  adapted  to  this  construction ;  the  -engine  work  was 
carried  on  contemporaneously  by  Joyce  with  the  building  of  the  vessel; 
the  parts  of  the  engines  Avere  made  and  marked  so  as  to  fit  together ; 
they  are  easily  recognizable  as  parts  of  the  same  whole ;  and  during  the 
period  in  question  none  other  Avere  constructed  by  him.  Iron  plates 
and  angle  irons  made  for  the  Britannia,  upon  her  designs,  and  pre- 
arranged for  different  parts  of  her,  but  not  yet  riveted  to  her,  and 
plankings  intended  and  prepared  for  her,  but  not  fastened  to  her,  Avere 
on  Joyce's  Avharf  at  the  date  of  the  bankruptcy. 

Upon  these  facts  the  first  and  most  material  question  for  our  deter- 
mination is,  whether  the  Britannia  and  the  different  descriptions  of 
property  before  enumerated,  or  any  and  Avhich  of  them,  belong  to  the 
plaintifi;  or  to  the  defendants,  the  assignees  of  Joyce?  The  answer  to 
this  question  must  depend  on  the  construction  of  the  contract  between 
the  parties.  At  the  time  at  which  it  Avas  made  Joyce  Avas  free  to  make 
such  contract  as  he  should  please  in  respect  of  his  goods,  and  of  the 
produce  of  his  labor.  We  are  to  ascertain,  therefore,  Avhat  in  fact  Avas 
the  contract  Avhich  he  did  make.  When  a  man  contracts  Avith  another 
to  make  any  article  for  him  for  a  given  price,  the  general  rule  is,  in  the 
absence  of  all  circumstances  from  Avhich  a  contrary  conclusion  may  be 
inferred,  that  no  property  passes  in  the  chattel  until  it  be  completed 
and  ready  for  delivery ;  on  the  other  hand,  Avhere  a  bargain  is  made 
for  the  purchase  of  an  existing  ascertained  chattel,  the  general  rule,  in 
the  same  absence  of  opposing  circumstances,  is,  that  the  property 
passes  immediately  to  the  vendee ;  that  is,  that  there  is  at  once  a  com- 
plete bargain  and  sale.  But  these  general  rules  are  both  and  equally 
founded  on  the  presumed  intention  of  the  parties.  If,  in  the  first,  there 
are  attendant  circumstances  from  Avhich  the  intention  may  be  inferred 
that  the  property  shall  pass  in  the  incomplete  and  groAving  chattel  as 


SECT,  v.]  WOOD    V.    BELL.  853 

the  m:mufactuvo  of  it  proceeds,  or  even  in  ascertained  materials  from 
which  it  is  to  be  carried  to  perfection,  that  intention  will  be  effectu- 
ated ;  and  equally  in  the  latter,  if  it  appear  that  the  parties  intended 
to  postpone  the  transfer  of  the  property  till  the  payment  of  the  price  or 
the  performance  of  any  other  condition,  such  intention  will  be  u])held 
in  the  courts  of  law.  This  principle  we  believe  to  be  settled  :  and  what- 
ever apparent  difference  may  be  found  in  the  leading  decisions  on  this 
point  turns  rather  on  the  weight  given  to  particular  circumstances  as 
evidences  of  intention,  that  is  to  say,  in  the  ap])lication  of  the  same 
principle  to  the  determination  of  the  cases,  rather  than  to  any  dispute 
about  the  principle  itself  Previous  decisions,  therefore,  are  mainly 
useftil  as  serving  to  guide  our  judgment  in  estimating  the  weight  of 
circumstances  as  evidence  of  intention ;  and  in  this  way  they  are  of 
great  importance ;  because,  where  certain  incidents  have  been  held  to 
disclose  the  intention  to  pass  immediately,  or  to  postpone  the  passino- 
of  property,  it  may  be  presumed  that  succeeding  judges  will  give  a 
similar  effect  to  the  same  incidents  in  succeeding  contracts;  and  parties 
therefore,  especially  in  trade  contracts,  will  purposely  introduce  or 
withhold  them,  in  order  to  give  effect  with  more  certainty  to  their 
intention,  the  oneway  or  the  other.  Cases  therefore  such  as  Woods  v. 
Russell,^  Clarke  v.  Spence,^  Laidler  v.  Burlinson  ^  (and  many  others 
might  be  named),  were  most  -properly  referred  to  in  argument ;  and  we 
ought,  for  both  the  reasons  we  have  just  mentioned,  carefully  to  adhere 
to  whatever  we  find  decided  in  them  which  is  applicable  to  any  con- 
tract which  we  may  have  to  construe.  Still  it  must  be  remembered, 
after  all,  that  what  we  have  to  determine  is  a  question  of  fact,  namely, 
what  upon  a  careful  consideration  of  all  the  circumstances  we  believe 
to  have  been  the  contract  into  which  the  parties  have  entered.  Look- 
ing then  to  the  facts  of  this  case,  we  find  that  the  vessel  was  to  be  paid 
for  by  instalments,  the  four  first  on  days  named,  and  unconditionally, 
with  no  express  reference  to  the  stage  in  her  building  to  which  she 
might  be  advanced  on  the  arrival  of  those  days;  nor  are  we  enabled  to 
say  that  the  sums  named  for  each  payment  would  be  commensurate  with 
her  probable  progress  on  those  days.  The  three  next  instalments  are 
also  made  payable  on  days  certain  ;  but  the  two  first  of  these  payments 
are  made  to  depend  on  her  having  been  carried  on  to  certain  specific 
stages  in  her  building  on  those  days  respectively ;  and  this,  as  an  indi- 
cation of  intention,  seems  to  us  substantially  the  same  as  if  the  days 
had  not  been  fixed,  but  the  payments  made  to  be  due  expressly  when 
those  stages  had  been  reached :  the  payment  of  the  third  is  made  to 
depend  on  her  being,  on  the  day  named,  built  according  to  contract ; 
and  this  is  not  inconsistent  with  her  being  the  property  of  the  plaintiff, 
even  though  she  should  not  be  in  all  respects  built  according  to  cou- 

1  5  B.  &  Aid.  942.  2  4  A.  &  E.  448.  »  2  M.  &  W.  602. 

VOL.  I.  55 


854  WOOD   V.    BELL.  [CHAP.  II. 

I 

tract ;  the  instalment  may  be  made  liable  to  detention  in  order  to  secure 
her  being  made  so  :  the  last  instalment  is  made  payable  at  a  later  day ; 
and  no  inference  can  be  drawn  either  way  from  that  circumstance. 

The  differences  we  have  pointed  out  as  to  the  times  of  payment  were 
relied  upon  by  my  brother  Shee  as  distinguishing  this  case  from  Woods 
V.  Russell  1  and  Clarke  v.  Spence.^     We  do  not  think  the  differences 
\      very  material  when  looked  on  merely  with  a  view  of  ascertaining  the 
'     intention  of  the  parties ;  and  we  attach  the  less  importance  to  them, 
because  the  former  case  was  not  decided  upon  the  inference  to  be  drawn 
from  this  incident  in  the  contract;  and  in  Clarke  v.  Spence,  it  is  ad- 
mitted that  this  incident,  taken  alone,  rather  shows  an  appropriation  of 
the  particular  parts  so  paid  for,  than  the  transference  of  the  gtftieral 
property  at  any  time  before  the  whole  vessel  is  completed.     The  next 
circumstance  was  considered  in  Clarke  v.  Spence  to  be  more  material, 
namely,  that  the  building  was  to  be  carried  on  under  the  superintend- 
ence of  an  agent  of  the  plaintiff's,  who  was  to  decide  on  the  introduc- 
tion of  all  materials  into  her.     It  certainly  could  not  be  contemplated 
that  he  was  to  superintend  the  building  of  more  than  one  vessel  under 
this  contract,  or  that  he  was  to  superintend  the  building  of  any  vessel 
which  Joyce  could  at  his  pleasure  transfer  to  another  person ;  still  it 
must  be  admitted  that  this  is  by  no  means  conclusive  as  to  the  ques- 
tion of  property ;  it  may  be  that  it  would  have  been  a  breach  of  contract 
not  to  deliver  this  specific  vessel  to  the  plaintiff  as  soon  as  she  was  com- 
pleted, and  yet  the  property,  until  she  was  completed,  might  have  re- 
mained in  Joyce.    But  two  facts  still  remain.   Joyce,  at  the  instance  of 
the  plaintiff,  punches  his  name  on  her  keel,  expressly  for  the  purpose  of 
securing  her  to  the  plaintiff;  and,  although  he  refuses,  after  this,  to  exe- 
cute a  formal  assignment   of  her   to   the   plaintiff,  he   at   the   same 
time  admits  her  to  be  the  plaintiff's  property.     Both  these  circum- 
stances occur  when  Joyce  was  the  master  of  his  property,  and  appear  to 
us  of  the  greatest  importance  ;  they  tlirow  a  light  on  the  preceding  cir- 
cumstances, and  show  how  they  are  to  be  understood,  in  so  far  as  they 
were  in  themselves  ambiguous ;  and  they  would  be  all  but  conclusive 
evidence  against  Joyce,  as  direct  recognitions  that  the  property  in  the 
vessel  had  passed  from  himself  to  the  plaintiff.     If  it  be  said  that  the 
request  on  the  part  of  the  plaintiff  to  have  a  formal  assignment  is  evi- 
dence of  an  admission  on  his  part  that  the  property  had  not  yet  passed 
to  him,  the  answer  is  that  it  was  not  unnatural,  or  inconsistent  with  the 
claim  he  now  sets  up,  that  he  should,  under  the  circumstances,  desire 
some  more  direct  and  producible  evidence  of  his  title  than  that  on 
which  he  must  otherwise  stand.    And,  if  it  be  said  that  Joyce's  refusal 
to  execute  the  assignment  detracts  from  the  weight  of  his  admission, 
because  inconsistent  with  it,  the  answer  is,  that  it  is  more  fairly  attrib- 

1  5  B.  &  Aid.  942.  4  A.  &  E.  448. 


SECT,  v.]  WOOD    V.    BELL.  855 

utable  to  the  unprincipled  desire  of  a  failing  man  to  cling  to  that  which 
he  may  yet  look  to  as  the  means  of  raising  money  while  in  his  posses- 
sion, and,  as  he  may  suppose,  of  staving  off  his  entire  ruin.  The 
admission  referred  to  is  a  circumstance  exactly  of  the  same  kind  as  that 
on  which  the  decision  in  Woods  v.  RusselP  mainly  turned,  namely, 
Paton's  signing  the  certificate  to  enable  Russell  to  have  th*e  ship  regis- 
tered in  his  own  name.  On  this  Abbott,  C.  J.,  remarks :  "  In  order  to 
register  the  ship  in  Russell's  name,  an  oath  would  be  requisite  that  he 
was  the  owner ;  and  Avheu  Taton  concurred  in  what  he  knew  was  to 
lead  to  that  oath,  must  he  not  be  taken  to  have  consented  that  the 
ownership  should  really  be  as  that  oath  described  it  to  be?"  And 
when  Joyce  tells  the  solicitors  of  the  plaintiff  that  the  ship  is  the  prop- 
erty of  the  plaintiff,  can  he,  or  the  assignees  who  claim  under  him,  be 
heard  to  allege  the  contrary  as  to  a  fact  which  must  have  been  entirely 
within  his  own  knowledge? 

On  a  review  of  all  these  circumstances,  which  are  all  consistent  with 
each  other,  and  Avhich  miitually  strengthen  each  other,  we  have  come 
to  the  conclusion  fhat  the  property  in  the  Britannia  passed  to  the 
plaintiff  as  she  advanced  in  her  progress  towards  completion ;  and,  if 
this  be  so,  it  was  scarcely  contended  but  that  the  same  decision  ought 
to  be  come  to  with  resjDCct  to  the  engines,  plates,  irons,  and  plankings 
designed  and  in  a  course  of  preparation  for  her,  and  intended  to  be 
fixed  in  her.  The  question  as  to  these  last  seems  to  be  governed  by 
the  decision  as  to  the  rudder  and  cordage  in  Woods  v.  Russell. 

In  the  course  of  the  argument  we  intimate  our  opinion  that  special 
damage  beyond  the  mere  value  of  the  property  might  be  recoverable ; 
and  we  remain  of  that  opinion. 

Our  judgment,  therefore,  will  be  for  the  plaintiff,  with  the  usual 
costs. 

Judgment  was  afterwards  entered  that  the  plaintiff  do  recover 
against  the  defendants  "  the  said  ship  Britannia,  the  said  parts  of  en- 
gines, the  said  iron  plates,  and  angle  irons,  and  the  said  j^lanking  and 
timbers,  and  also  2200?.,  the  special  damages  by  the  said  Western  Wood 
sustained,  and  ascertained  by  the  said,"  &c.  (an  arbitrator),  "  and 
also,"  &c.  (costs). 

The  defendants  suggested  error  on  this  judgment,  in  the  Court  of 
Exchequer  Chamber ;  Avhich  the  plaintiff  denied. 

The  case  was  now  argued. 

Shee,  Serjt.,  for  the  party  suggesting  error  (the  defendants  below). 

First :  as  to  the  ship.  .  The  defendants  do  not  dispute  the  principles 
laid  down  in  the  court  below ;  but  they  deny  the  aj)plioability  to  the 
particular  facts  of  this  case.     The  general  rule  is  that  the  property  in 

1  6  B.  &  Aid.  942. 


856  WOOD    V.    BELL.  [chap.  II. 

an  article  made  to  order  does  not  pass  till  the  article  is  complete  ;  but 
it  may  pass  before,  if  the  parties  agree  that  it  shall.  The  question  is, 
whether  this  case  is  within  the  general  rule  or  the  exception.  The 
general  rule  prevailed  in  Mucklow  v.  Mangles/  though  there  the  name 
of  the  intended  purchaser  had,  as  here,  been  put  on  the  ship  :  and 
Abbott,  C.  tr.,  in  Woods  v.  Russell,"  considered  that  circumstance  im- 
material ;  and  he  decided  Woods  v.  Russell,  on  grounds  not  existing 
here.  The  ship  there  was  chartered  by  the  purchaser  ;  and  the  builder 
was  a  party  to  the  registration  in  the  name  of  the  purchaser.  The 
case,  as  is  said  in  the  judgment,  did  not  depend  on  the  payment  of  the 
instalments.  And  in  the  5th  edition  of  Abbott  on  Shipping  (the  last 
published  in  the  author's  lifetime),  p.  44,  the  decision  is  not  put  on 
that  footing.  Clarke  v.  Spence  ^  was  decided  mainly  on  the  authority  of 
Woods  V.  Russell,  though  the  only  circumstance  common  to  the  two 
cases  seems  to  have  been  the  payment  of  instalments,  and  the  appoint- 
ment by  the  purchasers  of  a  person  to  superintend  the  work.  In 
Laidler  v.  Burlinson,*  the  Court  of  Exchequer  decided  that  the  prop- 
erty did  not  pass,  under  the  particular  circumstances  of  that  case ;  and 
the  decision,  perhaps,  does  not  go  far  towards  determining  the  present 
case.  But  it  cannot  be  collected  from  the  facts  here  that  any  intention 
existed  of  passing  the  property  in  the  vessel  while  in  an  incomplete 
state.  The  word  "  intention  "  is  always  liable  to  ambiguity  :  the  safe 
course  is  to  rely  only  on  an  intention  executed.    Ellershaw  v.  Magniac.^ 

Supposing  the  ship  itself  to  have  passed,  the  next  question  is  as  to 
the  materials  which  had  not  been  affixed  to  the  ship.  All  that  appears 
is  that  the  builder  intended  to  use  them  for  the  ship :  he  did  not  in 
fact  so  use  them  :  nor  if  they  were  not  approved  of,  could  he  have 
done  so.  In  Woods  v.  Russell,  the  rudder  and  cordage  seem  to  have 
been  bought  for  the  ship  with  the  intention  of  making  them  a  part,  eo 
instanti.  In  Baker  v.  Gra}^,^  the  builder  agreed  with  the  intended 
purchaser  that,  if  the  builder  failed  to  complete  the  ship  according  to 
the  ao-reement,  the  purchaser  might  use  such  of  the  builder's  materials 
as  should  be  applicable  to  the  purpose.  The  builder  not  having  com- 
pleted the  ship  according  to  contract,  the  purchaser  took  possession  of 
the  incomplete  ship,  and  also  selected  some  of  the  builder's  materials,  a 
part  of  which  he  placed  in  the  carcass  of  the  ship ;  but  before  he  had 
used  any,  the  builder  became  bankrupt:  and  it  was  held  that  the 
assio-nees  were  entitled  to  the  materials.  Tripp  v.  Armitage  "^  is  to  the 
same  eftect.     [Jervis,  C.  J.,  referred  to  Goss  v.  Quinton.*  ] 

As  to  the  question  of  special  damage.     The  damage  sustained  by 
the  plaintiff  is  the  value  of  the  ship  at  the  time  of  the  conversion. 

1  1  Taunt.  318.  2  5  B.  &  Aid.  942.  »  4  A.  &  E.  448. 

4  2  M.  &  W.  602.  5  6  Exch.  570,  note.  «  17  Com.  B.  462. 

1  4  M.  &  W.  687.  8  3  M.  &  G.  825. 


SECT,  v.]  WOOD   V.  BELL.  857 

Reid  V.  Fairbanks.^  It  is  not  necessary  to  dispute  the  authority  of 
cases  in  wliieh  si)ecial  damage  is  stated  and  proved  ;  such  as  Davis  v. 
Oswell  ^  and  Bodley  v.  Reynolds.'*  Here,  there  being  no  pleadings, 
no  special  damages  can  be  understood  to  be  claimed  ;  and  they  cannot 
be  recovered  unless  claimed.  Moon  v.  Raphael.^  Nor,  according  to 
general  principles,  can  the  loss  of  part  of  contingent  and  remote  profits 
form  part  of  the  damages  recoverable.  In  Sedgwick  on  the  Measure  of 
Damages,  p.  78  (ch.  3),  it  is  said,  after  referring  to  Flureau  v.  Thorn- 
hill:'^  "Both  the  English  and  American  courts  have  generally  adhered 
to  this  denial  of  profits  as  any  part  of  the  damages  to  be  compensated; 
and  that  whether  in  cases  of  contract  or  of  tort." 

Bovill,  contra  (for  the  plaintiff  below).  First:  the  plaintiff  was  en- 
titled to  recover  in  respect  of  the  body  of  the  ship.  (On  this  point  he 
was  stopped  by  the  court.) 

As  to  the  materials  which  were  not  fixed.  In  Woods  v.  Russell,' 
the  cordage  and  rudder  were  not  fixed.  [Bramwell,  B.  If  you 
defend  the  judgment  below,  as  to  the  body  of  the  ship,  on  the  principle 
which  seems  there  adopted,  of  an  intention  executed  and  irrevocable, 
you  Avill  find  it  difficult  to  apply  that  to  the  materials  which  were  not 
fixed.]  The  goods  were  irrevocably  appropriated  as  soon  as  one  party 
hail  selected  them  for  the  purpose,  and  the  act  of  selection  had  been 
adopted  by  the  other  party.  Blackburn  on  the  Effect  of  the  Contract 
of  Sale,  126,  129.  Joyce  could  not  have  sold  these  materials  to  a  third 
party.  [Bramwell,  B.  Suppose  the  builder  had  a  forest  of  timber, 
and  marked  certain  grooving  trees.]  Those  would  not  be  chattels  at 
all.  [Ai>DERS0x,  B.  Suppose  a  bulk  of  timber,  and  half  of  it  to  have 
been  actually  used  in  the  building  of  the  ship,  the  builder  intending 
to  use  the  rest  in  the  same  way.]  All  would  probably  be  held  to 
pass.  [Cresswell,  J.  One  contract  only  is  set  up.]  There  is  a 
fresh  contract  at  the  time  of  each  assent.  [Cresswell,  J.  At  what 
price?]  At  the  price  actually  paid.  [Cresswell,  J.  That  will 
apply  to  the  ship  only.]  The  inventory  furnishes  evidence  of  the 
conduct  of  the  parties  from  which  the  same'  inference  arises  as  in  the 
case  of  the  ship. 

As  to  the  special  damage.  The  objection  to  the  absence  of  allega- 
tion does  not  arise,  there  having  been  no  record  at  all.  The  question 
is,  whether  the  facts  show  such  damage.  And  it  is  plain  that  the 
plaintiff,  if  he  had  received  the  ship  at  the  time  when  he  was  entitled 
to  it  by  the  contract,  might  have  earned  a  considerable  sum  by  em- 
ploying it.  [Jervis,  C.  J.  Certainly,  in  an  action  for  non-delivery  of 
a  plank,  you  would  not  be  confined  to  the  value  which  it  might  bear 

1  13  Com.  B.  G92.  '-i  7  Car.  &  P.  804.  3  8  Q.  B.  779. 

*  2  New  Ca.  310.  5  2  W.  Bl.  1078.  6  5  b.  &  Aid.  942. 


858  WOOD   V.   BELL.  [CHAP.  II. 

at  the  time  of  the  verdict :  it  might  have  rotted  in  the  mean  while.] 
The  plaintiff  is  to  recover  all  he  has  lost  by  the  conversion. 

Jervis,  C.  J.  I  think  this  case  should  go  back  to  the  arbitrator. 
In  substance,  the  judgment  below  is  reversed.  I  agree  with  the  court 
below  that  the  ship  passed.  That  question  is  merely  one  of  fact ;  as 
well  put  in  Mr.  Blackburn's  useful  work,^  the  property  does  not  pass 
merely  by  its  being  manufactured,  but  only  when  it  is  the  intention  of 
the  parties  that  it  shall  pass.  And  here  I  think  the  facts  show  such  an 
intention.  I  further  concur  with  the  details  of  the  judgment  below,  so 
far  as  the  ship  is  concerned.  But  I  do  not  think  that,  as  the  court 
below  seems  to  have  held  without  much  consideration,  the  unfixed 
materials  destined  for  the  ship  did  pass.  They  do  not  appear  to  have 
been  circumstanced  exactly  as  the  rudder  and  cordage  were  in  Woods 
V.  Russell,^  where  they  had  become,  it  seems,  a  part  of  the  ship.  Here 
they  are  merely  provided  for  the  ship.  If  the  circumstances  in  Woods 
V.  Russell  were  the  same  as  here,  I  should  doubt  whether  the  de- 
cision in  that  case  was  right ;  and  I  should  say  the  same  as  to  Goss  v. 
Quinton.^  The  question  is,  What  is  the  ship  ?  not,  What  is  meant  for 
the  ship  ?  I  think  those  things  pass  which  have  been  fitted  to  the 
ship,  and  have  once  formed  part  of  her,  as,  for  instance,  a  door  hung 
upon  hinges,  although  afterwards  removed  for  convenience.  I  do  not 
think  the  circumstance  that  materials  have  been  fitted  and  intended 
for  the  ship,  makes  them  part  of  the  ship.  The  consequence  is  that  the 
arbitrator  has  assessed  the  damages  at  2200/.  on  an  assumption  which 
we  consider  wrong,  as  he  will  have  included  many  items  in  respect  ot 
which  the  plaintiff  is  not  entitled  to  damages.  The  case  may  as  well 
stand  over  for  a  few  days ;  and  in  the  mean  while  a  schedule  may  be 
made  out,  showing  what  each  party  claims. 

Pollock,  C.  B.,  Alderson,  B.,  Ckesswell,  J.,  Crowder,  J.,  Willes, 
J.,  and  Bramwell,  B.,  concurred. 

In  the  following  Trinity  term  (June  2,  1856),  before  Jervis,  C.  J., 
Pollock,  C.  B.,  Cresswell,  Williams,  Crowder,  and  Willes,  JJ., 
and  Martin  and  Bramwell,  BB.,  the  case  was  resumed ;  Shee^  Serjt., 
appeai-ing  for  the  defendants  below,  and  Bovill  for  the  plaintiff  below  : 
when  a  discussion  took  place  as  to  the  principle  upon  which  the  dama- 
ges were  to  be  assessed. 

The  Court  said  that,  the  judgment  being  wrong  as  to  a  part  and 
the  damages  being  entire,  the  regular  course  was  to  order  a  venire  de 
novo;  that  consequently  here  the  case  ought  to  go  back  to  the  arbitra- 
tor ;  and,  as  the  plaintiff  was  entitled  to  recover  in  respect  of  the  ship, 
but  not  in  respect  of  the  unfixed  materials,  the  arbitrator  would  assess 
the  damages,  if  any,  recoverable  in  respect  of  the  shijD  only.  But  they 
declined  giving  any  more  specific  directions  as  to  the  damages. 

1  On  the  Effect  of  the  Contract  of  Sale,  Part  II.  ch.  2. 

2  5  B.  &  Aid.  942.  a  3  m.  &  G.  825. 


A 


' ^ 


SECT,  v.]         ^^^  ^^AlDItlii^^JbHN^^^^  /^//%C^^ 


JAMES  WILSIIER  ALDRmGE  w.  PATRICK  JOUXSOnT*^  '^         ^ 

/'V*:  >»/^  Z-- 

In  the  Queen's  Bench,  June  5,  1857. 


[Reported  in  7  JE^/ZiS  ^  Blackburn,  885.]  ^         ,  ^^ 

/^^,  -»**  This  was  an  action  brouirht  bv  the  plaintiff  to  recover  ceruiin  adoas 


■(■■U^/if^  This  was  an  action  brought  by  the  plaintiff  to  recover  certain  gdoas 
alleged  to  be  his  property,  and  to  have  been  detained  by  the  defend- 
ant; or  the  value  of  such  goods,  and  damages  for  their  detention;  and 
also  to  recover  damages  for  the  wrongful  conversion  of  the  same  goods 
by  the  defendant. 

The  defendant  pleaded  to  the  whole  declaration :  first,  not  guilty ; 
and,  secondly,  that  the  goods  were  not  the  plaintiff's  property. 

On  the  trial  before  Erie,  J.,  at  the  sittings  in  London  in  last  Hilary 
term,  a  verdict  was  found  for  the  plaintiff,  by  consent,  for  the  whole 
amount  of  his  claim,  and  costs  40s.,  subject  to  the  opinion  of  the  court 
upon  the  following  case:  — 

The  plaintiff  is  a  corn-merchant  at  Witham,  in  Essex;  and  the 
defendant  is  the  official  assignee  of  the  estate  and  effects  of  one  James 
Watling  Knights,  a  bankrupt,  who,  up  to  the  time  of  his  bankruptcy, 
as  hereinafter  mentioned,  carried  on  business  at  Ipswich  in  Suffolk  as 
an  auctioneer  and  seed-merchant. 

On  12th  September,  1856,  the  plaintiff  took  thirty-four  bullocks  to 
Ipswich  for  the  purpose  of  having  them  sold  by  auction  by  the  said  J. 
W.  Knights,  and  instructed  Knights  to  sell  them  if  they  should  fetch 
a  certain  price.  Tliey  did  not,  however,  fetch  that  price,  and  conse- 
quently were  bought  in  by  the  plaintiff.  Knights  then  informed  the 
plaintiff  that  he  had  a  quantity  of  barley  in  his  granary,  and  proposed 
to  exchange  a  portion  of  it  for  the  plaintiff's  bullocks.  The  plaintiff 
went  and  looked  at  the  barley,  which  consisted  at  that  time  of  one 
large  heap  containing  between  200  and  300  quarters.  He  weighed  a 
bushel  of  it  for  the  purpose  of  ascertaining  its  quality,  and  took  a  sam- 
ple away  with  him;  but  no  bargain  was  made  on  that  day;  and  the 
bullocks  were  sent  to  Colchester  the  same  evening.  On  the  following 
day  (13th  September),  the  plaintiff  and  Knights  were  at  Colchester 
market ;  and  the  plaintiff  sold  two  of  his  bullocks  there ;  after  which 
a  conversation  took  place,  between  the  plaintiff  and  Knights,  upon  the 
subject  of  the  exchange  proposed  on  the  previous  day,  which  resulted 
in  the  following  arrangement  between  them :  — 

It  was  agreed  that  Knights  should  have  the  remaining  thirty-two 
bullocks  at  the  price  of  £6  apiece,  and  that  the  plaintiff  should  take  in 
exchange  100  quarters  of  the  barley  wliich  he  had  seen  at  Ipswich  the 


^^^ 


860  ALDRIDGE    V.    JOHNSON.  [CHAP.  II. 

day  before,  at  the  price  of  £2  3s.  a  quarter.  The  difference  between 
the  value  of  the  barley  and  of  the  bullocks,  viz.,  £23,  was  to  be  paid  in 
cash  by  the  plaintiff  to  Knights.  It  was  further  agreed  that  the  plain- 
tiff should  send  his  own  sacks  to  Ipswich  on  the  following  Monday 
(15th),  and  that  Knights  should  fill  the  sacks  with  the  barley,  take 
them  to  the  railway,  and  place  them  upon  trucks,  free  of  charge,  to  be 
conveyed  to  the  plaintiff  at  Witham.  Something  was  also  said  about 
a  sura  of  £20  7.s.,  which  the  plaintiff  owed  Knights  for  some  goods 
which  he  had  previously  purchased ;  but  it  was  agreed  that  this  trans- 
action should  not  interfere  with  the  arrangement  which  was  then  being 
made. 

As  soon  as  this  arrangement  was  effected,  the  plaintiff  made  a  note 
of  it  in  his  pocket-book,  and  the  thirty-two  bullocks  were  then  and 
there  delivered  by  the  plaintiff  to  Knights. 

On  the  following  Monday,  pursuant  to  the  above  arrangement,  the 
plaintiff  sent  to  Ipswich  200  sacks  (being  a  sufficient  number  to  contain 
the  whole  100  quarters  of  barley).  Some  of  these  sacks  were  marked 
in  the  plaintiff's  name;  and  they  were  all  duly  received  by  Knights: 
but  the  barley  was  not  delivered  or  forwarded  to  the  plaintiff.  On  16th 
September  the  plaintiff  wrote  to  Knights  for  a  sample  of  the  barley, 
which  was  accordingly  sent.  On  17th  September,  Knights  sent  one  of 
his  men  named  Abel  Smith,  to  fill  155  out  of  the  200  sacks  with  barley 
from  the  above-mentioned  heap  ;  and  accordingly  Smith  proceeded  to 
the  granary,  and,  with  the  assistance  of  other  persons,  filled  155  of  the 
sacks  with  bnrley  from  the  heap  (each  sack  containing  one  coomb,  or 
half  a  quarter).  After  the  sacks  had  been  filled,  there  was  left  in  the 
heap  some  seventy  or  eighty  quarters ;  so  that  the  quantity  put  into 
the  sacks  was  only  about  half  the  bulk.  By  the  further  direction  of 
Knights,  Smith  applied,  the  same  day,  at  the  railway  station  at  Ipswich, 
for  some  trucks,  to  convey  the  155  sacks  to  the  plaintiff  at  Witham,  but 
was  not  able  to  obtain  any.  On  the  following  Saturday  (20th),  the 
plaintiff  again  saw  Knights  at  rColchester  market,  and  complained  to 
him  of  the  non-delivery  of  the  barley.  He  said  he  was  sorry  that  he 
bad  not  sent  it;  but  that  he  had  been  very  busy  and  unable  to  get 
trucks,  and  that  it  should  be  sent  on  the  Monday  following  without  fail. 
On  the  following  Monday  morning  (22d),  Knights  gave  directions  to 
a  clerk  in  his  employ,  named  Mulley,  to  get  some  trucks,  and  have  the 
155  full  sacks,  which  were  then  standing  in  the  granary,  put  upon  them 
to  be  sent  to  the  plaintiff.  Mulley  accordingly  applied  for  the  trucks, 
but  without  success.  After  giving  these  directions.  Knights  himself 
went  up  to  London,  saw  the  plaintiff  in  Mark  Lane,  and  told  him  that 
the  barley  would  be  put  upon  the  rail  that  day. 

In  the  course  of  the  same  morning,  the  })laintiff  had  sent  to  Ipswich 
a  person  in  his  employ  named  Church,  to  demand  of  Knights  the  100 
quarters   of  barley.      Accordingly,  Church  called  at   Knights'  about 


J 


SECT,  v.]  ALDRIDGE   V.  JOHNSON.  861 

noon,  and  found  that  he  was  away  from  homo,  but  saw  Mullcy,  and 
demanded  tlie  barley  of  him.  Mulley  said  that  he  couhi  get  no  trucks 
to  put  it  upon,  and  that  Church  had  better  try  liimsclf  to  get  some' 
that,  if  lie  could  procure  any,  the  barley  should  be  put  upon  the  rail 
that  afternoon ;  but  that,  at  any  rate,  it  should  be  forwarded  the  first 
thing  the  next  morning.     After  this  Church  returned  to  Witliam. 

While  the  above  communication  was  passing  between  Mulley  and 
Church,  the  former  received  from  Kniglits  a  telegraphic  despatch  in  the 
followinf;  terms:  — 

If  you  have  not  put  oats  on  rail,  do  not,  nor  allow  more  barley  to  go  if  applied 
for.     Private. 

The  barley  mentioned  in  the  said  despatch  was  the  same  barley  in 
respect  to  which  Knights  had  given  Mulley  directions  in  the  morning; 
but  Mulley  did  not  mention  to  Church  the  contents  of  the  despatch,  nor 
the  fact  that  he  had  received  any  communication  from  Knights. 

The  barley  was  not  forwarded  to  the  i^laintifi'the  next  day,  but  re- 
mained in  the  sacks  till  the  following  Wednesday  ;  when  Abel  Smith, 
by  Knights's  directions,  turned  it  all  out  of  the  sacks  again  on  to  the 
I  heap  from  which  it  was  taken,  so  as  to  be  undistinguishable  from  the 
rest  of  the  heap. 

On  Thursday,  25th  September,  in  consequence  of  information  which 
the  plaintift'had  received,  he  Avent  himself  to  Ipswich,  and  saw  Knights 
at  his  own  house.  Pie  remonstrated  with  him  for  not  sendinsr  the 
barley ;  and  after  some  conversation.  Knights  stated  that  he  was  sorry 
to  say  he  was  in  trouble,  and  had  a  notice  of  bankruptcy  served  upon 
him.  On  29th  September,  Knights  filed  a  petition  for  arrangement  un- 
der the  211th  section  of  the  Bankrupt  Law  Consolidation  Act,  1849.^ 
And  at  the  first  sitting  which  Avas  held  in  the  matter  of  that  petition, 
on  the  4th  November  folloAving,  Knights  was  adjudicated  a  bankrupt; 
and  the  defendant  was  then  named  and  made  the  ofiicial  assignee  of  his 
estate  and  effects. 

On  18th  November  this  action  was  commenced,  the  plaintiflf  having 
previously  demanded  the  barley  of  the  defendant,  and  tendered  to  him 
the  diiFerence  between  the  price  of  the  barley  and  the  price  of  the 
bullocks. 

The  barley  remained  at  Knights'  granary  until  Christmas,  when  it 
was  removed. '^ 

Jiittleston,  for  the  plaintiff.  The  first  question  is  whether,  before  the 
bankruptcy,  the  property  in  the  barley  passed  to  the  plaintifi";  secondly, 
whether,  if  so,  there  was  a  conA'ersion  by  the  defendant.  There  is  no 
question  as  to  apparent  possession,  the  bankrupt  not  having  had  pos- 
session by  the  consent  of  the  plaintiff. 

As  to  the  first  question,  the  j)laintift'  contends  that  all  the  hundred 

1  Stat.  12  &  13  Vict.  c.  lOG. 

'^  The  statement  of  this  case  has  been  somewhat  abbreviated.  —  Ed. 


862  ALDRIDGE   V.    JOHNSON.  [CHAP.  II. 

quarters  passed.     The  principal  part  of  the  consideration,  the  bullocks, 
was  received  by  the  bankrupt :  and  barley  was  delivered  into  the  plain- 
tiff's sacks  in  pursuance  of  the  bargain.     It  is  true  that  all  the  barley 
was  not  so  delivered  :  but  what  was  delivered  was  taken  from  a  specific 
heap  ;  and  that  sufficiently  defined  the  identity.    [Crompton,  J.   Which 
hundred  quarters  was  the  plaintiff  to  have  ?]    Whatever  hundred  the 
bankrupt  might  put  into  the  plaintiff's  sacks.     [Crompton,  J.     That 
might  be  any  hundred.     Lord  Campbell,  C.  J.     Really  your  propo- 
sition as  to  the  whole  is  not  tenable.]     The  plaintiff  then  insists  only 
on  the  portion  put  into  the  155  sacks.     By  the  arrangement,  the  plain- 
tiff was  to  send  his  own  sacks  :  he  does  send  them  ;  and  the  bankrupt 
delivers  the  barley  into  them,  and  does  all  that  is  in  his  power  to  send 
them  off.     That  trucks  could  not  be  found  at  the  time  to  despatch  the 
sacks,  does  not  render  this  the  less  a  delivery.    [Lord  Campbell,  C.  J. 
Suppose  the  plaintiff  had  been  present,  and  had,  after  the  barley  was 
put  into  the  sacks,  sealed  up  the  sacks,  without  taking  them  away.] 
No  doubt  the  property  would  then  have  passed ;   and  what  actually 
took  place  was  quite  as  effectual.     [Lord  Campbell,  C,  J.     Certainly 
the  property  may  be  in  the  vendee,  though  it  is  in  the  manual  posses- 
sion of  the  vendor.]    That  is  so.    In  Rohde  v.  Thwaites  ^  a  vendor  sold 
twenty  hogsheads  of  sugar  out  of  a  larger  quantity ;  he  delivered  four 
and  filled  up  and  appropriated  other  sixteen,  desiring  the  vendee  to 
take  them  away ;  the  vendee  said  that  he  would  take  them  as  soon  as 
he  could  ;  and,  in  an  action  by  the  vendor  for  goods  bargained  and  sold, 
it  was  held  that  the  property  in  the  sixteen  passed,  though  they  were 
not  removed  from  the  premises  of  the  vendor.     [Erle,  J.     That  case 
would  be  exactly  in  point,  if  there  it  appeared  that  there  remained  a 
duty,  on  the  part  of  the  vendor,  to  forward.     Cromptojs",  J.     You  will 
say  that  the  sacks  were  in  the  bankrupt's  hands  in  order  that  he  might 
perform  a  certain  duty,  not  that  he  might  otherwise  meddle  with  them.] 
Yes.     [Lord  Campbell,  C,  J.     You  say  that  his  doing  more  was  a 
wrongful  conversion.]     It  was  so.     There  was  no  question  as  to  the 
bankrupt's  original  intention  to  appropriate ;  for  he  gave  orders  to  send 
the  sacks  away  by  the  railway.     It  is  immaterial  that  there  was  no 
tender  before  the  bankruptcy.     But  indeed  no  tender  was  necessary  at 
all :  there  was  no  lien.     Nor  did  the  bankrupt  or  defendant  profess  to 
hold  the  barley  on  the  ground  that  it  might  be  retained  till  the  money 
was  paid.     The  assignee  can  be  in  no  better  position  than  the  bank- 
rupt. 

Then  as  to  the  conversion.  [Crompton,  J.  When  you  demanded 
the  barley  of  the  assignee,  what  was  he  to  do?  How  could  he  separate 
your  barley  from  the  rest  ?  You  have  a  case  against  the  bankrupt ;  but 
how  could  the  assignee  deliver?]     The  bankrupt  could  not,  by  hav- 

1  6  B.  &  C,  388. 


1 


SECT,  v.]  ALDRIDGE   V.    JOHNSON.  863 

ing  mixed  up  the  plaintiff's  property  with  his  own,  gain  the  right  of 
retaining  it ;  nor  can  his  assignee  be  in  a  better  position.  [Crompton, 
J.  The  assignee  is  not  liable  for  the  tortious  act  of  the  bankrupt. 
Ekle,  J.  Where  a  party  mixes  up  another  man's  property  inseparably 
with  his  own,  the  consequence  is  that  he  loses  his  own.  Lord  Camp- 
bell, C.  J.  Yes,  unless  the  portion  mixed  up  be  quite  insignificant. 
Ekle,  J.  Then  if  the  plaintiff  was  entitled  to  take  the  whole  from  the 
bankrupt,  he  would  be  entitled  to  take  it  from  the  assignee.]  Those 
consequences  would  follow.  [Crompton,  J.  I  find  it  stated  that  the 
whole  was  removed ;  that  must  mean  a  removal  by  the  assignees.] 
That  is  enough  to  constitute  a  conversion. 

But,  further,  there  is  at  any  rate  no  defence  as  to  the  sacks.  [Cromp- 
ton, J.  Surely  that  point  is  disposed  of  by  my  brother  Coleridge's 
ordei".^]     Then  that  is  not  insisted  on. 

Prentice^  contra.  The  barley  placed  in  the  sacks  was  taken  from  the 
bulk,  of  which  an  unascertained  hundred  quarters  had  been  sold :  the 
particular  portion  placed  in  the  sacks  was  not  sold.  [Crompton,  J. 
The  property  would  not  pass  if  any  thing  remained  to  be  done  by  the 
vendor.]  In  order  that  the  separation  of  the  particular  quantity  may 
effect  a  transfer  of  the  property  there  must  be  an  assent  by  the  vendee; 
the  reason  of  which  is,  that  the  vendee  is  entitled  to  see  that  the  por 
tion  separated  corresponds  with  the  bulk.  [Erle,  J.  If  the  portion 
is  separated  in  conformity  with  the  contract,  surely  the  property  in 
that  passes.]  The  vendor  might  have  substituted  another  portion  be- 
fore the  sacks  arrived  at  the  railway :  till  then  the  property  did  not 
pass,  by  the  agreement.  In  Blackburn's  treatise  on  the  Effect  of  the 
Contract  of  Sale,  p.  1*26,  the  law  is  thus  stated :  "  The  specific  goods 
miist  be  agreed  upon ;  that  is,  both  parties  must  be  pledged,  the  one  to 
give  and  the  other  to  accept  those  specific  goods."  Here,  though  the 
vendee  did  assent  to  the  goods  being  placed  in  his  sacks,  the  property 
did  not  pass  till  he  had  inspected  the  barley.  Holroyd,  J.,  in  Rohde 
V.  Thwaites,^  makes  not  only  the  selection  by  the  vendor  essential,  but 
also  the  "  adoption  of  that  act "  by  the  vendee.  Suppose  the  goods 
had  been  burnt.  [Erle,  J.  That  was  the  test  in  my  mind :  I  think 
the  plaintiff  would  have  had  to  bear  the  loss,  according  to  the  prin- 
ciples laid  down  in  Rugg  y.  Minett.*]  In  p.  128  of  Mr.  Blackburn's 
treatise,  the  final  a])propriation  which  transfers  the  property  is  stated 
to  take  place  when  the  party  who  is  to  do  the  first  act  makes  the  elec- 
tion ;  the  property  being  made  certain  by  such  election ;  for  which  Sir 
Rowland  Hey  ward's  case*  is  cited.  Here  the  act  to  be  done  was  de- 
spatching the  barley.  [Erle,  J.  Mr.  Blackburn  has  expressed  himself 
with  perfect  accuracy.  He  says:  "Where,  from  the  terms  of  an  exec- 
utory agreement  to  sell  unspecified  goods,  the  vendor  is  to  despatch  the 

1  It  has  not  been  deemed  necessary  to  give  the  facts  as  to  this  order.  —  Ed. 

2  6  B.  &  C.  393.  3  11  East,  210.  *  2  Rep.  35  a. 


864  ALDRIDGE    V.    JOHNSON.  [CHAP.  II, 

goods,  or  to  do  any  thing  to  them  that  cannot  be  done  till  the  goods 
are  appropriated,  he  has  the  right  to  choose  what  the  goods  shall  be  j 
and  the  property  is  transferred  the  moment  the  despatch  or  other  act 
has  commenced,  for  then  an  appropriation  is  made  finally  and  con- 
clusively, by  the  authority  conferred  in  the  agreement."]  In  the  case 
of  goods  sent  by  a  carrier,  the  delivery  to  the  carrier  is  the  transfer. 
The  necessity  of  commencing  the  act  agreed  upon,  in  order  to  fix  the 
appropriation,  appears  by  the  two  cases  cited  by  Mr.  Blackburn,  Fra- 
gano  v.  Long  ^  and  Atkinson  v.  Bell.^  Here  the  act  agreed  upon  was 
the  sending :  nothing  short  of  that  fixed  the  property.  Wallace  v. 
Breeds  ^  illustrates  this.  Further,  the  contract  was  indivisible :  putting 
a  portion  into  the  sack  could  not  transfer  the  goods  sold.  [Lord  Camp- 
bell, C.  J.  Do  you  say  none  passed  ?]  Yes :  the  plaintift'  might  have 
refused  to  receive  a  part.  [Crompton,  J.  Is  there  not  evidence  that 
the  plaintiff"  assented  to  the  appropriation  ?  Did  he  not  know  of  it  ?  Lord 
Campbell,  C.  J.  May  there  not  be  an  anticipative  assent,  "  I  will  take 
to  what  you  put  into  the  sacks  "  ?] 

Then,  next,  there  was  no  conversion  by  the  assignee.  If  there  was 
any  conversion,  it  was  completed  by  the  bankrupt :  after  that,  his  as- 
signee could  not  convert.  [Lord  Campbell,  C.  J.  That  is  not  so.  If 
a  man  takes  my  horse,  he  converts  it :  if  he  hands  it  over  to  another, 
who  refuses  to  give  it  up  to  me  on  demand,  that  other  converts  also. 
If  the  bankrupt  had  divested  the  property  from  the  plaintiff",  it  would  be 
otherwise  :  but  he  has  only  done  a  wrongful  act.  Here  the  assignee 
denies  the  plaintiff''s  claim  to  any  part ;  and  he  is  right  in  claiming  all, 
if  the  former  part  of  your  argument  be  correct.]  No  distinct  act  of  con- 
version by  the  assignee  is  shown. 

Bittleston.,  in  rej^ly,  was  stopped  by  the  court. 

Lord  Campbell,  C.  J.  In  cases  of  this  sort  there  often  is  great  doubt 
and  great  difficulty  ;  but  the  present  case  seems  to  me  on  both  points 
free  fi-om  all  doubt  and  difficulty.  I  think  that  no  portion  of  what  re- 
mained in  bulk  ever  vested  in  the  plaintiff".  We  cannot  tell  what  part 
of  that  is  to  vest.  No  rule  of  the  law  of  vendor  and  purcha.ser  is  raqjg 
clear  than  this :  that,  until  the  appropriation  and  separation  of  a  partic- 
ular quantity,  oi'  signification  of  assent  to  the  particular  quantity,  the 
property  is  not  transferred.  Therefore,  except  as  to  what  was  put  into 
the  155  sacks,  there  must  be  jiidgment  for  the  defendant.  It  is  equally 
clear  that,  as  to  what  was  put  into  those  sacks,  there  must  be  judgment 
for  the  plaintiff".  Looking  to  all  that  was  done,  when  the  bankrupt  put 
the  barley  into  the  sacks,  eo  instanti  the  property  in  each  sackful  vested 
in  the  plaintiff".  I  consider  that  here  was  a  priori  an  assent  by  the 
plaintifiT,  He  had  inspected  and  approved  of  the  barley  in  bulk.  He 
sent  his  sacks  to  be  filled  out  of  that  bulk.     There  can  be  no  doubt  of 

1  4  B.  &  C.  219.  2  8  B.  &  C.  277.  13  East,  522. 


SECT,  v.]  ALDRIDGE    V.    JOHNSON.  865 

his  assent  to  the  appropriation  of  such  bulk  as  should  have  been  put 
into  the  sacks.  There  was  also  evidence  of  his  subsequent  a])propria- 
tion  by  his  order  that  it  should  be  sent  on.  There  remained  nothing  to 
be  done  by  the  vendor,  who  had  appropriated  a  part  by  the  direction 
of  the  vendee.  It  is  the  same  as  if  boxes  had  been  filled  and  sent  on 
by  the  bankrupt,  in  which  case  it  cannot  be  disputed  that  the  property 
would  pass ;  and  it  can  make  no  difference  that  the  plaintitF  ordered  the 
sacks  to  be  forwarded  by  the  vendor.  As  to  the  question  of  conversion, 
the  property  being  in  the  plaintiff,  he  has  done  nothing  to  divest  him- 
self of  it.  It  is  not  like  the  case  of  confusion  of  goods,  where  the  owner 
of  such  articles  as  oil  or  wine  mixes  them  with  similar  articles  belonor- 
ing  to  another.  That  is  a  wrongful  act  by  the  owner,  for  which  he  is 
punished  by  losing  his  property.  Here  the  plaintiff  has  done  nothing 
wrong.  It  was  wrong  of  the  bankrupt  to  mix  what  had  been  put  into 
the  sacks  with  the  rest  of  the  barley ;  but  no  wrong  has  been  done  by  the 
plaintiff.  That  being  so,  the  plaintiff's  property  comes  into  tlie  hands 
of  the  defendant  as  the  bankrupt's  assignee.  If  the  defendant  had  a 
lien,  he  does  not  detain  the  barley  on  that  ground.  He  denies  the 
plaintiff's  property  altogether,  and  cannot  therefore  claim  a  lien.  He 
claims  all  the  barley,  and  claims  all  of  it  as  being  the  property  of  the 
bankrupt.     He  therefore  has  converted  the  plaintiff's  property. 

Coleridge,  J.  I  am  of  the  same  opinion.  I  think  the  property  in 
that  poi'tion  which  was  put  into  the  plaintiff's  sacks  passed  to  the  plain- 
tiff. That  portion  was  subtracted  by  the  vendor  from  the  bulk,  in  part 
performance  of  the  contract;  and  there  is  abundant  evidence  of  appro- 
priation, as  far  as  the  bankrupt  could  appropriate.  There  is  also 
abundant  evidence  of  assent  by  the  plaintiff.  He  had  before  assented 
to  the  quality  of  the  bulk  ;  and,  after  the  portion  was  put  into  the  sacks, 
he  desired  that  they  should  be  sent  to  him.  There  is  thus  evidence  of 
the  completion  of  the  act  of  appropriation.  Atkinson  v.  Bell  ^  is  a  very 
different  case.  There  the  goods  were  in  the  coui'se  of  being  made ; 
and  many  alterations  had  taken  place;  and  the  purchaser  had  never 
done  any  act  by  which  he  adopted  the  jiarticular  thing  made.  Here  is 
a  complete  appropriation.  As  to  the  conversion,  notliing  that  either 
the  bankrupt  or  the  assignee  could  do  without  the  plaintiff's  consent 
could  divest  the  plaintiff's  property ;  and  the  removal  is  abundant 
proof  of  the  conversion. 

Ekle,  J.  I  also  am  clearly  of  opinion  that  the  property  in  what  was 
put  into  the  sacks  passed  to  the  plaintiff.  It  is  clear  that,  where  there 
is  an  agreement  for  the  sale  and  purchase  of  a  particular  chattel,  the 
chattel  passes  at  once.  If  the  thing  sold  is  not  ascertained,  and  some- 
thing is  to  be  done  before  it  is  ascertained,  it  does  not  pass  till  it  is 
ascertained.    Sometimes  the  right  of  ascertainment  rests  with  the  ven- 

CD 

dee,  sometimes  solely  with  the  vendor.    Here  it  is  vested  in  the  vendor 
only,  the  bankrupt.    When  he  had  done  the  outward  act  which  showed 

I  8  B.  &  C.  277. 


866  ALDRIDGE   V.   JOHNSON.  [CHAP.  II. 

which  part  was  to  be  the  vendee's  property,  his  election  was  made  and 
the  pi-operty  passed.  That  might  be  shown  by  sending  the  goods  by 
the  railway ;  and  in  such  case  the  property  would  not  pass  till  the 
goods  were  despatched.  But  it  might  also  be  shown  by  other  acts. 
Here  was  an  ascertained  bulk,  of  which  the  plaintiff  agreed  to  buy 
about  half.  It  was  left  to  the  bankrupt  to  decide  what  portion  should 
be  delivered  under  that  contract.  As  soon  as  he  does  that,  his  election 
has  been  indicated ;  the  decisive  act  was  putting  the  portion  into  the 
sacks.  If  it  were  necessary  to  rest  the  decision  on  the  assent  of  the 
vendee  in  addition  to  this,  I  am  of  opinion  that  there  is  abundant 
evidence  of  such  assent ;  for  the  vendee  demanded,  over  and  over  again, 
the  portion  which  had  been  put  into  the  sacks.  I  think  Mr.  Blackburn 
has  expressed  the  law  with  great  clearness  and  accuracy.  He  first  takes 
the  case  where  one  party  appropriates  and  the  other  assents,  and  then 
the  case  where,  by  virtue  of  the  original  agreement,  the  authority  to 
appropriate  is  in  one  party  only.  As  to  the  question  of  conversion, 
I  am  of  opinion,  on  the  grounds  which  have  already  been  stated,  that 
the  assignee  has  converted  the  plaintiff's  property. 

Crompton,  J.  As  to  the  first  point,  respecting  the  part  not  put  into 
the  sacks,  I  never  felt  any  doubt.  As  to  the  second  point,  I  do  not  feel 
so  clear  as  the  other  members  of  the  court,  though  I  do  not  say  that  I 
disagree  with  them.  It  is  suggested  that  the  plaintiff  said  to  the  bank- 
rupt, in  effect,  I  will  buy  wliat  you  will  put  into  the  sacks.  After  that 
was  done,  I  much  doubt  whether  the  bankrupt  could  meddle  with  the 
sacks  and  turn  out  what  had  been  put  in.  It  may  be  that  the  bargain 
was  as  my  lord  and  my  brother  Erie  put  it,  that  the  plaintiff  would 
take  what  the  vendor  should  put  in.  On  that  view,  when  the  barley 
was  put  into  the  sacks  it  was  just  as  if  it  had  been  sent  by  a  carrier. 
Also  I  agree  that,  if  the  plaintiff  sent  for  the  barley  after  it  was  in  the 
sacks,  that  would  be  an  assent  to  the  appropriation.  But  I  doubt 
whether,  as  the  case  is  stated,  it  is  quite  clear  that  the  plaintiff  knew 
that  the  barley  had  been  put  into  the  sacks:  if  he  did,  there  was  clear 
evidence  of  assent.  Then  it  is  argued,  on  behalf  of  the  defendant,  that 
the  contract  was  entire,  and  that  either  all  or  none  of  the  barley  must 
pass.  I  do  not  agree  to  that.  There  was  an  apj^ropriation  of  so  much ; 
and  so  much  passed.  As  to  the  conversion,  the  law  is,  beyond  ques- 
tion, as  my  lord  puts  it ;  a  prior  conversion  does  not  prevent  a  subse- 
quent conversion.  The  true  owner  may  waive  the  first  conversion. 
It  is  difticult  to  say  what  the  assignee  was  to  do.  But  I  think  that, 
if  he  removes  all,  it  is  a  conversion  of  the  part  which  belongs  to  the 
plaintiff:  if  he  sells  all,  an  action  for  money  had  and  i«eceived  may  be 
brought  in  respect  of  that  part.  I  think  therefore  that,  as  he  has 
removed  all,  he  has  been  guilty  of  a  conversion. 

Judgment  for  plaintiff  as  to  the  part  put  into  the  sacks:  as  to 
the  residue^  judgment  for  defendant. 


SECT,  v.]  LANGTON    V,    HIGGINS.  867 

ELIZABETH   LANGTON  y.   HIGGINS 
In  the  Exchequer,  May  5,  1859. 

[Reported  in  '4  Hurlstone  ^'  Norman,  402.] 

The  first  count  of  the  declaration  was  in  detiniie  for  cases  and 
bottles  of  oil  of  jDeppermint.  The  second  count  was  in  trover  for  the 
same  goods. 

Pleas.  —  First:  not  guilty.  Secondly:  that  the  goods  were  not, 
nor  were  any  or  either  of  them,  the  plaintiff's,  as  alleged. 

At  the  trial  before  Martin,  B.,  at  the  London  sittings  after  last 
Hilary  term,  the  following  facts  appeared  :  The  plaintiff  was  a  Avhole-. 
sale  druggist  in  London,  and  the  defendant  Avas  a  wholesale  druggist 
at  Liverpool.  For  many  years  past  the  plaintiff  had  been  in  the  habit 
of  contracting  with  one  Carter,  a  fanner  at  Leverington  in  Cambridge-  | 
shire,  for  the  purchase  of  all  the  oil  of  2)e]ipcrmint  to  be  distilled  from  ^ 
the  crop  of  peppermint  which  might  be  groAvn  on  his  farm  in  that 
year.  The  contracts  were  made  in  the  early  part  of  the  year,  and 
Carter  obtained  from  the  plaintiff  advances  in  respect  of  them.  On 
the  27th  January,  1858,  the  plaintiff  and  Carter  entered  into  the  fol- 
lowing agreement :  — 

London,  Jan.  27,  1858. 

The  undersigned,  Frederick  Carter  of  Leverington,  agrees  to  sell  to  Messrs. 
William  Langtoii  &  Co.,  of  London,  the  whole  of  his  crop  of  oil  of  peppermint 
grown  in  the  year  1858,  at  the  rate  of  21s.  per  lb. 

But  should  the  said  crop  amount  to  250  bottles  of  oil,  he  agrees  to  deduct  Qd.  per 
lb.  from  the  said  21s.  and  above  that  quantity  Is.  per  lb.,  provided  the  Messrs. 
L.mgton  find  the  said  21s.  per  lb.  is  more  than  they  can  reasonably  afford. 

This  agi'eement  is  made  upon  the  condition  that  Messrs.  Langton  &  Co.  ad- 
vance the  said  Frederick  Carter  £1000  on  account  of  the  above-named  crop,  and 
pay  the  amount  due  at  the  time  of  delivery  by  two,  four,  and  six  months'  bills. 

Fred.  Carter. 

Previously  to  this  agreement  advances  had  been  made  by  the  plain- 
tiff to  Carter,  to  the  extent  of  £310,  and  on  the  day  the  agreement 
was  signed  Carter  gave  to  the  plaintiff  a  bill  of  sale  of  his  live  and 
dead  stock,  crop  of  oil  of  pe23])enuint,  crops  of  corn,  furniture,  &c.,  as  a 
security  for  the  £310,  and  further  advances  to  the  extent  of  £1000. 
It  was  usual  for  the  plaintiff  to  send  to  Carter  bottles  to  be  filled  with 
the  oil  of  peppermint,  and,  in  September,  Carter  ajijilied  for  the  bottles 
and  some  gut-skin  to  cover  them.  The  ])laintiff  accordingly  sent  him 
two  gross  of  bottles  Avith  gut-skin.  On  the  8th  of  October,  Carter 
wrote  to  the  plaintiff,  "  We  shall  lose  no  time  in  getting  the  oil  off." 
It  was  the  business  of  Mrs.  Carter  to  put  the  oil  of  peppermint  in  the 


868  LANGTON    V.    HIGGTNS.  [CHAP.  II. 

bottles,  which,  as  on  previous  occasions,  she  did  in  the  following  man- 
ner :  She  first  weighed  the  empty  bottles  and  then  filled  them  with  the 
oil.  She  then  weighed  them  again,  having  previously  marked  the  tare 
and  weight  of  each  bottle  on  a  piece  of  paper  pasted  on  it.  She  then 
marked  the  gross  weight  of  the  oil  and  the  bottle,  and  added  them 
together  on  the  same  paper.  She  then  subtracted  the  tare  and  placed 
the  net  weight  and  the  number  of  the  bottle  upon  the  paper  and  laid 
the  bottle  aside.  After  the  bottles  were  filled,  by  Carter's  direction, 
she  made  out  invoices  and  address  cards,  which  she  placed  in  Carter's 
desk.  She  Avas  engaged  in  these  operations  about  nine  days,  and 
finished  on  the  29th  of  September.  On  all  previous  occasions,  the 
bottles,  Avhen  filled,  were  placed  in  cases  and  delivered  to  a  carrier  to 
take  to  the  railway  station,  to  be  forwarded  to  the  plaintifi"  in  London. 
Carter  left  his  home  on  the  15th  of  October,  and  has  not  since  been 
heard  of  The  defendant  purchased  of  Carter  fifteen  cases  of  the  oil 
of  peppermint,  nine  of  which  were  delivered  to  him  at  Liverpool  on 
the  16th  of  September,  and  the  others  on  the  23d. 

It  was  submitted  on  behalf  of  the  defendant  that  under  these  cir- 
cumstances the  property  in  the  oil  of  pej^permint  did  not  vest  in  the 
plaintiff.  The  learned  judge  directed  a  verdict  for  the  plaintiff  for 
£626  15s.,  reserving  leave  to  the  defendant  to  move  to  enter  a  nonsuit, 
or  to  reduce  the  amount  to  the  value  of  the  bottles. 

Edward  Jcones,  in  the  present  term,  obtained  a  rule  nisi  accord- 
ingly ;  against  which 

Atherton  and  Quain  showed  cause.  The  property  in  the  oil  of  pep- 
permint vested  in  the  plaintiff  by  the  agreement  of  the  27th  January, 
1858.  That  is  an  absolute  sale  to  him  of  all  the  oil  of  pepj^ermint 
grown  on  the  vendor's  farm  in  that  year.  It  will  perhaps  be  argued 
that,  as  the  agreement  was  made  in  January,  and  according  to  the 
ordinary  course  of  events  the  oil  of  peppermint  would  not  be  in  exist- 
ence until  the  September  following,  no  property  in  the  particular 
commodity  passed  by  that  contract.  But  at  all  events,  what  was  done 
in  September,  coupled  with  the  agreement,  was  sufiicient  to  pass  the 
property.  At  the  vendor's  request  the  plaintiff  sent  his  bottles  which 
were  filled  with  the  oil  of  peppemiint,  and  invoices  were  made  out  to 
him.  That  is  a  sufiicient  appropriation.  In  Aldridge  v.  Johnson,^  the 
plaintiff  agreed  with  K,  to  purchase  of  him  100  out  of  200  quarters  of 
barley,  which  the  plaintiff  had  seen  in  bulk  and  approved  of,  and  he 
paid  i^art  of  the  price.  It  was  agreed  that  the  plaintiff  should  send 
sacks  for  the  barley,  and  that  K.  should  fill  the  sacks  with  the  barley, 
take  them  to  a  railway,  place  them  upon  trucks  there  free  of  charge, 
and  send  them  to  the  plaintiff.  The  plaintiff  sent  sacks  enough  for  a 
part  only  of  the  one  hundred  quarters;  those  K.  filled,  and  he  also 

1  7  E.  &  B.  885. 


I 


SECT,  v.]  LANGTON    V.    HIGGINS.  869 

endeavored  to  find  trucks  for  them,  but  was  unable  to  do  so.  The 
plaintiff  repeatedly  sent  to  K.  demanding  the  barley.  K.  finally  de- 
tained it,  and  emptied  the  barley  from  the  sacks  into  the  bulk.  It  was 
held  by  Lord  Campbell,  C.  J.,  Coleridge,  J.,  and  Erie,  J.,  that  the  por- 
tion of  the  barley  piit  into  the  sacks  passed  to  the  plaintiff".  So  here 
the  property  passed  when  the  oil  of  peppermint  was  put  into  the  plain- 
tiflf's  bottles.  If  the  assent  of  the  plaintiff  was  necessary,  there  is 
sufficient  evidence  of  it.  This  is  not  like  the  case  of  a  purchase  of 
something  not  then  in  esse,  and  which  must  conform  to  a  certain  de- 
scrii)tion.  In  such  case  there  is  reason  for  requiring  the  approval  of  the 
purchaser  in  order  to  vest  the  pi-operty  in  him,  for  otherwise  he  might 
be  bound  to  pay  for  an  article  Avhich  did  not  correspond  with  his  order. 
Here  there  was  a  sale  to  the  plaintiff  of  the  whole  crop  of  oil  of  pepper- 
mint grown  on  the  particular  farm,  and  the  moment  it  was  obtained 
he  was  bound  to  accept  it,  Avhatever  might  be  its  quality.  The  result 
of  the  authorities  is  that,  in  the  case  of  a  sale  of  unascertained  goods, 
the  property  passes  immediately  they  are  ascertained  and  appropri- 
ated. Chitty  on  Contracts,  p.  342,  6th  ed.  They  also  argued  that 
the  property  passed  by  the  bill  of  sale,  citing  Fetch  v.  Tutin.^ 

Edward  James  and  Leofric  Temple,  in  support  of  the  rule.  In 
order  to  pass  the  property,  there  must  have  been  an  appropriation  by 
the  vendor,  with  the  assent  of  the  vendee.  Again,  if  any  act  remained 
to  be  done  on  the  part  of  the  vendor  the  property  would  not  pass. 
Smith's  Mercantile  Law,  p.  465,  5th  ed.  There  was  no  appropriation. 
It  is  true  that  the  oil  of  peppermint  was  put  into  bottles  belonging  to 
the  plaintiff,  but  the  invoices  were  not  made  out  until  all  the  bottles 
were  filled,  which  was  on  the  29th  September,  and  on  the  23d  Sep- 
tember nine  cases  of  the  oil  of  peppermint  had  been  sent  to  the  de- 
fendant. The„]bottles  were  not  filled  with  the  intention  of  sending 
them  to  the  plaintiff,  and  until  they  were  packed  and  delivered  to  the 
c.ai-rier  the  property  would  not  pass.  Turner  u.  The  Trustees  of  the 
Liverpool  Docks  shows  that  notwithstanding  a  delivery  to  a  carrier, 
the  vendor  may  reserve  to  himself  a  jus  disponendi  of  the  goods. 
[Martin,  B.  Under  this  contract  all  that  the  vendor  was  bound  to 
do  was  to  put  the  oilof  peppermint  in  the  bottles,  and  upon  that  being 
done  the  property  in  it  vested  in  the  plaintiff'.]  The  course  of  dealing 
between  the  parties  had  been  for  the  vendor  to  deliver  the  oil  of  pep- 
permint to  a  carrier  to  take  to  tlie  railway  station  ;  and  if  this  had 
been  a  question  between  the  vendor  and  v^endee,  the  contract  being 
silent  upon  the  subject,  it  is  clear  that  the  usage  would  prevail.  Al- 
dridge  y.  Johnson*^  differs  materially  from  the  present  case.  There 
the  vendee  ascertained  that  a  portion  of  the  barley  had  been  put  into 
the  sacks,  and  required  that  they  should  be  sent  to  him ;  the  vendor 

1  15  M.  &  W.  110.  ME.  &B.  885. 

VOL.  I,  66 


870  LANGTON   V.    HIGGINS.  [CHAP.  II. 

applied  at  the  railway  station  for  trucks  to  convey  them  to  the  plain- 
tiff, but  was  unable  to  get  any.  According  to  the  report  of  that  case 
in  the  Law  Journal/  Erie,  J.,  said :  "  As  soon  as  the  vendor  had  done 
an  outward  act  indicating  his  election,  viz.,  by  filling  the  sacks  and 
directing  them  to  be  sent  to  the  railway,  the  property  passed."  So  in 
this  case  there  was  a  further  act  to  be  done  after  the  bottles  were 
filled,  viz.,  the  delivery  of  them  to  a  carrier  to  take  to  the  railway 
station.  [Pollock,  C.  B.  In  the  acknowledged  and  sanctioned  reports 
of  Ellis  and  Blackburn,  Erie,  J.,  is  stated  to  have  said :  "  Here  was  an 
ascertained  bulk  of  which  the  plaintiff  agreed  to  buy  about  half.  It 
was  left  to  the  bankrupt  (the  vendor)  to  decide  what  portion  should 
be  delivered  under  that  contract.  As  soon  as  he  does  that,  his  election 
has  been  indicated ;  the  decisive  act  was  putting  the  portion  into  the 
sacks."]  The  question  in  these  cases  is,  What  is  the  intention  of  the 
parties  to  be  collected  from  the  contract  and  their  course  of  dealing  ? 
If  there  is  no  intention  of  passing  the  property  until  something  is  done 
by  the  vendor  before  delivery  of  possession,  the  property  does  not  pass 
until  that  act  is  done.     Logan  v.  Le  Mesurier,'^  Acraman  v.  Morrice.^ 

Pollock,  C.  B.  The  rule  must  be  discharged.  My  judgment  is 
founded  upon  the  decision  in  Aldridge  v.  Johnson,*  viz.,  that  the 
putting  the  barley  into  the  sacks  was  an  appropriation  which  passed 
the  property.  I  doubt  whether  it  was  necessary  to  tie  up  the  sacks, 
or  do  any  thing  more  than  put  the  barley  in  them ;  as  when  goods  are 
put  on  board  a  ship  it  is  not  necessary  to  stow  down  the  hatchway ; 
the  filling  the  sacks  with  the  barley  was  a  decisive  act  of  appropriation 
and  delivery.  Here  it  must  be  taken  that  what  Mrs.  Carter  did  was 
the  act  of  Carter,  and  I  am  of  opinion  that  the  putting  the  oil  of  pep- 
permint into  the  bottles  was  the  same  thing  as  delivering  it  to  the 
plaintiff. 

Martin,  B.  I  am  of  the  same  opinion.  Taking  the  language  of  the 
judgment  in  Aldridge  v.  Johnson  to  have  been  as  reported  in  Ellis 
and  Blackburn,  viz.,  that  the  contract  was  complete,  so  as  to  vest  the 
property  in  the  plaintiff,  as  soon  as  the  barley  was  put  into  the  sacks, 
I  think  that  case  was  rightly  decided.  It  seems  to  me  that  the  law  on 
this  subject  is  correctly  laid  down  in  the  case  of  Logan  v.  Le  Mesu- 
rier.  The  defendant's  counsel  chiefly  founded  their  argument  upon 
the  obhgation  of  the  vendor  to  deliver  the  goods  to  the  .  carrier 
to  convey  them  to  the  railway  station.  If  they  had  estabhshed  that, 
it  might  have  altered  the  case,  but  they  have  failed  to  do  so.  In  my 
opinion,  when  two  parties  enter  into  a  contract  and  put  it  into  writing, 
that  writing  determines  the  terms  of  their  bargain  ;  and  they  cannot 
add  to  it  by  showing  that  at  the  time  the  contract  was  made,  they  had 

1  26  L.  J.,  Q.  B.  296.  2  6  Moore,  P.  C.  116. 

3  8  C.  B.  449.  <  7  E.  &  B.  885. 


SECT,   v.]  LANGTON    V.    HIGGINS.  871 

been  nccustomerl  to  do  something  further,  still  less  by  showing  that 
something  further  was  usually  clone  by  the  vendor.  However,  I  found 
my  judgment  on  one  of  the  most  useful  rules  in  the  law,  viz.,  that 
when  parties  have  put  their  contract  into  writing,  that  writing  deter- 
mines what  the  bargain  is.  Here  there  is  a  contract,  by  wliich  the 
party  signing  it  agrees  to  sell  to  the  plaintiff  the  whole  of  his  crop  oi 
oil  of  peppermint  grown  in  the  year  1858,  at  the  rate  of  21s.  perj^oimd- 
In  my  judgment,  when  that  crop  was  weighed  and  placed  in  the  bottles 
of  the  plaintiff,  the  property  vested  in  her.  The  rule  of  law  is,  that 
where  the  article  corresponds  with  that  agreed  to  be  sold,  and  every 
thing  Avhich  is  to  be  done  by  the  vendor  is  done  by  him,  the  property 
passes  to  the  vendee,  and  he  is  liable  for  the  price.  That  will  be  found 
in  Shep.  Touch.,  p.  224,  225. 

Bramwelt,,  B.  I  am  also  of  opinion  that  the  rule  ought  to  be  dis- 
charged. The  contract  is  to  sell  the  whole  of  the  vendor's  crop  of  oil 
of  peppermint  grown  in  a  certain  year.  I  do  not  think  that  when  the 
oil  was  made  the  property  passed,  —  possibly  there  may  have  been  an 
ohligatio  certi  corjporis  ;  but  it  appears  to  me  that  when  the  oil  was  put 
into  the  plaintiff's  bottles  the  property  in  it  vested  in  her.  I  do  not 
dissenTlToni  what  was  said  by  my  brother  Mailin  with  respect  to  the 
delivery  to  a  carrier.  It  may  be  that  the  vendor  would  be  bound  to 
show  some  act  of  delivery  before  he  could  sue  for  the  price ;  but,  how- 
ever that  may  be,  I  am  of  opinion  that  the  property  vested  in  the 
plaintiff  when  the  oil  was  put  into  her  bottles.  Looking  at  the  princi- 
ple, there  ought  to  be  no  doubt.  A  person  agrees  to  buy  a  certain 
article,  and  sends  his  bottles  to  the  seller  to  put  the  article  into.  The 
seller  puts  the  article  into  the  buyer's  bottles ;  then  is  there  any  rule  to 
say  that  the  property  does  not  pass?  The  buyer  in  effect  says,  "I 
will  trust  you  to  deliver  into  my  bottles,  and  by  that  means  to  aj^pro- 
priate  to  me,  the  article  which  I  have  bought  of  you."  On  the  other 
hand  the  seller  must  be  taken  to  say,  "  You  have  sent  your  bottles,  and 
I  will  put  the  article  in  them  for  you."  In  all  reason,  when  a  vendee 
sends  his  shij),  or  cart,  or  cask,  or  bottle  to  the  vendor,  and  he  puts  the 
article  sold  into  it,  that  is  a  delivery  to  the  vendee.  If  we  could  sup- 
pose the  case  of  a  metal  vessel  filled  with  a  commodity  which  rendered 
the  vessel  useless  for  subsequent  purposes,  it  would  be  monstrous  if  the 
vendor  could  say,  "  I  have  destroyed  your  vessel  by  putting  into  it  the 
article  you  purchased,  but  still  the  property  in  the  article  never  passed 
to  you."  Or  suppose  a  vendor  was  to  deliver  a  ton  of  coals  into  the 
vendee's  cellar,  could  he  say,  "  I  have  put  the  coals  in  your  cellar,  but 
I  have  a  right  to  take  them  away  again  "  ?  But  independently  of 
reason,  there,  is  an  authority  on  the  subject.  In  Blackburn  on  Con- 
tracts, it  is  said  that  the  projjcrty  does  not  pass  unless  there,  is  an 
intention  to  pass  it,  and  various  cases  are  cited  in  support  of  that  posi- 
tion.    It  is  then  said,  p.  151,  that  two  rules  have  been  laid  down  on  the 


872  LANGTON    V.    BIGGINS.  [CHAP.  II. 

subject.  The  first  is,  "  that  where  by  the  agreement  the  vendor  is  to  do 
any  thing  to  the  goods,  for  the  purpose  of  putting  them  into  that  state 
in  which  the  purchaser  is  to  be  bound  to  acce2:»t  tliem,  or,  as  it  is  some- 
times Avorded,  into  a  deliverable  state,  the  performance  of  those  things 
shall  (in  the  absence  of  circumstances  indicating  a  contrary  intention) 
be  taken  to  be  a  condition  precedent  to  the  vesting  of  the  property." 
The  second  rule  is,  "  that  where  any  thing  remains  to  be  done  to  the 
goods  for  the  purpose  of  ascertaining  the  price,  as  by  weighing,  measur- 
ing, or  testing  th^  goods,  where  the  price  is  to  depend  on  the  quantity 
or  quality  of  the  goods,  the  performance  of  those  tilings  also  shall  be  a 
condition  precedent  to  the  transfer  of  the  property,  although  the  indi- 
vidual goods  be  ascertained,  and  they  are  in  the  state  in  which 
they  ought  to  be  accepted."  That  is  not  only  good  law,  but  good 
sense.  Then  can  there  be  more  complete  evidence  of  intention  to 
pass  the  property  than  when  the  vendee  sends  her  bottles  to  be  filled 
with  the  article  purchased,  and  the  vendor  puts  it  into  the  bottles? 
Therefore,  both  upon  principle  and  authority,  I  think  that  the  property 
in  the  oil  passed  to  the  plaintiff  when  it  was  put  into  the  bottles.  The 
case  of  Aldridge  v.  Johnson  ^  is  jirecisely  in  point.  Lord  Campbell, 
C.  J.,  there  said :  "  Looking  to  all  that  was  done  when  the  bankrupt 
(the  vendor)  put  the  barley  in  the  sacks,  eo  instanti  the  projjerty  in 
each  sackful  passed  to  the  plaintiff."  It  is  true  that  in  the  Law 
Journal,  Erie,  J.,  is  reported  to  have  said  that  the  outward  act  indicat- 
ing the  vendor's  intention  was  by  filling  the  sacks  "and  directing 
them  to  be  sent  to  the  railway."  But  Crompton,  J.,  who  doubted  upon 
another  point,  said  that  "  when  the  barley  was  put  into  the  sacks,  it 
was  just  as  if  it  had  been  sent  by  a  carrier."  Therefore  there  is  not 
only  reason  and  general  authority,  but  also  the  case  of  Aldridge  v. 
Johnson,  to  warrant  our  judgment.  The  only  difficulty  I  had  was  this : 
Suppose  the  oil  of  peppermint  had  been  badly  manufactured,  I  am 
not  prepared  to  assent  to  the  argument  that  the  plaintiff  would  not 
have  had  a  power  of  rejection.  Again,  suj^pose  only  a  portion  of  the 
oil  had  been  put  into  the  bottles,  inasmuch  as  the  plaintiff  was  not 
bound  to  take  a  part  only,  would  the  property  vest?  Aldridge  v. 
Johnson  is  an  authoiity  on  that  point.  It  may  be  that  the  plaintiff 
would  have  the  option  of  refusing  to  take  a  part  only  of  the  oil  or  of 
accepting  it,  but  that  right  is  not  inconsistent  with  the  property  vest- 
ing at  his  election.  It  might  vest  in  him  conclusively,  but  at  all  events 
it  would  vest  when  he  exercised  his  option.  For  these  reasons,  I  think 
that  the  rule  ought  to  be  discharged.  Mule  discharged. 

1  7  E.  &  B.  885. 


CAMPBELL    V.    THE    MERSEY    DOCKS,  ETC. 

CAMPBELL  V.  THE  MERSEY  DOCKS  AND  HARBOR  BOARD 


iiS^-=* 


In  THE  Common  Pleas,  April  21,  1863. 

[Reported  in  14  Common  Bench  Reports,  New  Series,  4l2.]  //^ 

This  was  an  action  brought  by  the  plaintiff  to  recover  the  vahie  of 
250  bales  of  Surat  cotton  alleged  to  be  the  property  of  the  plaintiff, 
and  to  have  been  converted  by  the  defendants  under  the  following 
circumstances :  — 

A  cargo  of  cotton  ex  Bosphorus,  consisting  of  500  bales,  arrived  in 
one  of  the  company's  docks  early  in  September,  1862.  The  plaintiff 
was  the  broker  for  the  goods,  and  had  himself  bought  250  bales,  and 
had  sold  the  rest  to  other  parties.  The  landing  commenced  on  the 
8th,  and  was  continued  on  the  9th  and  10th,  when  the  Avhole  were 
landed.  All  had  one  mark,  but  no  numbers;  the  numbers  being 
affixed  by  the  company's  officers  at  the  time  of  landing  and  weighing. 
The  course  of  business  was,  for  the  broker  to  take  a  sample  from  each 
bale,  and  to  submit  the  samples  to  the  inspection  of  two  indifferent 
brokers,  and  on  their  fiat  the  contracts  were  affirmed  or  disaffirmed. 
On  the  present  occasion  the  contracts  were  affirmed.  On  the.  13th  of 
September,  a  warrant  or  certificate  of  warehousing,  pursuant  to  the 
228th  section  of  the  company's  act  (20  &  21  Vict.  c.  162),  was  sent 
to  the  plaintiff  for  250  bales  described  as  being  numbered  from  1  to 
250  and  as  "entered  by  J.  P.  Campbell  on  the  10th  of  September, 
1862 ;  rent  payable  from  the  15th  of  September."  The  plaintiff  there- 
upon paid  for  the  250  bales,  getting  the  warrant  indorsed  to  him,  with 
a  delivery  order  "for  the  above-mentioned  goods,"  dated  the  15th  of 
September.  On  the  7th  of  October,  the  plaintiff  resold  the  cotton, 
and  sent  the  warrant,  indorsed,  with  a  delivery  order  for  the  cotton 
therein  mentioned.  The  buyer  repudiated  the  contract,  on  the  ground 
that  the  cotton  did  not  correspond  with  the  samples ;  and  then,  upon 
the  plaintiff  demanding  back  the  warrant,  the  company's  officers  for 
the  first  time  informed  him  that  200  of  the  bales  numbered  1  to  250 
had  been  inadvertently  delivered  on  the  11th  and  13th  of  September 
to  other  persons,  and  they  offered  him  a  fresh  warrant  for  other  num- 
bers. The  plaintiffj  however,  declined  to  accept  it,  and  brought  this 
action. 

At  the  trial,  before  Keating,  J.,  at  the  last  assizes  at  Liverpool,  it 
was  insisted  on  the  part  of  the  plaintiff  that  the  bales  mentioned  in 
the  warrant  were  so  eai--marked  and  appropriated  to  him  by  the  act  of 
the  company  as  to  vest  the  property  in  him  as  from  the  10th  of  Sep- 
tember. 


^*^^C-^y^ 


874  CAMPBELL   V.    THE    MERSEY    DOCKS,   ETC.  [CHAP.  II. 

On  the  other  hand,  it  Avns  submitted  that  the  mere  act  of  appropria- 
tion by  the  company  of  250  out  of  a  larger  number  of  bales  was  not 
sufficient  to  vest  the  property  in  the  specific  bales  in  the  plaintiff  with- 
out an  assent  to  such  appropriation  on  his  part. 

To  this  latter  argument  the  learned  judge  inclined,  and  he  directed 
the  jury  accordingly. 

One  of  the  jury  asked  his  lordship  whether  the  indorsement  of  the 
warrant  by  the  plaintiff  did  not  amount  to  an  assent  on  his  part  to  the 
appropriation.  The  learned  judge  said  it  was  not  conclusive  ;  but  that 
it  was  open  to  the  company  to  show  that  the  approi^riation  was  a  mis- 
take on  the  part  of  one  of  their  clerks. 

A  verdict  having  been  found  for  the  defendants, 

Edward  James,  Q.  C.  (with  whom  was  J.  A.  Russell),  moved  for  a 
new  trial,  on  the  ground  of  misdirection,  and  that  the  verdict  was 
against  the  weight  of  evidence.  He  submitted  that  by  the  entry  in 
the  plaintiff's  name  and  the  warrant  or  certificate  of  warehousing, 
there  was  a  complete  appropriation  of  the  bales  numbered  1  to  250  to 
the  plaintiff,  and  that  no  assent  on  his  part  was  necessary  to  vest  the 
property  in  those  specific  bales  in  him  ;  and  that,  if  any  assent  was 
necessary,  there  was  abundant  evidence  that  such  assent  was  given  ; 
and  consequently  that  the  defendants  could  not  discharge  their  duty 
by  the  deliveiy  of  any  others. 

Erl]^,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule  in  this 
case.  This  was  an  action  for  the  alleged  conversion  by  the  defendants 
of  250  bales  of  cotton  oiat  of  a  cargo  consisting  of  500  bales ;  and  the 
question  is  whether  or  not  the  property  in  those  250  bales  ever  vested 
in  the  plaintiff.  For  the  affirmative  of  that  proposition,  the  plaintiff 
I'elies  on  a  delivery  order  from  the  vendors  and  the  fact  that  the  de- 
fendants by  their  warrant  or  certificate  of  warehousing  had  sjiecifically 
appropriated  to  him  the  bales  ex  Bosphorus  numbered  from  1  to  250. 
If  there  was  no  appropriation  by  the  company  to  the  plaintiff  of  the 
specific  numbers,  his  case  entirely  fails.  There  certainly  was  some 
evidence  of  appropriation ;  and  the  question  left  to  the  jury  upon  that 
was,  whether  the  evidence  of  that  appropriation  did  not  arise  from  a 
mistake  on  the  part  of  the  company's  clerk.  The  learned  judge  is  not 
dissatisfied  with  the  finding  of  the  jury  upon  that  question.  Then  it 
is  said  that  the  learned  judge  misdirected  the  jury  in  telling  them  that 
the  mere  act  of  appropriation  by  the  company  would  not  vest  the 
property  in  the  plaintiff,  unless  he  had  assented  to  that  appropriation. 
If  there  was  no  appropriation,  this  point  becomes  immaterial.  But,  if 
it  be  material,  I  venture  to  say  that  the  law  as  laid  down  by  the  learned, 
judge  was  well  laid  down.  It  has  been  established  by  a  long  series  of 
cases,  —  of  which  it  will  be  enough  to  refer  to  Hanson  v.  Meyer,  6 
East,  614;  Rugg  v.  Minett,  11  East,  210 ;  and  Rohde  v.  Thwaites,  6  B. 
&  C.  388,  9  D.  &  R.  293,  —  that  the  purchaser  of  an  unascertained 


SECT,  v.]  YOUNG    V.   MATTHEWS.  875 

portion  of  a  larger  bulk  acquires  no  property  in  any  part  until  there 
has  been  a*e]iarntion  and  an  approj^iation  assented  to  both  by  vendor 
and  vendee.  Nothing  passes  until  there  is  an  assent,  express  or  ini])lied, 
on  the  part  of  the  vendee.  The  warehouseman  may  in  some  cases 
be  the  agent  of  the  vendee  for  the  purpose  of  such  assent;  but  noth- 
ing passes  until  there  has  been  a  separation  and  an  appropriation 
assented  to. 

WiLLES,  J.  I  am  entirely  of  the  same  opinion.  The  real  question 
was,  whctlier  the  api)ropriation  of  numbers  1  to  250  was  not  a  mistake. 
The  jury  found  in  substance  that  it  was.  No  property  in  the  goods 
therefore  ever  vested  in  the  plaintiff.  Mr.  James  complains  of  the 
alternative  which  was  put,  —  assuming  that  there  was  an  appropriation, 
was  that  ap]>ropriation  assented  to  by  the  plaintiff?  The  cases  to 
which  my  lord  has  referred  show  what  the  law  on  the  subject  is.  And 
perhaps  the  case  of  Godts  v.  Rose,  17  C.  B.  229,  is  even  more  in  point 
to  show  that  there  must  not  only  be  an  appropriation,  but  an  appro- 
priation assented  to  by  the  vendee.  The  assent  of  the  vendee  may 
be  given  pi'ior  to  the  appropriation  by  the  vendor;  it  may  be  either 
express  or  ini])lied ;  and  it  may  be  given  by  an  agent  of  the  party,  — 
by  the  warehouseman  or  wharfinger,  for  instance.  In  stating  the  prop- 
osition as  he  did,  I  think  my  brother  Keating  stated  a  proposition  which 
is  in  strict  accordance  with  law. 

Byles,  J.,  concurred.  Bule  refused. 


YOUNG  AND  Another  v.  MATTHEWS.  yf  cz^^r^ 

In  the  Common  Pleas,  November  3,  1866. 

[Reported  in  Law  Reports,  2  Common  Pleas,  127.] 

Trover  for  bricks. 

Pleas,  not  guilty,  and  not  possessed. 

This  cnse  was  tried  before  Erie,  C.  J.,  at  the  sittings  for  London 
after  last  Trinity  term,  when  the  following  facts  were  proved:  — 

The  plaintiffs  were  the  assignees  of  Moxon,  a  bankruj^t.  Moxon  was  a 
builder  and  brickmaker,  and  in  the  early  part  of  1865  had  drawn  several 
bills  of  excliange  on  one  Northen,  who  had  accepted  them  for  his  accom- 
modation. When  the  bills  becaine  due  Moxon  was  unable  to  p:iy  them, 
and  agreed  to  sell  Northen  1,300,000  bricks,  and  an  invoice  of  them 
was  made  out  to  him. 

Northen  sent  an  agent  to  the  brickfield  with  an  order  from  Moxon 


876  YOUNG   V.    MATTHEWS.  [CHAP.  II. 

for  the  delivery  of  the  hricks,  and  Moxon's  foreman  then  stated  that 
the  ecclesiastical  commissioners,  who  were  the  owners  of  the  field,  had 
put  in  a  distress  for  rent,  but  that  if  the  man  in  possession  were  paid 
out,  he  should  be  ready  to  deliver  the  bricks,  and  he  pointed  out  three 
clamps  from  which  he  should  make  the  delivery,  of  which  one  consisted 
of  finished  bricks,  a  second  w^as  still  burning,  and  the  third  consisted 
of  bricks  which  had  been  moulded,  but  not  burnt.  Northen's  agent 
then  said,  "  Do  I  clearly  understand  that  you  are  prepared,  and  will 
hold  and  deliver  this  said  quantity  of  bricks?"  and  Moxon'^s  foreman 
said,  "Yes."  Subsequently  on  November  24,  1865,  Moxon  became 
bankrupt,  and  the  ecclesiastical  commissioners  then  sold,  under  the 
distress,  sufficient  bricks  to  cover  the  rent,  and  Northen  afterwards 
sold  the  remainder  to  the  defendant,  who  removed  them  from  the 
field. 

A  verdict  was  found  for  the  defendant,  and  leave  was  reserved  to  the 
plaintiffs  to  move  to  enter  the  verdict  for  them,  on  the  ground  that 
there  was  no  such  appropriation  of  the  goods  as  to  pass  the  property 
in  them  under  the  contract  of  sale. 

Brown,  Q.  C,  moved  for  a  rule,  pursuant  to  the  leave  reserved,  and 
contended  that  the  property  in  the  bricks  could  not  have  passed  to 
Northen  at  the  time  of  the  sale,  nor  at  the  interview  with  Moxon's 
foreman,  something  more  remaining  to  be  done  before  the  bricks  would 
be  ready  for  delivery.  He  cited  Rugg  v.  Minett.^  [Willes,  J.,  re- 
ferred to  Acraman  v.  Morrice.^] 

Eble,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule  in  this 
case.  The  question  is,  whether  the  property  in  the  bricks  passed  to 
Northen  or  not,  and  in  determining  this  we  are  to  look  at  the  intention 
of  the  parties.  It  is  very  material  that  Northen  had  made  large  ad- 
vances to  Moxon,  and  when  the  latter  became  embarrassed  he  might 
well  wish  to  have  all  he  could  appropriated  to  him.  The  well-known 
general  rule,  that  the  property  does  not  pass  to  the  buyer  while  any 
thing  remains  to  be  done  by  the  seller,  either  to  complete  the  goods  or 
to  ascertain  the  price,  does  not,  therefore,  apply  to  the  present  case.  • 
There  is  no  doubt  that  the  parties  could  pass  the  property  in  all  the 
bricks,  whether  finished  or  not,  if  such  was  their  intention ;  and  what 
passed  amounted  to  this :  Northen's  agent  said,  "  Are  all  these  appro- 
priated to  my  principal  ?  "  and  the  seller's  agent  said,  "  Yes."  Even  if 
this  were  not  so,  it  might  be  contended,  on  the  authority  of  Langton 
V.  Waring,^  that  the  defendant  had  an  equitable  right  to  the  goods  as  a 
security  for  the  price  he  had  paid  for  them ;  and  that  the  assignees, 
who  must  have  an  equitable  as  well  as  legal  title,  cannot  therefore 

1  11  East,  210.  2  8  C.  B.  449 ;  19  L.  J.  (C.  P.)  57. 

»  18  C.  B,  (n.  b.)  315. 


SECT,  v.]  JENNER   V.    SMITH.  877 

recover.  Under  the  circumstances,  however,  it  is  unnecessary  to  decide 
this. 

AYiLLES,  J.     I  am  of  the  same  opinion. 

Byles,  J.  This  is  not  Uke  a  sale  of  unascertained  goods ;  the 
goods  were  ascertained  and  pointed  out,  though  not  finished ;  and  it 
apj^ears  to  have  been  the  intention  of  the  parties  that  the  property  in 
them  should  pass  to  Northen. 

Keating,  J.,  concurred.  Hule  refused. 


J^TytC  /-^^    -^  JENNER  V.   SMITH J^ 

A^/.x^>  ''/'//^SIn  the  Common  Pleas,  April  30,  1869.  j     /^^^ 

Jyt/^  JTy       ,  ^-1  ^  - —        [Reported  in  Law  Reports,  4  Common  Pleas,  270.]  .   y  -"7^    "y^ 

^<7 —        Action  for  goods  bargained  and  sold  and  goods  sold  arfa  aelivered.  //^//^^ 
"^"^'^^  Pleas:  Never  indebted,  payment,  and  payment  of  Ss.  2c?.  into  court.    >^ 
(^^  /    J  Replication,  taking  issue,  and  damages  ultra.  ^^^^^i'%2^ 

The  cause  was  tried  before  Brett,  J.,  at  the  sittings  at  Westminster  ^ 
after  last  Michaelmas  term.     The  facts  were  as  follows:   On  the  14tli^//^^^^ 
of  October,  1867,  the  plaintiff,  who  is  a  hop-merchant  in  London,  met  . 

the  defendant,  a  maltster  of  Devizes,  at  Weyhill  Fair,  Hants.     The  '^  ^^^ 
defendant  wished  to  buy  of  the  plaintiff  four  pockets  of  Carpenter's    2^/i^^^ 
Sussex  hops  which  the  plaintiff  had  there ;  but,  as  the  plaintiff  hadJl-.'  ^» 
already  sold  two  of  them,  he  proposed  to  sell  the  defendant  in  lieu  of' 
them  two  pockets  of  Tliorpe's,  of  which  he  showed  him  a  sample,  offer- 
ing to  let  the  defendant  have  the  two  j^ockets  of  Carpenter's  at  £9  per 
cwt.  (the  price  of  that  day's  fair  being  £9  95.),  if  he  would  take  two 
pockets  of  Thorpe's  at  £7  15s.  per  cwt.     The  plaintiff  at  the  same 
•  time  or  shortly  after  informed  the  defendant  that  the  last-mentioned 
two  pockets  were  lying  at  Prid  &  Son's  warehouse,  Kentish  Buildings, 
South wark,  and  agreed  that  he  should  have  them  upon  the  same  terms 
as  if  they  had  been  in  bulk  at  the  fair,  that  is,  that  he  should  be  at  no 
expense  for  warehousing  or  carriage.     The  defendant  consented   to 
purchase  the  four  pockets  upon  these  terms,  and  took  aAvay  with  him 
the  two  pockets  of  Carpenter's,  but  requested  that  the  two  pockets  of 
Thorpe's  should  not  be  sent  until  he  wrote  for  them. 

The  plaintiff  had  at  this  time  three  pockets  of  Tliorpe's  hops  at  the 
warehouse  of  Prid  &  Son.  On  the  21st  of  October,  the  plaintiff's  son 
went  to  the  warehouse,  and  instructed  the  warehouseman  to  set  apart 
two  of  the  three  pockets  of  Thorpe's  for  the  defendant;  and  the  ware- 
houseman thereupon  placed  on  two  of  them,  numbered  respectively 


878  JENNER    V.    SMITH.  [CHAP.  II. 

one  and  three,  what  is  called  a  "  wait  order  card,"  that  is,  a  card  upon 
which  was  written,  "  To  wait  orders,"  and  the  name  of  the  vendee. 
No  alteration,  however,  was  made  in  the  warehouse  books ;  and  the 
plaintiff,  the  original  depositor,  still  remained  liable  for  the  rent. 

On  the  4th  of  November,  the  plaintiff  sent  the  defendant  an  invoice 
as  follows,  at  the  same  time  inclosing  a  draft  for  acceptance :  — 

Mr.  S.  Smith, 

Bought  of  Charles  Jenner, 

2  pockets  Sussex  hops  (Carpenter,  1867), 
No,  2     ...     1  cwt.  2  qrs.  26  lbs. 
4     ...     1  cwt.  2  qrs.  13  lbs. 

3  cwt.  1  qr.  11  lbs.  fa)  £9  per  cwt.  £30    25.    8d. 

2  pockets  Sussex  hops  (Thorpe,  1867), 
No.  1     ...     1  cwt.  2  qrs.  27  lbs. 
3     ...     1  cwt.  0  qr.  21  lbs. 

2  cwt.  3  qrs.  20  lbs.  (a)  £7  15s.  per  cwt.  £22  13s.  lOd. 

£52  16s.  6d. 
The  two  last  pockets  of  hops  are  lying  to  your  order. 

On  the  8th  of  November  the  defendant  wrote  to  the  plaintiff  as 
follows :  — 

SiK^  — I  have  returned  your  bill  unsigned  ;  but,  as  I  have  never  received  the 
two  pockets  of  hops  or  heard  any  thing  about  them,  I  concluded  you  had  not 
thought  of  sending  them,  and  have  made  an  exchange  for  some  malt,  and  shall 
not  require  them.  As  I  will  never  sign  a  bill,  I  will  pay,  as  was  agreed,  in  Feb- 
ruary, the  weight  of  the  two  Carpenter's. 

The  defendant  subsequently  paid  the  price  of  the  two  pockets  which 
he  had  received,  all  but  a  small  balance  which  was  covered  by  the  pay- 
ment into  court. 

It  was  objected  on  the  part  of  the  defendant  that,  as  to  the  two 
pockets  of  Thorpe's  hops,  there  was  no  contract  binding  within  the 
Statute  of  Frauds,  no  delivery  or  acceptance,  or  part  payment,  and  no 
evidence  of  goods  bargained  and  sold. 

For  the  plaintiff  it  was  insisted  that  the  whole  was  one  bargain,  and 
consequently  that  there  had  been  a  part  delivery  and  part  payment,  and 
that  the  property  in  the  whole  four  pockets  passed  by  the  contract. 

The  learned  judge  ruled  that  it  was  one  entire  contract,  and  that, 
therefore,  there  had  been  a  part  delivery  so  as  to  make  a  contract  bind- 
ing within  the  Statute  of  Frauds ;  that  the  plaintiff  could  not  rely  upon 
the  part  payment,  because  the  defendant,  at  the  time  of  making  the 
payment,  repudiated  the  bargain  as  to  the  two  pockets  in  question; 
that,  though  there  was  a  binding  contract,  the  property  did  not  pass 
thereby,  inasmuch  as  the  contract  was  to  deliver  two  out  of  a  larger 
number  of  pockets  of  Thorpe's  hops  equal  to  sample,  the  price  to  be  de- 


SECT,  v.]  JENNER   V.    SMITH.  879 

termined  accorrling  to  the  weight;  and  that  there  had  been  no  sufficient 
appropriation  afterwards  to  pass  the  proj^erty,  because  Prid  &  Son 
never  bound  tlieiaselves  to  liold  for  the  defendant  instead  of  for  the 
phiintiff.  He  thereu2)on  nonsuited  the  phiintiff,  reserving  liim  leave  to 
move  to  enter  a  verdict  for  £22  135.  lOcl,  the  court  to  draw  inferences 
of  fact. 

3Iorgan  JJoyd,  in  Hilary  term  last,  obtained  a  rule  nisi  accordingly. 

H.  T.  Cole^  Q.  C,  and  Bromley  showed  cause.  The  rule  of  law 
which  must  govern  this  case  is  laid  down  in  Blackburn  on  the  Contract 
of  Sale,  pp.  151, 152 :  Where  the  vendor  is  to  do  any  thing  to  the  goods 
for  the  purpose  of  putting  them  into  a  deliverable  state,  or  for  the  pur- 
pose of  ascertaining  the  price,  as,  by  weighing,  measuring,  &c.,  the 
performance  of  those  things  is  a  condition  precedent  to  the  transfer  of 
the  property :  Hanson  v.  Meyer ;  ^  Rugg  v.  Minett ;  ^  Castle  v.  Sworder  ;^ 
Simmons  v.  Swift;*  Farina  v.  Home;^  Hunt  v.  Hecht ;  ^  Acraman  v. 
Morrice ; '  Godts  v.  Rose.^  Here  two  things  remained  to  be  done  before 
the  property  in  the  two  pockets  of  Thorpe's  hops  could  vest  in  the 
defendant :  he  had  a  right  to  object  to  them  if  not  equal  to  sample ; 
and  the  price  was  to  be  ascertained  by  the  weight.  The  plaintift'  had 
three  pockets  at  Prid's  warehouse.  He  might  have  had  a  hundred. 
That  which  was  done  at  the  warehouse  Avithout  the  knowledge  or 
assent  of  the  defendant  was  not  such  an  appropriation  as  to  pass  the 
projierty  to  him  in  the  two  so  selected.  In  the  course  of  the  argu- 
ment in  Bannerman  v.  Wliite,"  Willes,  J.,  says :  "  The  property  docs 
not  pass  by  the  contract  of  sale ;  but  only  \\\)0\\  acceptance,  after  inspec- 
tion and  weighing.  Our  law  is  peculiar  in  that  respect."  In  Ald- 
ridge  v.  Johnson,^°  Lord  Campbell,  C.  J.,  says :  "  No  rule  of  the  law  of 
vendor  and  purchaser  is  more  clear  than  this,  that,  until  the  appropri- 
ation and  sei>aration  of  a  particular  quantity,  or  signification  of  assent 
to  the  particular  quantity,  the  property  is  not  transfei'red."  And  Erie, 
C.  J.,  affirms  the  same  principle  in  Campbell  v.  Mersey  Dock  Trustees.^^ 
[Benjamin  on  the  Sale  of  Personal  Property,  115,  222,  223,  was  also 
referred  to.] 

Morgan  Lloyd.,  in  support  of  the  rule.  This  case  is  governed  by  the 
rule  laid  down  by  Erie,  J.,  in  Aldridge  v.  Johnson.^-  [Keating,  J. 
There  the  bulk  had  been  seen  and  apj)roved  of,  all  that  remained  to  be 
done  was  to  appropriate  the  quantity  sold  to  the  plaintifi';  and  it  was 

1  6  East,  614.  .  2  H  East,  210. 

3  6  H.  &  N.  828 ;  30  L.  J.  (Ex.)  310.         •«  5  B.  &  C.  857. 

5  16  M.  &  W.  119.  «  8  Ex.  814;  22  L.  J.  (Ex.)  293. 

7  8  C.  B.  449 ;  19  L.  J.  (C.  P.)  57.  8  17  c.  B.  229 ;  25  L.  J.  (C.  P.)  61. 

9  10  C.  B.  fN.  s.)  844,  855. 

10  7  E.  &  B.  885,  898  ;  20  L.  J.  (Q.  B.)  296,  299. 

11  14  C.  B.  (n.  s.)  412. 

12  7  E.  &  B.  885,  900 ;  26  L.  J.  (Q.  B.)  at  p.  300. 


880  JENNER   V.   SMITH.  [CHAP.  II. 

held  that  the  filling  his  sacks  was  an  appropriation,  with  his  assent,  of 
so  much  of  the  barley  as  had  been  put  into  the  sacks.  But  here  there 
was  no  appropriation.  Could  not  the  plaintiff  have  satisfied  his  con- 
tract by  delivering  to  the  defendant  any  two  pockets  of  Thorpe's  hops 
which  were  equal  to  the  sample  ?]  It  is  submitted  he  could  not.  The 
plaintiff  at  the  time  of  the  bargain  informed  the  defendant  that  he  had 
some  pockets  of  Thorpe's  hops  at  Prid  &  Son's  Af  arehouse,  of  which 
he  contracted  to  sell  him  two.  That  gave  the  plaintiff  authority  to 
set  aside  two  of  those  pockets  as  the  hops  contracted  for,  to  await  the 
purchaser's  convenience.  The  plaintiff  accordingly  Avent  to  the  ware- 
house and  instructed  the  warehouseman  to  set  apart  two  pockets  to 
await  the  orders  of  the  purchaser.  Having  thus  made  his  election, 
and  communicated  it  to  the  defendant  by  the  letter  of  the  4th  of 
November,  the  appropriation  was  complete,  and  could  not  be  recalled. 
Blackburn  on  the  Contract  of  Sale,  p.  128,  citing  Heyward's  Case,^ 
Fragano  v.  Long,^  and  Atkinson  v.  Bell.^  If  the  two  pockets  were 
equal  to  sample,  —  and  there  was  no  suggestion  that  they  were  not,  — 
the  appropriation  was  made  Avith  the  assent  of  the  defendant;  for, 
when  the  invoice  Avas  sent  to  him  with  the  number  and  Aveight  of  each 
pocket,  and  an  intimation  that  they  were  lying  at  the  Avarehouse  to  his 
order,  he  did  not  repudiate  it.  [Brett,  J.  My  brother  Blackburn 
treats  the  subject  of  appropriation  at  p.  127.  There  is  no  pretence  for 
saying  there  Avas  any  previous  authority  here ;  and  there  Avas  no  subse- 
quent assent  to  the  appropriation,  for  the  defendant,  in  his  reply  to  the 
letter  inclosing  the  invoice,  repudiated  the  Avhole  transaction.]  The 
defendant's  request  that  the  plaintiff  Avould  keep  the  two  pockets  of 
Thorpe's  hops  until  he  should  want  them,  Avas  an  authority  to  the 
latter  to  make  the  appropriation.  [Keating,  J.  It  is  difficult  to  say 
that  the  right  of  selection  is  conceded  to  the  vendor,  whilst  the  corre- 
spondence of  the  bulk  Avith  the  sample  and  the  price  remain  to  be 
ascertained.]  The  price  per  cwt.  was  agreed  on;  and  the  Aveighing 
rule  is  inapplicable  to  a  sale  of  specific  packages, 

Keating,  J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
The  action  is  brought  to  recover  the  price  of  two  pockets  of  hops  as 
sold  and  delivered  and  bargained  and  sold.  It  appears  that  the  parties 
met  in  October,  1867,  at  Weyhill  Fair,  and  that  it  was  orally  agreed 
betAveen  them  that  the  defendant  should  purchase  of  the  plaintiff  tAvo 
pockets  of  Carpenter's  Sussex  hops,  which  were  then  in  the  fair,  and 
had  been  inspected  by  the  defendant,  at  £9  per  cwt.,  and  also  tAvo 
pockets  of  Thorpe's  hops,  of  Avhich  a  sample  Avas  shown,  at  £7  15s.  per 
CAvt.  After  the  purchase  had  been  agreed  on,  the  defendant  Avas  in- 
formed that  the  latter  Avere  lying  in  a  Avarehouse  in  London,  and  he 
requested  that  they  might  be  left  there  until  he  sent  Avord  that  he  was 

1  2  Co.  Kep.  36.  2  4  B.  &  C.  219.  s  g  b.  &  C.  277. 


SECT,  v.]  JENNER   V.    SMITH.  881 

ready  to  receive  them.  On  the  4th  of  November  the  plaintiff  sent  an 
invoice  describing  the  numbers,  weight,  and  price  of  the  four  pockets, 
with  an  intimation  that  tlie  two  |)Ockets  of  Thorpe's  were  lyin"-  at  the 
warehouse  to  tlie  defendant's  orders.  The  phiintilf  had  tliree  pockets 
of  Thorpe's  hops  at  the  warehouse ;  and  he  had  in  the  mean  time  gone 
to  the  warehouse  and  directed  the  warehouse-keeper  to  put  certain 
marks  upon  two  of  them,  to  indicate  that  they  were  sohl  ami  were  to 
wait  the  orders  of  the  purchaser.  No  alteration,  however,  was  made 
in  the  books  of 'the  warehouse-keeper;  nor  was  any  intimation  of  this 
api)ropriation  of  the  two  pockets  given  to  the  defendant  until  the  4th 
of  November,  when  the  invoice  was  forwarded  to  him.  The  defendant 
declined  to  accept  the  two  pockets.  At  the  trial  various  objections 
were  urged.  It  was  said,  amongst  other  things,  that  there  was  no  con- 
tract as  to  the  two  pockets  of  Thorpe's  hops  to  bind  the  defendant 
within  §  17  of  the  Statute  of  Frauds ;  that  the  contracts  for  the  pur- 
chase of  the  two  pockets  of  Carpenter's  hops  and  for  the  two  pockets 
of  Thorpe's  were  distinct  contracts ;  and  that,  consequently,  there  had 
been  no  delivery  or  part-payment  to  take  the  case  out  of  the  statute. 
My  brother  Brett  ruled  that  the  contract  was  entire,  and  the  objection 
founded  upon  the  Statute  of  Frauds  was  thus  got  rid  of.  Then  came 
the  question  whether  the  covmt  for  goods  sold  and  delivered  or  goods 
bargained  and  sold  could  be  maintained,  the  property  in  the  goods  not 
having  passed.  Upon  this  my  brother  Brett  nonsuited  the  plaintiff, 
but  gave  leave  to  move  to  enter  a  verdict  for  the  plaintiff  for  the  price 
of  the  two  pockets  in  dispute,  reserving  power  to  the  court  to  draw 
such  inferences  as  a  jury  might  draw.  The  question  before  us,  there- 
fore is,  whether,  upon  the  facts  proved,  we  can  see  that  the  property 
in  the  hops  passed  to  the  defendant  so  as  to  make  him  liable  in  this 
action.  The  general  rule  of  law  was  not  contested  on  the  part  of  the 
plaintiff,  that,  where  an  article  (not  specific)  is  sold,  but  something 
remains  to  be  done  by  the  vendor  before  it  is  despatched  to  the  vendee, 
no  property  passes  by  the  contract  of  sale.  It  was  contended  on  the 
part  of  the  defendant  that  much  remained  to  be  done  before  the  prop- 
erty could  pass,  —  that,  the  hops  having  been  sold  by  sample,  they 
would  require  to  be  inspected,  and  to  be  weighed,  in  order  to  ascertain 
the  price.  On  the  other  hand  it  was  urged  that,  though  that  may  be 
80  as  a  general  rule,  Aldridge  v.  Johnson  ^  and  other  cases  show  that, 
if  it  appears  from  the  contract  that  the  vendee  has  made  the  vendor 
his  agent  for  the  purpose  of  weighing  and  doing  all  the  other  acts 
necessary  to  be  done  to  pass  the  property,  the  property  in  the  goods 
will  pass  so  soon  as  those  acts  are  done.  It  is,  however,  observable 
that  in  Aldridge  v.  Johnson  the  bulk  of  the  barley  had  been  inspected 
and  approved,  and  all  that  remained  to  be  done  was  to  sever  and 

1  7  E.  &  B.  886;  26  L.  J.  (Q.  B.)  296. 


882  JENNER    V.    SMITH.  [CHAP.  II. 

measure  the  portion  to  be  appropriated  to  the  vendee ;  and  that  the 
vendor  had  filled  a  number  of  sacks  which  had  been  sent  by  the 
vendee,  thereby  measuring  it.  The  barley  which  was  to  be  appro- 
priated to  the  fulfilment  of  the  contract  was  therefore  severed  from 
the  bulk  and  measured  with  the  assent  of  both  parties.  There  could 
be  no  doubt  that  the  property  in  the  barley  so  dealt  with  passed.  Mr. 
Lloyd  sought  to  bring  the  present  case  within  that  by  saying  that  a 
similar  extensive  authority  was  conferred  by  the  defendant  on  the 
plaintiff  in  this  case.  I  cannot  draw  any  such  inference  from  the  facts 
proved  here :  on  the  contrary,  I  think  they  negative  it.  I  cannot  sup- 
pose that  the  defendant  meant  to  part  with  the  right  of  objecting  to 
the  correspondence  of  the  hops  with  the  sample,  or  of  insisting  on  the 
weight  being  ascertained,  before  the  property  passed.  It  is  true,  there 
was  an  intimation  to  the  warehouse-keeper  that  the  two  pockets  num- 
bered one  and  three  had  been  sold  to  the  defendant ;  but  no  transfer 
was  made  in  his  books,  and  he  still  held  them  at  the  charge  and  at  the 
risk  of  the  vendor.  I  think  it  is  impossible  for  the  court  to  draw  the 
inference  that  an  authority  such  as  was  given  in  Aldridge  v.  Johnson^ 
was  given  here ;  and  if  no  such  authority  was  given,  the  case  is  brought 
within  the  multitude  of  authorities  in  which  it  has  been  held  that, 
where  there  is  a  sale  of  unascertained  goods  with  reference  to  which 
something  remains  to  be  done  by  the  vendor .  before  delivery  to  the 
vendee,  no  property  passes  until  that  has  been  done. 

Brett,  J.  At  the  trial  I  proposed  to  nonsuit  the  plaintiff,  on  the 
ground  that  there  was  no  evidence  to  go  to  the  jury  in  support  of  the 
count  for  goods  bargained  and  sold.  It  was  not  then  suggested  that 
there  was  any  authority  from  the  defendant  to  the  plaintiff"  to  select 
the  two  pockets  for  him.  If  it  had  been,  I  should  not  have  nonsuited 
the  iDlaintiflT,  but  would  have  left  that  question  to  the  jury.  The  ques- 
tion now  is,  not  whether  there  was  any  evidence  for  the  jury,  but 
whether  the  court  can  infer  from  the  facts  proved,  that  the  property 
in  the  two  pockets  of  Thorpe's  passed.  It  is  clear  that  no  property 
1  passed  by  the  contract  itself  The  contract  was  for  a  sale  by  sample 
of  unascertained  hoj)s,  the  price  depending  on  the  weight.  Then 
comes  the  case  put  by  my  brother  Blackburn  in  the  passage  at  p.  127, 
to  which  I  referred  in  the  course  of  the  argument.  Here  there  was 
no  previous  authority  given  to  the  plaintiff"  to  ajjpropriate ;  and,  if  not, 
what  evidence  was  there  to  show  that  the  appropriation  of  the  two 
pockets  in  Prid  &  Son's  warehouse  was  ever  assented  to  by  the  de- 
fendant '?  The  defendant's  assent  might  have  been  given  in  either  of 
two  ways,  —  by  himself,  or  by  an  authorized  agent.  By  himself,  after 
the  receij^t  of  the  letter  containing  the  invoice ;  or  by  the  warehouse- 
keepers,  if  there  had  been  any  evidence  of  agency  or  authority  in  them 

1  7  E.  &  B.  885;  26  L.  J.  (Q.  B.)  296. 


SECT,  v.]  MERRITT   V.    JOHNSON.  883 

to  accept,  and  assent  by  thera  to  hold  the  hops  for  liim.  I  think  tlie 
defendant's  letter  refusing  to  accept  the  draft  was  strong,  if  not  con- 
clusive, to  show  that  there  had  been  no  such  assent  by  the  defendant. 
And,  as  to  Prid  &  Son,  the  evidence  lails  on  both  points.  They 
never  agreed  to  hold  the  two  ])ockets  on  behalf  of  the  purchaser ;  and, 
if  they  did,  there  is  no  evidence  of  any  authority  from  liiia  that  tliey 
might  do  so.  Mr.  Lloyd  has  strongly  put  forward  a  point  which  was 
not  made  at  the  trial,  viz.,  that  there  was  evidence  that,  by  agreement 
between  the  jiarties,  the  purchaser  gave  authority  to  the  seller  to  select 
the  two  pockets  for  him.  If  he  did  so,  he  gave  up  his  power  to  object 
to  the  weighing  and  to  the  goods  not  corresponding  with  the  sample ; 
for  he  could  not  give  such  authority  and  reserve  his  right  so  to  object; 
and  indeed  it  has  not  been  contended  that  he  gave  up  those  rights. 
That  seems  to  me  to  be  conclusive  to  show  that  the  defendant  never 
gave  the  plaintiff  authority  to  make  the  selection  so  as  to  bind  him. 
Under  the  circumstances,  therefore,  it  is  impossible  to  say  that  the 
property  passed ;  consequently  the  plaintiff  cannot  recover  as  for  goods 
bargained  and  sold.  Hule  discharged. 


D.   MERRITT   v.   JOHNSON. 
Supreme  Court  op  New  York,  February  Term,  1811. 

[Reported  in  7  Johnson,  473.] 

This  was  an  action  of  trover.     At  the  trial,  the  following  facts  were 
proved : — 

On  the  24th  September,  1805,  Joseph  Travis  and  Ebenezer  Merritt 
entered  into  an  agreement  by  which  Travis,  who  is  a  shipwright,  in 
consideration  of  $1300,  agreed  to  biuld  a  sloop  for  him,  of  certain 
dimensions,  expressed  in  the  agreement.  Travis  engaged  to  furnish 
the  timber  requisite  to  complete  the  frame  of  the  vessel,  at  the  ship- 
yard. The  joiner's  work  was  to  be  done  at  the  expense  of  Ebenezer 
Merritt.  The  vessel  was  to  be  completed  and  launched  on  or  before 
4th  July,  1806.  Ebenezer  Merritt  engaged  to  pay  Travis  one-third  of 
the  sum  of  11800  as  soon  as  one-third  of  the  work  was  done,  one-third 
of  tlie  same  sum  as  soon  as  two-thirds  of  the  Avork  were  done,  and  the 
other  third  of  the  said  sum  when  the  whole  of  the  work  was  completed, 
if  in  the  opinion  of  A.  and  B.  the  sloop  was  well  built,  &c. ;  and  if 
they  decided  she  was  well  built,  &c.,  then  Ebenezer  Merritt  was  to  pay 
a  further  sum  of  fifty  dollars,  otherwise  such  sum  was  not  to  be  paid ; 
and  Travis  was  to  pay  all  damages  arising  from  a  breach  of  his  agree- 
ment, &c. 


884  MERRITT   V.   JOHNSON.  [CHAP.  II. 

In  pursuance  of  this  agreement,  Ebenezer  Merritt  furnished  various 
materials  for  the  vessel,  and  advanced  money  to  Travis  with  which  to 
purchase  other  materials.  On  the  1st  of  May,  1806,  Ebenezer  Merritt 
assigned  the  contract  with  Travis,  and  his  interest  in  the  vessel,  then 
unfinished,  to  the  plaintiff,  who  continued  to  furnish  materials,  and 
advance  money  to  Travis  on  the  contract,  until  about  one-third  of  the 
vessel  was  finished,  being  planked  up  to  the  whales,  and  the  whole  ex- 
penditure amounted  to  about  $1030  ;  Travis  having  furnished  such 
matei-ials  as  he  was  bound  by  the  contract  to  supply  up  to  that  period. 
At  this  time  Si  fieri  facias  was  issued  out  of  this  court  on  a  judgment 
against  Travis,  on  which  the  sheriff  seized  and  sold  the  vessel  in  her 
unfinished  state,  as  the  property  of  Travis.  The  plaintiff  named  in 
the  execution  purchased  the  vessel  at  the  sheriff's  sale,  and  afterwards 
sold  her  for  $200,  to  the  defendant  in  this  suit,  wlio  was  acquainted 
with  all  the  facts,  and  was  told  b_y  the  vendor  that  he  w^ould  not  war- 
rant the  title,  unless  he  received  a  full  price,  which  the  defendant 
refused  to  pay. 

In  August,  1808,  the  plaintiff  made  a  formal  demand  of  the  vessel 
of  the  defendant  who  refused  to  deliver  her ;  but  afterwards  com- 
pleted and  sold  her.  At  the  time  of  the  sheriff's  sale  nothing  was  due 
from  the  plaintiff  to  Travis  on  the  contract.  The  vessel  was  built  upon 
ground  belonging  to  third  persons,  which  Travis  hired,  with  a  house 
and  the  privilege  of  building  vessels  on  the  ground,  at  the  rent  of 
thirty-five  dollars  per  annum. 

A  verdict  was  taken  for  the  plaintiff,  subject  to  the  opinion  of  the 
court,  on  a  case  containing  the  above  facts,  and  w^hich  w^as  submitted 
to  the  court  without  argument. 

Per  Cueiam.  The  plaintiff  has  not  shown  a  riglit  of  property  in  the 
sloop  so  as  to  entitle  him  to  an  action  of  trover.  The  sloop  was  built 
by  Travis,  not  on  the  ground  of  the  plaintiff,  or  of  Ebenezer  Merritt, 
from  wiiom  he  purchased  his  present  right  of  action.  It  was  built  on 
ground  belonging  to  third  persons,  and  hired  by  Travis  for  this  pur- 
pose. The  principal  part  of  the  materials  for  the  sloop,  such  as  the 
timber  for  the  frame,  Avas  furnished  by  Travis,  and  the  sloop  was  one- 
third  finished  and  planked  up  to  the  wales,  when  she  was  seized  and 
sold  by  the  sheriff  as  the  property  of  Travis,  and  under  that  sale  the 
defendant  holds  the  possession.  The  plaintiff's  right  rested  entirely 
on  the  contract  with  Travis ;  and  the  sloop  did  not  become  his  prop- 
erty until  finished  and  delivered.  The  ground  on  which  the  frame  of 
the  sloop  stood,  did,  for  that  occasion,  belong  to  Travis,  and  as  he 
furnished  all  the  timber  for  the  fi-ame,  he  certainly  contributed  the 
principal  part  of  the  materials.  There  is  then  no  just  pretence  for  con- 
sidering the  property  of  the  unfinished  sloop  as  vested  in  Merritt. 
When  the  materials  of  another  are  united  to  materials  of  mine,  by  my 
labor,  or  by  the  labor  of  another,  and  mine  are  the  principal  materials, 


SECT,  v.]  JOHNSON   V.    HUNT.  885 

and  those  of  the  other  only  accessory,  I  acquire  the  riglit  of  property 
in  tlie  wliole,  by  right  of  accession.  This  is  considered  as  a  general 
principle  in  the  acquisition  of  property.  It  is  so  laid  down  by  Brac- 
ton  (de  acqid.  rerum  dom.  c.  2,  §§  3,  4),  and  Pothier  illustrates  it  by  a 
variety  of  clear  and  apposite  examples.  Traite  die  Droit  de  Proprietey 
No.  169,  180.  Molloy  (b.  2,  c.  1,  §  7)  applies  a  similar  principle  to 
the  very  case  of  building  a  vessel,  and  he  refers  to  the  Pandects,  Lib. 
6,  1,  61,  where  it  is  admitted  that  if  one  repairs  his  vessel  with  an- 
other's materials,  the  property  of  the  vessel  remains  in  him ;  but  if  he 
builds  a  vessel  from  the  foundation,  Avith  the  materials  of  another,  the 
vessel  belongs  to  the  owner  of  the  materials.  Gothofredus,  in  his  notes 
upon  this  passage,  says  that  if  one  builds  a  ship  with  his  own  and 
another's  materials,  the  ship  is  his  property,  unless  the  keel  was  fur- 
nished by  the  other,  and  then  the  property  would  follow  the  keel, 
which  he  considers  instar  soli  et  fundi.  But  Avithout  pursuing  these 
distinctions  further,  it  is  sufficient  to  observe  that  upon  the  principles 
acknowledged  by  all  the  writers,  the  property  of  the  vessel  in  question 
was  in  Travis  when  she  was  sold  under  the  execution  against  him,  and 
judgment  must  accordingly  be  rendered  for  the  defendant. 

Judgment  for  the  defendant. 


JOHNSON  V.   HUNT. 
Supreme  Court  op  New  York,  January  Term,  1834. 

[Reported  in  11  Wendell,  135.] 

This  was  an  action  of  replevin,  tried  at  the  Albany  circuit  in 
September,  1831,  before  the  Hon.  James  Vanderpoel,  one  of  the  circuit 
judges. 

On  the  21st  August,  1829,  a  contract  was  entered  into  by  which 
the  defendant  agreed  to  build  a  house  for  the  plaintiftj  finding  the  ma- 
terials for  the  Avood-work,  and  doing  the  work,  and  engaging  to  complete 
the  job  by  the  1st  May,  1830.  The  plaintilF  on  his  part  engaged  to 
pay  for  the  same  $1525,  in  manner  following  :  when  timber  should  be 
delivered  on  the  ground  for  framing,  8100 ;  Avhen  the  frame  should  be 
raised,  $200 ;  on  the  first  of  December,  $150 ;  the  like  sum  on  the  first 
day  of  each  of  the  four  succeeding  months,  "  provided  the  work  shall 
advance  according  to  the  payments  made;  "  making  §1050  to  be  i)aid  by 
the  first  day  of  April,  and  the  remainder,  viz.,  $475,  when  the  house 
should  be  finished.  After  the  house  was  enclosed,  the  defendant  worked 
plank  belonging  to  him  into  eight  columnsforpiazzas,  one-half  of  which 
VOL.  I.  67 


886  JOHNSON   V.    HUNT.  [CHAP.  II. 

were  intended  for  the  house  building  for  the  plaintiff,  and  the  other  half 
for  a  house  which  the  defendant  was  then  buildino;  for  a  Mr.  Earl. 
These  columns  were  worked  in  the  house  building  for  the  plaintiiF,  and 
to  make  room  for  the  masons  to  do  their  work,  the  columns  were  re- 
moved to  the  store  of  a  Mr.  Burrows.  The  defendant  also  procured 
and  deposited  in  the  same  store  four  carved  capitals  and  three  bases  for 
the  columns,  and  six  carved  window  and  door  caps.  After  a  barn  was 
enclosed,  which  the  defendant  was  building  for  the  j^laintiff  on  the  same 
lot  on  which  the  house  was  erected,  the  columns  and  other  materials 
were  removed  thereto,  and  subsequently  four  of  the  columns  w^ere 
taken  therefrom  and  used  in  the  erection  of  Earl's  house.  The  other 
columns  and  the  carved  work  remained  in  the  barn  until  June  or  July, 
1830,  when  the  defendant  broke  open  the  barn  and  took  and  earned 
them  away.  For  this  proj^erty  the  action  was  brought.  The  plaintifi" 
proved  payments  made  by  him  to  the  defendant,  to  the  amount  of 
$1700,  and  that  the  defendant,  about  two  weeks  previous  to  taking  the 
property  from  the  barn,  abandoned  the  job  he  had  undertaken,  saying 
he  would  not  work  any  more  at  it,  unless  the  plaintiff"  would  pay  him 
m^ore  money.  It  was  proved  on  the  part  of  the  defendant,  in  pursuance 
of  a  notice  attached  to  his  plea,  that  on  the  5th  May,  1830,  while  the 
projjerty  in  question  remained  in  the  store  of  Burrows,  it  was  levied 
upon  by  a  deputy  of  the  sheriff"  of  Albany,  by  "\artue  of  an  execution 
against  the  defendant  for  the  sum  of  $556,  who  left  the  same  in  the 
possession  of  the  defendant.  The  value  of  the  property  was  testified 
to.  The  judge  ruled  that  the  plank  from  Avhich  the  columns  were 
worked,  though  purchased  by  the  defendant,  became  the  property  of 
the  plaintiff"  Avhen  the  same  were  delivered  uj^on  the  i)laintiff"'s  lot ;  and 
though  the  lumber  used  in  j^reparing  the  columns  in  question  had  not 
been  separated  from  that  used  in  preparing  the  columns  for  Earl's  house 
at  the  time  of  the  levy,  yet  that  it  was  subsequently  sej^arated,  and  that 
it  was  reasonable  to  j^resume  that  the  defendant  intended  it  for  the 
house  of  the  plaintiff";  and  as  to  the  carved  work,  that,  though  it  had 
not  been  delivered  upon  the  jDremises  of  the  plaintiff"  at  the  time  of  the 
levy,  still  it  had  been  procured  for  the  plaintiff"'s  house,  and  immediately 
upon  its  being  so  procured,  and  before  a  delivery  i;pon  the  premises 
of  the  plaintiff",  it  became  the  property  of  the  plaintiff".  To  which  de- 
cision the  defendant  excepted.  The  jury,  under  the  charge  of  the 
judge,  found  a  verdict  for  the  plaintiff",  which  the  defendant  now  moved 
to  set  aside. 

e/i  Incline,  for  the  defendant.  The  ownership  of  the  property  claimed 
in  this  suit  was  either  in  the  defendant  or  in  the  sheriff"  of  Albany,  and 
of  course  the  plaintiff"  ought  not  to  have  recovered.  Until  worked  into 
the  house  and  become  j)art  of  the  realty,  it  was  not  the  property  of  the 
plaintiff".  Had  it  been  destroyed  in  the  store  of  Burrows,  or  while  in 
the  barn,  the  loss  would  have  fallen  upon  the  defendant,  and  not  upon 


SECT,  v.]  JOHNSON    V.    HUNT.  887 

the  plaintiff.     lie  cited  1  Taunt.  318,  7  Johns.  R.  473,  15  id.  349,  7 
Wendell,  406. 

3L  T.  Reynolds,  for  phiintiff.  The  cases  cited  on  the  other  side 
relate  exclusively  to  personal  property.  Here  the  property  was  con- 
nected with  the  realty.  The  payments  were  to  be  made  as  the  woi'k 
progressed,  and  the  moment  materials  appropriated  to  the  building 
were  brought  upon  the  ground,  the  right  of  ownership  attacheil  in  the 
plaintiff  as  effectually  as  when  subsequently  affixed  to  the  building,  as 
the  i^rocuring  of  the  materials  and  the  working  of  them  uj)  for  the  finish- 
ing of  the  building  are  fairly  to  be  presumed  as  the  inducements  to  the 
advances  made  by  the  plaintiff. 

By  the  court.  Savage,  C.  J.  By  the  contract,  the  defendant  was  to 
procure  the  materials  and  build  the  house  for  the  plaintiff.  The  mate- 
rials were  purchased  by  the  defendant,  were  his  own,  and  at  his  risk. 
The  fact  that  such  materials  were  intended  for  the  plaintiff's  house  did 
not  change  the  property.  Had  the  defendant  acted  as  the  i:)laintLff'8 
agent  in  purchasing  the  materials,  then  indeed  the  pi'operty  would  have 
been  the  plaintiff's.  The  contract,  however,  does  not  give  counte- 
nance to  any  such  idea,  nor  Avas  such  a  construction  contended  for. 
The  judge  at  the  circuit  held  that  the  proj^erty  was  vested  in  the  plain- 
tiff by  the  act  of  the  defendant  in  j^urchasing  it,  intending  to  work  it 
into  the  jjlaintiff's  house.  In  this  the  judge  certainly  erred.  When 
the  defendant  purchased  the  property,  it  became  his  own  ;  he  might  sell 
it  again,  and  purchase  other  materials  to  use  in  the  2)laintitF's  house; 
and  if  he  23rocured  such  as  the  contract  required,  the  plaintiff  could  not 
complain.  Suppose  he  had  purchased  })lank  which  were  rotten  and 
totally  unfit  for  the  use,  but  still  intending  them  for  the  plaintiff's 
house,  the  plaintiff  would  not  be  bound  to  receive  them.  Or  suppose 
the  plank  were  purchased  in  Troy  or  Albany,  or  at  the  mill  where 
manufactured,  and  before  they  were  removed  a  fire  had  destroyed  them, 
would  the  plaintiff  say  the  loss  was  his?  If  the  property  was  ever  in 
the  defendant,  when  was  it  changed  ?  As  personal  property,  clearly  it 
did  not  pass  until  delivery,  and  there  is  no  evidence  in  the  case  of  a 
delivery  by  the  defendant,  or  the  receipt  of  it  by  the  plaintiff.  It  was 
not  intended  by  the  contract  that  it  should  pass  as  personal  projicrty; 
it  was  to  become  the  property  of  the  })laintiff  when  it  was  worked  into 
his  house,  and  not  before.  The  mere  act  of  bringing  the  plank  upon 
the  plaintiff's  lot,  for  the  purpose  of  working  it  into  columns,  did  not 
change  the  j^roperty ;  nor  did  the  act  of  working  the  plank  into  pieces 
to  put  up  have  that  effect,  for  we  see  the  same  defendant,  at  the  same 
time  and  place,  working  up  other  plank  of  the  same  lot  into  materials 
for  columns  for  Earfs  house.  If  the  act  of  working  the  plank  in  the 
plaintiff's  house  made  them  his  property,  then  he  owned  the  whole ; 
but  that  is  not  pretended.  If  the  working  them  with  intent  to  put 
them  up  in  the  plaintiff's  house  made  them  his,  then  the  intent  changed 


888  JOHNSON    V.    HUNT.  [CHAP.  II. 

the  property,  without  any  act  by  either  of  the  contracting  parties.  That 
would  be  a  very  unsafe  rule  of  property.  The  property  of  one  man  does 
not  become  the  property  of  another,  unless  by  some  act  indicating  a 
delivery  by  one  and  an  acceptance  by  the  other.  Had  the  property  in 
question  been  burned  when  in  Burrow's  store,  and  had  the  defendant 
been  perfectly  solvent,  I  presume  the  plaintiif  Avould  not  have  consid- 
ered the  loss  his  own ;  surely  the  law  would  not  so  have  adjudged  it. 
Where  any  thing  remains  to  be  done  by  the  vendor  before  the  article 
is  to  be  delivered,  the  right  of  property  does  not  pass.  7  Wendell,  406, 
and  cases  there  cited.  Here  the  columns  were  to  be  put  together 
and  erected  before  they  became  the  plaintiif's.  In  the  case  of 
Mucklow  V.  Mangles,  1  Taunt.  319,  a  boat-builder  contracted  to  build 
a  barge  for  one  Pocock,  and  received  payment  in  advance.  He 
finished  the  barge  and  painted  Pocock'a  name  on  the  stern;  but 
before  delivery  it  was  levied  on  by  the  sheriff,  under  an  execution 
against  the  boat-builder.  It  was  held  that  the  property  had  not 
passed  to  Pocock.  Heath,  J.,  says  it  comes  within  the  cases  which 
have  been  held  to  be  executory.  He  adds,  "  A  tradesman  often  finishes 
goods  which  he  is  making  in  pursuance  of  an  order  given  by  one  per- 
son, and  sells  them  to  another;  yet  the  person  giving  the  order  could 
not  bring  trover."  The  case  of  Merritt  v.  Johnson,  7  Johns.  R.  473, 
was  a  stronger  case  than  Mucklow  v.  Mangles.  One  Travis  agreed  to 
build  a  sloop  for  E.  Merritt,  and  to  furnish  the  timber  for  tlie  same. 
Travis  partly  finished  the  sloop,  furnishing  the  greater  part  of  the 
materials ;  but  D.  Merritt,  the  plaintiff,  to  whom  the  contract  was  as- 
signed by  E.  Merritt,  also  furnished  part  of  the  materials  and  advanced 
money  to  Travis  on  the  contract.  When  the  vessel  was  about  one-third 
finished,  it  was  levied  on  under  an  execution  against  Travis.  The 
plaintiff  brought  an  action  of  trover  for  the  vessel,  but  the  court  said 
that  his  right  of  action  rested  on  the  contract  with  Travis,  and  that  the 
sloop  did  not  become  his  until  finished  and  delivered.  The  court  take 
notice  of  the  fact  that  the  sloop  was  built  upon  ground  hired  by  Travis ; 
but  had  the  fact  been  different,  I  do  not  see  how  the  result  would  have 
been  varied  under  the  contract  in  that  case,  by  which  Merritt  was  to 
pay  as  the  work  progressed,  leaving  one-third  to  be  paid  when  the 
whole  of  the  Avork  was  finished.  In  this  case  there  could  not  be  a 
formal  delivery  of  the  house  after  it  was  finished ;  the  house,  standing 
on  the  plaintiff's  groimd,  became  his  as  fast  as  the  pai'ts  added  to  it 
became  attached,  so  as  to  become  part  of  the  freehold ;  but  with  that 
difterence,  the  case  of  the  sloop  is  not  distinguishable  in  principle. 
The  slooj)  was  personal  property,  and  therefore  the  property  was  not 
changed  until  delivery.  The  house  in  question  was  real  property,  but 
the  materials  of  which  it  was  composed  were  personal  property,  and 
did  not  pass  to  the  plaintiff  until  delivery,  or  until  they  became  affixed 
to  the  freehold ;  at  the  time  of  the  levy,  they  were  the  property  of 


SECT,  v.]  DEMENT   V.    SMITH.  889 

Hunt,  the  defendant.     The  plaintiff  tlierefore  had  no  title,  and  could 
not  recover  upon  the  evidence  before  the  court. 

jLA    /  A^ew  trial  granted ;  costs  to  abide  the  event. 


Z^^- 


\^ 


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I 


O^^^  *^  <~Z^i^  'Z^^^  t-c^ 


y/      ^^    XL  BEMENT  u.  SMITH.  ^^'^^   /  ^     *-< 


Supreme  Court  op  New  York,  July  Term,  1836. 

[Reported  in  15  Wendell,  493.] 

This  was  an  action  of  assumpsit,  tried  at  the  Seneca  circuit  in 
November,  1834,  before  the  Hon.  Daniel  Moseley,  one  of  the  circuit 
judges. 

In  March,  1834,  the   defendant  employed  the  i)laintiff,  a  carriage 
maker,  to  build  a  sulky  for  him,  to  he  worth  ten  dollars  more  than  a 
sulky  made  for  a  Mr.  Putnam  ;   for  which  he  promised  to  pay  §80, 
part  in  a  note  against  one  Joseph  Bement,  a  brother  of  the  plaintiff> 
for  the  sum  of  ten  or  eleven  dollars,  and  the  residue  in  his  own  note, 
at  six  or  twelve  months,  or  in  the  notes  of  other  persons  as  good  as  his 
own.     In  June,  1834,  the  plaintiff  took  the  sulky  to  the  residence  of 
the  defendant,  and  told  him  that  he  delivered  it  to  him,  and  demanded 
payment,  in  pursuance  of  the  terms  of  the  contract.     The  defendant 
denied  having  agreed  to  receive  the  carriage.    Whereupon  the  plaintiff      /^ 
told  him  he  would  leave  it  with  a  Mr.  De  Wolf,  residing  in  the  neigh-  \m 
borhood;  Avhich  he  accordingly  did,  and  in  July,  1834,  commenced  this       \ 
suit.     It  was  jDroved  that  the  value  of  the  sulky  Avas  880,  and  that  it  \  v^ 
was  worth  810  more  than  Putnam's.     The  declaration  contained  three      vr 
special  counts,  substantially  alike,  setting  forth  the  contract,  alleging       v^ 
pei'formance  on  the  part  of  the  plaintiff,  by  a  delivery  of  the  sulky,     ^  r^ 
and  stating  a  refusal  to  perform,  on  the  part  of  tlie  defendant.     The      x 
declaration  also  contained  a  general  count,  for  work  and  labor,  and  r\        ^ 
goods  sold.     The  judge,  after  denying  a  motion  for  a  nonsuit,  made  on      ^^  C^ 
the  assumed  grounds  of  variance  between   the  declaration  and  proof^ 
charged  the  jury  that  the  tender  of  the  carriage  was  substantially  a 
fulfilment  of  the  contract  on  the  part  of  the  plaintiff,  and  that  he  was 
entitled  to  sustain  his  action  for  the  price  agreed  upon  between  the 
parties.     The  defendant's  counsel  requested  the  judge  to  charge  the 
jury  that  the  measure  of  damages  Avas  not  the  value  of  the  sulky,  but 
only  the  exi)ense  of  taking  it  to  the  residence  of  the  defendant,  delay, 
loss  of  sale,  &c.     The  judge  declined  so  to  charge,  and  reiterated  the 
instruction  that  the  value  of  the  article  was  the  measure  of  damages. 
The  jury  found  for  the  plaintiff,  with  883.126  damages.     The  defendant 


^ 


890  BEMENT    V.    SMITH.  [CHAP.  II. 

moved  for  a  new  trial.     The  cause  was  submitted  on  written  argu- 
ments. 

W.  B.  Smith,  for  the  defendant,  insisted  that  the  plaintiff  ought  to 
have  been  nonsuited,  he  having,  in  each  of  his  special  counts,  alleged  a 
delivery  of  the  carriage,  and  the  proof  showing  a  mere  tender  and 
refusal  to  accept.  It  cannot  be  held  that  there  has  been  a  delivery, 
unless  some  act  be  shown  on  the  part  of  the  purchaser,  recognizing  the 
property  as  his,  after  it  has  existence.  The  plaintiff  should  have  de- 
clared as  for  goods  bargained  and  sold,  framing  his  declaration  specially 
on  the  contract,  for  not  accepting  or  refusing  to  complete  the  bargain. 
7  T.  R  67 ;  Peake's  N.  P.  41 ;  Chitty  on  Contracts,  124 ;  4  Co.  93 ; 
4  Esp.  N.  P.  251.'  A  delivery  cannot  be  presumed,  when  the  presump- 
tion is  rebutted  by  positive  proof  2  Kent's  Comm.  396.  The  plain- 
tiff could  not  recover  under  the  common  count,  the  term  of  credit  not 
having  expired.  1  Chitty's  PI.  380.  The  judge  erred  in  his  instruc- 
tions to  the  jury,  as  to  the  rule  of  damages.  Here  was  not  a  complete 
bargain  and  sale.  The  property  did  not  pass  at  the  time  of  the  con- 
tract, nor  at  the  time  of  tender,  as  the  defendant  refused  to  accept. 
There  was  no  change  of  property,  and  the  plaintiff  was  therefore  enti- 
tled to  recover  only  damages  for  the  breach  of  the  contract,  and  not 
the  value  of  the  carriage.  2  Kent's  Comm.  364 ;  1  Chitty's  PI.  170 ; 
10  Petersdorff's  Abr.  244;  15  id.  194;  Saund.  on  PL  &  Ev.  874; 
2  Comyn  on  Cont.  227. 

0.  11.  Piatt  and  J.  F.  Stevens,  for  plaintiff. 

By  the  court,  Savage,  C.  J.  The  defendant  presents  no  defence 
upon  the  merits.  His  defence  is  entirely  technical,  and  raises  two 
questions:  1.  Whether  the  tender  of  the  sulky  was  equival  nt  to  a 
delivery,  and  sustained  the  averment  in  the  declaration  that  the  sulky 
was  delivered ;  and  2.  Whether  the  rule  of  damages  should  be  the 
value  of  the  sulky,  or  the  particular  damages  to  be  proved,  resulting 
from  the  breach  of  the  contract.  There  is  no  question  raised  here 
upon  the  Statute  of  Frauds.  The  contract  is  therefore  admitted  to  be 
a  valid  one  ;  and  relating  to  something  not  in  solido  at  the  time  of  the 
contract,  there  is  no  question  of  its  validity. 

The  plaintiff  agreed  to  make  and  deliver  the  article  in  question  at  a 
particular  time  and  place,  and  the  defendant  agreed  to  pay  for  it,  on 
delivery,  in  a  particular  manner.  The  plaintiff  made,  and,  as  far  as 
was  in  his  power,  delivered  the  sulky.  He  offered  it  to  the  defendant 
at  the  place  and  within  the  time  agreed  upon.  It  was  not  the  plaintiff's 
fault  that  the  delivery  was  not  complete,  that  was  the  fault  of  the 
defendant.  There  are  many  cases  in  which  an  offer  to  perform  an 
executory  contract  is  tantamount  to  a  performance.  This,  I  apprehend, 
is  one  of  them.  The  case  of  Towers  v.  Osborne,  Strange,  506,  was  like 
this.  The  question  here  presented  was  not  raised,  but  the  defendant 
there  sought  to  screen  himself  under  the  Statute  of  Frauds.     The 


SECT,  v.]  BEMENT   V.    SMITH.  891 

defendant  bespoke  a  chariot,  and  when  it  was  made,  refused  to  take  it; 
so  far  the  cases  are  ])arallel.  In  an  action  for  the  vahie,  it  was  objected 
that  the  contract  was  not  binding,  there  being  no  note  in  writing,  nor 
earnest,  nor  dehvery.  The  objection  was  overruled.  In  tliat  case  the 
action  was  brought  for  the  vahie,  not  for  damages  for  the  breach  of 
contract.  This  case  is  like  it  in  that  particular;  this  action  is  brought 
for  the  value,  that  is,  for  the  price  agreed  on ;  and  it  is  shown  that  the 
sulky  .was  of  that  value.  The  case  of  Crookshank  v.  Burrell,  18 
Johns.  K.  58,  was  an  action  in  which  the  plaintiff  declared  against  the 
defendant  on  a  contract  whereby  the  plaintifl"  was  to  make  the  wood- 
work of  a  wagon,  for  which  the  defendant  was  to  pay  in  lambs.  The 
defendant  was  to  come  for  the  wagon.  Tlie  question  was  upon  the 
Statute  of  Frauds.  Spencer,  C.  J.,  states  what  had  been  held  in  some 
of  the  English  cases,  4  Burr.  2101,  and  7  T.  R.  14,  that  a  distinction 
existed  between  a  contract  to  sell  goods  then  in  existence,  and  an 
agreement  for  a  thing  not  yet  made.  The  latter  is  not  a  contract  for 
the  sale  and  purchase  of  goods,  but  a  contract  for  work  and  labor 
merely.  The  case  of  Crookshank  v.  Burrell  is  much  like  this,  with  this 
exception  :  there  the  purchaser  was  to  send  for  the  wagon ;  here  the 
manufacturer  was  to  take  it  to  him.  There  it  was  held  that  the  manu- 
facturer was  entitled  to  recover,  on  proving  that  he  had  made  the 
wagon  according  to  the  contract :  here  it  is  proved  that  the  sulky  was 
made,  and  taken  to  the  place  of  delivery  according  to  contract.  The 
merits  of  the  two  cases  are  the  same.  It  seems  to  be  conceded  that  an 
averment  of  a  tender  of  the  sulky  by  the  plaintiiF,  and  a  refusal  of  the 
defendant  to  receive  it,  would  have  been  sufficient ;  and  if  so,  it  seems 
rather  technical  to  turn  the  plaintiff  out  of  court,  when  he  has  proved 
all  that  would  have  been  required  of  him  to  sustain  his  action.  The 
plaintiff,  in  his  special  counts,  does  not  declare  for  the  sale  and  deliv- 
ery, but  upon  the  special  contract ;  and  herein  this  case  is  distinguish- 
able from  several  cases  cited  on  the  part  of  the  defendant,  and  shows 
that  it  was  not  necessary  to  have  declared  for  goods  bargained  and 
sold.  It  seems  to  me,  therefore,  that  the  judge  was  right  in  refusing 
the  nonsuit,  and  in  holding  that  the  evidence  showed  substantially  a 
fulfilment  of  the  contract.  The  variance  as  to  the  amount  of  Josej^h 
Bement's  note,  I  think,  is  immaterial ;  but  if  otherwise,  it  may  be 
amended.  The  alleged  variance  as  to  the  price  of  the  sulky  is  not 
sustained  by  the  facts  of  the  case. 

The  only  remaining  question,  therefoi*e,  is  as  to  the  damages  which 
the  plaintiff  Avas  entitled  to  recover.  It  is  true  that  the  plaintiff  does 
not  I'ecover  directly  as  for  goods  sold ;  but  in  the  case  of  Towers  v. 
Osborne  the  ])laintiff  recovered  the  value  of  the  chariot,  and  in  Crook- 
shank V.  Burrell  the  recovery  was  for  the  value  of  the  wagon.  The 
amount  of  damages  which  ought  to  be  recovered  was  not  the  question 
before  the  court  in  either  of  those  cases;  but  if  the  value  of  the  article 


892  BEMENT   V.    SMITH.  [CHAP.  II. 

was  not  the  true  measure,  we  may  infer  that  the  point  would  have  been 
raised.  Upon  principle,  I  may  ask,  what  should  be  the  rule  ?  A  me- 
chanic makes  an  article  to  order,  and  the  customer  refuses  to  receive  it : 
is  it  not  right  and  just  that  the  mechanic  should  be  paid  the  price 
agreed  upon,  and  the  customer  left  to  dispose  of  the  article  as  he  may  ? 
A  contrary  rule  might  be  found  a  great  embarrassment  to  trade.  The 
mechanic  or  merchant,  upon  a  valid  contract  of  sale,  may,  after  refusal 
to  receive,  sell  the  article  to  another,  and  sue  for  the  diflerence  between 
the  contract  price  and  the  actual  sale.  Sands  and  Crump  v.  Taylor  and 
Lovett,  5  Johns.  R.  395, 410, 411 ;  1  Salkeld,  113 ;  6  Modern,  162.  In  the 
first  of  these  cases,  the  plaintiffs  sold  the  defendants  a  cargo  of  wheat. 
The  defendants  received  part,  but  refused  to  receive  the  remainder. 
The  plaintiffs  tendered  the  remainder,  and  gave  notice  that  unless  it 
was  received  and  paid  for,  it  would  be  sold  at  auction,  and  the  defend- 
ants held  responsible  for  any  deficiency  in  the  amount  of  sales.  It  was 
held,  upon  this  part  of  the  case,  that  the  subsequent  sale  of  the  residue 
was  not  a  waiver  of  the  contract,  the  vendor  being  at  liberty  to  dispose 
of  it  bond  fide^  in  consequence  of  the  refusal  of  the  purchaser  to  accept 
the  wheat.  This  case  shows  that  where  there  has  been  a  valid  contract 
of  sale,  the  vendor  is  entitled  to  the  full  price,  whether  the  vendee 
receive  the  goods  or  not.  I  cannot  see  why  the  same  principle  is  not 
applicable  in  this  case.  Here  was  a  valid  contract  to  make  and  deliver 
the  sulky.  The  plaintiff  performed  the  contract  on  his  part.  The 
defendant  refused  to  receive  the  sulky.  The  plaintiff  might,  upon 
notice,  have  sold  the  sulky  at  auction,  and  if  it  sold  for  less  than  180, 
the  defendant  must  have  paid  the  balance.  The  reason  given  by  Kent, 
C.  J.,  5  Johns.  R.  411,  is,  that  it  would  be  unreasonable  to  oblige  him 
to  let  the  article  perish  on  his  hands,  and  run  the  risk  of  the  insolvency 
of  the  buyer.  But  if  after  tender  or  notice,  whichever  may  be  neces- 
sary, the  vendor  chooses  to  run  that  risk  and  permit  the  article  to 
perish,  or,  as  in  this  case,  if  he  deposit  it  with  a  third  person  for  the 
use  of  the  vendee,  he  certainly  must  have  a  right  to  do  so,  and  prose- 
cute for  the  whole  price.  Suppose  a  tailor  makes  a  garment,  or  a  shoe- 
maker a  pair  of  shoes,  to  order,  and  performs  his  part  of  the  contract, 
is  he  not  entitled  to  the  price  of  the  article  furnished  ?  I  think  he  is, 
and  that  the  plaintiff  in  tliis  case  Avas  entitled  to  his  verdict. 

The  question  upon  tlie  action  being  j^rematurely  brought  before  the 
expiration  of  the  credit  which  was  to  have  been  given,  cannot  properly 
arise  in  this  case,  as  the  plaintiff  recovers  upon  the  special  contract,  and 
not  upon  a  count  for  goods  sold  and  delivered. 

Nexo  trial  denied. 


ot,    »^ 


SECT,  v.]  DOWNER   V.   THOMPSON. ' '893 


DOWNER  V.  TIIOMPSOK 
Supreme  Court  of  New  York,  October  Term,  1841. 

[Reported  in  2  Hill,  137.] 

Assumpsit,  tried  at  the  Oneida  circuit  on  the  8th  of  October,  1840, 
before  Gridley,  C.  J.  The  dechiration  contained  counts  for  goods 
bargained  and  sold,  and  also  for  goods  sold  and  delivered.  The  facts 
appearing  on  the  trial  were  as  follows :  — 

The  defendant,  who  resided  at  Hastings,  Westchester  county,  on  the 
21st  of  August,  1838,  addressed  an  order  to  the  plaintiff,  who  resided 
at  Chittenango,  Madison  county,  for  250  barrels  of  cement,  to  be  for- 
warded as  soon  as  practicable.  On  the  4th  of  September  following, 
the  plaintiff  shipped  on  board  a  canal  boat  260  barrels,  which  arrived 
at  Hastings  on  the  17th  of  the  same  month,  and  were  offered  to  the 
defendant.  He  objected,  among  other  things,  that  there  were  more 
barrels  than  he  had  ordered,  and  finally  refused  to  receive  any  of  the 
cement.  The  boatmen  having  it  in  charge  proceeded  to  New  York, 
and  there  stored  it. 

The  defendant's  counsel  insisted  at  the  trial  that  the  evidence  did 
not  sustain  either  the  count  for  goods  bargained  and  sold,  or  that  for 
goods  sold  and  delivered.  He  therefore  moved  for  a  nonsuit,  which 
was  granted,  and  the  plaintiff  excej^ted.  The  latter  now  moved  for 
a  new  trial  on  a  bill  of  exceptions. 

W.  McCall  and  S.  Beardsley^  for  plaintiff. 

C.  P.  KirJdand  and  J.  A.  Spencer,  for  defendant. 

By  the  court,  Cowex,  J.  The  difficulty  of  the  plaintiff  lies  in  his 
not  having  numerically  complied  with  the  order,  which  Avas  for  250, 
not  260  barrels.  Had  he  shipped  the  250  barrels,  no  doubt  the  prop- 
erty would  have  passed,  and  the  count  for  goods  sold  and  delivered 
been  well  sustained;  because  a  delivery  to  the  carrier  for  the  account 
and  risk  of  the  consignee,  is  in  law  a  delivery  to  the  latter.  •  Coxe  v. 
Harden,  4  East,  211.  But  neither  count  was  satisfied  by  the  shipment 
or  offer  of  the  250  barrels  from  among  a  larger  number,  the  true 
amount  being  neither  counted  nor  Aveighed  out.  The  property  yet 
remained  to  be  specified  before  the  defendant  could  knoAV  what  to  call 
his  own;  and  it  is  entirely  settled,  that  Avhere  any  act  yet  remains  to 
be  done  by  the  vendor,  such  as  weighing,  measuring,  or  counting  out 
of  a  common  parcel,  no  property  passes.  Short  of  this  there  is  no 
sale,  much  less  a  delivery.  Long  on  Sales,  267  et  seq.,  ed.  of  1839. 
The  excejition  at  page  274,  mentioned  by  the  jjlaintiff's  counsel,  of  a 


894 


ANDREWS   V.    DURANT. 


[chap.  II. 


certain  number  of  dollars  sent  in  a  barrel  among  others  not  intended 
for  the  consignee,  is  a  difterent  case.  It  went  on  the  ground  that  the 
dollars  were  all  of  the  same  value,  which  cannot  be  predicated  of  the 
barrels  in  question.  Beside,  there  is  perhaps  some  difficulty  in  sustain- 
ing the  exception  without  running  foul  of  a  strong  current  of  cases. 

We  think  no  action  will  lie,  unless  it  be  a  special  assumpsit  for  not 
^accepting  the  cement.  J^ew  trial  denied. 


^ 


/         ANDREWS   AND    Others   v.  DURANT   and   Others. 
New  York  Court  of  Appeals,  June  Term,  1854. 

[Reported  in  1  Kernan,  35.] 

Appeal  from  a  judgment  of  the  general  term  of  the  Supreme  Court 
held  in  Albany  county.     The  plaintiiFs  brought  an  action  in  the  nature 
of  trover  for  a  barge  in  an  unfinished  state,  which  they  alleged  the 
defendants  had  converted  to  their  own  use.     The  defendants  denied 
the  allegations  in  the  complaint,  and  set  up  title  to  the  barge  in  them- 
selves.    The  cause  was  tried  before  the  Hon.  M.  Watson,  a  justice  of 
the  Supreme  Court,  in  April,  1850,  without  a  jury.     The  following 
facts  appeared  on  the  trial.     On  the  24th  April,  1849,  the  defendants 
entered  into  a  contract,  in  writing,  with  William  H.  Bridger  &  Co., 
ship-builders,  by  which  the  latter  agreed  "  to  build  "  for  the  defendants, 
for  the  sum  of  15000,  a  barge  of  certain  dimensions  and  with  a  certain 
^  size  and  description  of  timbers,  &c.,  which  were  particularly  specified, 
V  except  the  rail,  which  was  to  be  "  according  to  direction  of  superin- 
^tendent."      The  fui-ther  provisions  of  the    contract  ^vere  as  follo-ws: 
u"  All  the  materials  to  be  furnished  by  the  builder,  and  all  to  be  of  the 
^ first  quality,  and  the  work  subject  to  the  superintendent,  who  shall 
ave  the  jDrivilege  of  rejecting  any  timber  he  may  think  is  not  suitable, 
and  object  to  any  work  not  done  in  a  workmanlike  manner.     The 
model  of  the  boat  to  be  made  like  barge  I.  L.  Brown.     The  boat  to  be 
furnished  complete,  and  ready  for  the  ship-chandler  according  to  the 
above  specification  on  the  first  day  of  August  next,  and  delivered  to 
Dui-ant,  Lathrop,  &  Co.,  the  defendants,  at  Kingston.     In  case  the 
barge  is  not  complete  by  the  time  specified  above,  or  within  ten  days 
of  that  time,  W.  H.  Bridger  &  Co.  agree  to  forfeit  tw^o  hundred  and 
fifty  dollars  for  every  week's  delay.    Payment:  The  said  five  thousand 
dollars  to  be  paid  as  follows;  viz.,  one  thousand  dollars  when  keel  is 
ialH,  one   thousand  dollars  when  frame  is  up,  one  thousand   dollars 
when  planked  and  calked,  and  two  thousand  dollars  when  completed 
and  delivered." 


SECT,  v.]  ANDREWS   V.    DURANT.  895 

Bridger  &  Co.  proceeiled  in  the  construction  of  the  barge  until  tlic 
4th  dny  of  Auoust,  1849,  wlien,  having  stojiped  payment,  tliey  assigned 
the  unfinished  vessel  with  their  other  proi)eity,  to  the  2)laintifl[s  as  trus^ 
tees  for  the  benefit  of  their  creditors,  accordinjx  to  certain  classes  of 
preference.  The  barge  had  been  so  far  advanced  in  its  construction  as 
to  be  planked,  and  the_defGudaats  had  paid  the  builders  §3000  accord- 
ing to  the  contract,  that  is  to  say,  ^1000  at  eacli  of  the  three  separate 
stages  of  the  Avork  first  referred  to  in  the  contract,  Avhen  the  builders 
failed.  The  defendants,  having  obtained  possession  of  the  barge,  ])ro- 
posed  to  the  plaintiffs  to  finish  it,  and  offered  in  that  event  to  pay  them 
the  balance  of  the  contract  price,  but  this  was  declined;  and  the  i)lain- 
tiffs  demanded  the  barge  of  the  defendants,  who  would  not  give  it  up. 
The  defendants  then  ])rocured  it  to  be  completed  on  their  own  account, 
at  an  expense  of  $700.  The  person  who  acted  as  superintendent  in 
the  building  of  the  barge  was  sworn,  and  testified  that  he  was  em- 
ployed exclusively  by  the  defendants  and  was  paid  by  them. 

Judgment  was  rendered  by  Justice  Watson  in  favor  of  the  defend- 
ants, and  the  plaintiffs  excepted:  it  was  affirmed  at  the  general  term. 
The  plaintiffs  appealed  to  this  court. 

JSf.  Hill,  tfun.,  for  the  appellants.  I.  The  promise  of  Bridger  & 
Bishop  was  to  build  and  complete  the  barge,  and  deliver  it  at  Kings- 
ton on  a  future  day,  they  to  find  all  the  materials.  It  was  therefore 
not  a  contract  of  sale,  and  no  title  vested  in  the  defendants.  Merritt 
V.  Johnson,  7  John.  478 ;  Gregory  v.  Stryker,  2  Denio,  628 ;  Johnson 
V.  Hunt,  11  Wend.  139.  1.  Such  a  contract,  until  entirely  executed, 
has  uniformly  been  treated  in  this  country  as  one  for  work  and  mate- 
rials, not  of  sale ;  and  the  same  doctrine  j^revailed  in  England  until 
after  1822.  See  cases  above  cited,  and  also  Mucklow  v.  Mano-les,  1 
Taunt.  318;  Towers  v.  Osborne,  1  Strange,  506;  Groves  v.  Buck,  3 
Maule  &  Selw.  178 ;  Lawrence,  J.,  2  Taunt.  42 ;  Hight  v.  Ripley,  19 
Maine,  137  ;  Crookshank  v.  Burrill,  18  John.  58 ;  Sewall  v.  Fitch,  8 
Cowen,  215;  Mixer  v.  Ilowarth,  21  Pick.  205;  Spencer  v.  Cone,  1 
Mete.  283.  2.  The  idea  that  a  provision  in  the  contract  for  advances 
by  the  employer,  at  specific  stages  of  the  Avork,  changes  it  into  a  con- 
tract of  sale,  is  directly  at  war  with  the  law  as  settled  here  for  nearly 
half  a  century.  Merritt  v.  Johnson,  7  John.  473 ;  Gregory  v.  Stryker, 
2  Denio,  628 ;  Johnson  v.  Hunt,  11  Wend.  139.  3.  Nor  is  it  pretended 
that  the  provision  as  to  a  superintendent  can  have  any  such  effect,  the 
intent  of  it  being  merely  to  prevent  disputes,  and  avoid  the  necessity 
of  specifying  the  work  and  materials  with  more  minuteness.  15  Eng. 
Com.  Law,  218.  4.  So  of  the  circumstance  that  the  employer  cannot  be 
obliged  to  accept  any  other  vessel  than  the  one  built  of  the  specific 
materials  ;  this  being  equally  true  of  Merritt  v.  Johnson,  where  both 
parties  contributed  work  and  materials.  7  John.  473,  4,  5 ;  11  Wend. 
139,  Savage,  C.  J.;  Blackburn  on  Sale,  158,  9,  160;  21  Pick.  205. 


896  ANDREWS   V.    DURANT.  [CHAP.  II. 

II.  The  first  departure  from  the  intelligible  rule  established  by  the 
above  decisions  was  suggested  in  Woods  v.  Russell,  5  Barn,  &  Aid. 
942 ;  and  neither  the  dicta  of  that  case,  nor  the  decision  Avhich  adopted 
them,  should  control  the  present,  for  the  following  reasons  (see  5 
Barn.  &  Aid.  946,  7,  8 ;  31  Eng.  Cora.  Law  R.  112) :  1.  These  dicta 
were  not  only  without  precedent  at  the  time,  but  against  it,  and  were 
adopted  with  manifest  reluctance;  the  court  acknowledging  its  ina- 
bility to  reconcile  them  with  established  principles.  Clarke  v.  Spence, 
31  Eng.  Com.  Law  R.  107,  111  to  114.  2.  They  frustrate  the  more 
obvious  intent  of  the  parties  as  evinced  by  the  terms  of  the  contract, 
that  being  for  building  a  vessel,  to  be  delivered  complete,  at  a  fixed 
time  and  place;  not  for  transferring  parts  of  it  before.  31  Eng.  Com. 
Law  R.  112,  113,  114.  3.  They  separate  the  visible  possession  from 
the  ownership,  Avhich  is  contrary  to  the  policy  of  the  law,  as  it  misleads 
those  supplying  materials  and  labor  on  credit,  as  well  as  others.  7 
Durnf  &  East,  233,  Kenyon,  C.  J. ;  9  John.  243,  Kent,  C.  J.  4.  The 
very  reason  and  policy  on  which  they  were  adopted  in  England,  i.  e. 
that  they  "  had  probably  been  acted  on  since  by  persons  engaged  in 
ship-building,"  should  insure  their  rejection  here.  31  Eng.  Com.  Law 
R.  114;  Merritt  v.  Johnson,  7  John.  473  ;  Johnson  v.  Hunt,  11  Wend. 
139 ;  Gregory  v.  Stryker,  2  Denio,  628  ;  23  Wend.  340,  Cowen,  J.  5. 
They  rest  upon  no  intelligible  or  satisfactory  foundation,  at  least  none 
which  can  be  maintained  without  overruling  the  principle  of  Johnson 
V.  Merritt,  and  the  cases  which  have  followed  it.  15  Eng.  Com.  Law 
R.  218  ;  Co.  Litt.  379  b.  6.  This  innovation  in  England  resulted  in 
a  confusion  of  rights  and  in  raising  various  perplexing  questions,  which 
have  not  yet  been  solved  by  the  courts.  31  Eng.  Com.  Law  R.  110, 
note. 

III.  The  parties  are  presumed  to  have  contracted,  in  reference  to 
the  well-known  general  rule  established  by  Merritt  v.  Johnson,  and 
there  is  no  probability  that  they  meant  to  adopt  the  exception  since 
engrafted  on  it  in  England.  2  How.  R.  612,  Baldwin,  J. ;  Cowen  & 
Hill's  Notes,  1456. 

S.  H.  Hammond^  for  the  respondents.  I.  We  insist  that  the  barge 
was  the  property  of  the  respondents,  from  the  time  the  keel  was  laid, 
and  approved  by  the  superintendent,  and  the  first  payment  was  made. 

1.  Because  upon  no  other  principle  can  exact  and  equal  justice  be 
done  to  all  parties.  The  purchaser  inspects  through  his  superintendent 
and  receives  the  property  in  its  then  state,  and  pays  according  to  the 
contract,  for  the  particular  thing  thus  inspected  and  approved,  and  is 
protected  in  his  payment  by  his  title  to  the  specific  thing  for  which  he 
pays.  The  builder  is  protected  by  his  lien  upon  the  property,  which 
secures  him  the  payment  of  the  future  instalments  as  they  become  due. 

2.  The  respondents  contracted  for  a  particular  and  specific  thing,  and 
not  for  a  barge  answering  a  general  or  particular  description.     They 


SECT,   v.]  ANDREWS   V.    DURANT.  897 

paid  their  money,  not  for  a  barge,  but  for  that  specific  barge.  At  each 
stage  of  the  work,  there  was  a  j^ractical  delivery  to,  and  acceptance 
of  it  by  tlie  purchaser.  When  the  keel  was  laid,  it  was  tendered  as  a 
finished  keel,  was  accepted  and  paid  for.  When  the  frame  was  up,  it 
was  tendered  as  a  finished  frame,  was  accepted  and  paid  for.  When 
it  was  "  planked  and  ceiled,"  it  was  again  tendered  as  the  frame  of 
that  same  barge,  planked  and  ceiled,  was  inspected,  accepted  and  paid 
for.  This  view  of  the  matter  is  in  entire  accordance  even  with  the 
authorities  cited  by  the  learned  counsel  for  the  appellants,  and  is 
entirely  consistent  with  the  theory  of  the  law,  as  he  claims  it  to  be. 
3.  This  very  identical  question  is  as  clearly  settled  by  authority  in 
favor  of  the  respondents  as  any  question  ever  was  or  ever  can  be. 
Story  on  Sales,  p.  254-5,  §§  315,  316;  Chit,  on  Cont.  5th  Amcr.  from 
3d  Lond.  ed.  378-9 ;  Long  on  Sales,  288 ;  Woods  v.  Russell,  5  Barn. 
&  Aid.  942 ;  Clarke  v.  Spence,  4  Ad.  &  El.  448  ;  Abbott  on  Ship.  5th 
Am.  ed.  4,  5 ;  Maine  Sup.  Court,  Law  Reg.  vol.  1,  No.  8,  p.  434 ; 
Wilkinson's  Law  of  Shipping,  p.  27  et  seq.;  Faculties'  Decisions  of 
the  Court  of  Sessions  in  Scotland,  vol.  9,  p.  446.  The  case  of  Woods  v. 
Russell,  and  that  of  Clarke  v.  Spence,  have  been  frequently  referred  to 
by  the  English  Courts  with  approbation,  and  as  settling  the  law  on 
the  precise  question  involved  in  the  case.  2  Mees.  &  Welsh.  602.  The 
principle  of  those  cases,  as  we  have  already  shown,  is  recognized  by 
every  P^nglish  and  American  elementary  writer  as  the  fixed  law,  and 
there  is  no  case  to  be  found,  either  in  England  or  in  this  country,  in 
which  the  court  has  overruled  or  questioned  its  soundness. 

II.  The  cases  cited  by  the  appellant  do  not  affect  the  question  now 
bfefore  the  court,  because  in  none  of  them  was  the  price  payable  by 
instalments  at  particular  stages  of  the  work,  nor  was  the  thing  to  be 
made  built  or  to  be  built  under  a  superintendent  employed  and  paid 
by  the  purchaser. 

These  cases  affirm  a  general  ])rinciple  which  we  do  not  deny  or  seek 
to  evade,  a  principle  moreover  which  does  not  conflict  at  all  with  our 
position. 

Denio,  J.  In  general  a  contract  for  the  building  of  a  vessel  or  other 
thing  not  yet  m  esse  does  not  vest  any  property  in  the  party  for  whom 
it  is  agreed  to  be  constructed  during  the  progress  of  the  work,  nor 
until  it  is  finished  and  delivered,  or  at  least  ready  for  delivery  and 
approved  "by  such  party.  All  the  authoritie>;  aLiixe  in  this.  Towers  v. 
Osborne,  1  Stra.  506;  Mucklow  v.  Mangles,  1  Taunt.  318;  Johnson 
V.  Hunt,  11  Wend.  139;  Crookshank  u.  Burrill,  18  John.  58;  Sewall 
V.  Fitch,  8  Cow.  215;  Mixer  y.  Ilowarth,  21  Pick.  205.  And  the 
law  is  the  same  though  it  be  agreed  that  payment  shall  be  made 
to  the  builder  during  the  progress  of  the  Avork,  and  such  payments 
are  made  accordingly.  In  Mucklow  v.  Mangles,  which  arose  out 
of  a  contract   for   building   a   barge,   the  whole  price   was   paid   in 


898 


ANDREWS   V.    DURANT. 


[chap.  II. 


advance,  the  vessel  was  built,  and  the  name  of  the  person  who  con- 
tracted for  it  was  painted  on  the  stern,  yet  it  was  held  that  the  title 
remained  in  the  builder.     In  Merritt  v.  Johnson,  7  John.  473,  where  a 
sloop  was  agreed  to  be  built  and  one-third  of  the  price  was  to  be  paid 
when  one-third  of  the  work  was  done,  two-thirds  when  two-thirds 
were  done,  and  the  balance  when  it  was  completed,  and  before  it  was 
finished  it  Avas  sold  on  execution  against  the  builder  after  more  than  a 
y\  third  had  been  done  and  more  than  that  proportion  of  the  price  had 
A//<  A>een  paid,  the  court  decided  that  the  vessel  was  the  property  of  the 
,iy    ^builder,  and  not  of  the  person  who  engaged  it  to  be  constructed. 

Where  during  the  course  of  the  transaction  the  vessel  or  other  thing 
agreed  to  be  built  is  identified  and  appropriated  so  that  the  mechanic 
would  be  bound  to  complete  and  deliver  that  particular  thing,  and 
could  not  without  violating  his  contract  substitute   another  similar 

/article  though  otherwise  corresponding  with  the  agreement,  there 
-  ,y  Iwould  seem  to  be  more  reason  for  holding  that  the  property  was  trans- 
)  Vferred ;  still  it  has  never  been  held  that  this  was  enough  to  pass  the 
1/  /lA^  title.  In  Laidler  v.  Burlinson,  2  Mees.  &  Welsh.  602,  the  vessel  was 
about  one-third  built  when  the  contract  was  made.  The  builder  and 
owners  agreed  to  finish  that  j^articular  vessel  in  a  manner  specially 
agreed  upon  for  a  price  which  was  the  equivalent  for  the  finished  ves- 
sel. Before  it  was  completed  the  builder  became  bankrupt,  and  the 
possession  passed  into  the  hands  of  his  assignee.  The  Court  of  Ex- 
chequer held  the  true  construction  of  the  contract  to  be  that  the  title 
was  to  pass  when  the  ship  was  completed,  and  not  before.  The  parties 
only  agreed  to  buy  a  particular  shij)  when  complete,  and  although  the 
builder  could  not  comply  with  the  contract  by  delivering  another  ship, 
still  it  was  considered  an  executory  contract  merely.  In  Atkinson  v. 
Bell,  8  Barn.  &  Cress.  277,  the  same  principle  Avas  held  in  respect  to  a 
contract  for  making  sjiinning  machinery,  and  in  Clarke  v.  Spence,  4 
Adolph.  &  El.  448,  which  is  the  case  principally  relied  on  by  the  de- 
fendants, it  was  admitted  by  the  court  that  the  appropriation  of  the 
particular  ship  to  the  contract  then  in  question,  by  the  approval  of 
the  materials  and  labor  by  the  superintendent,  did  not  of  itself  vest 
the  property  in  the  jjurchaser  until  the  whole  thing  contracted  for  had 
been  completed. 

In  the  case  before  us,  it  cannot  be  denied  but  that  the  barge,  as  fast 
as  its  several  parts  were  finished  with  the  ai)proval  of  the  superintend- 
enT^TJecli'iVie  specifically  appropriated  to  the  fulfilment  of  this  contract, 
so  that  Bridgcr  &  Co.  could  not  have  fulfilled  their  agreement  with 
the  defendants  in  any  other  way  than  by  completing  and  delivering 
tHatTdentrcalToat.  This  results  from  the  consideration  that  the  super- 
intendent could  not  be  called  upon  to  inspect  and  approve  of  the  work 
and  materials  of  another  barge,  after  having  performed  that  duty  as  to 
one ;  so  that  the  contract  would  be  broken  up  unless  it  ajjplied  itself 


SECT,  v.]  ANDREWS  V.    DURANT.  899 

to  this  vessel.  But  it  is  clear  that  tliis  circumstance  alone  docs  not 
operate  to  trnns'fer  the  title.  The  precise  "question  in  this  case  is 
whether  the  concurrence  of  both  particulars  —  the  payment  of  parts  of 
the  price  at  specified  stai^es  of  the  work,  and  the  intervention  of  a 
superintendent  to  insj^ect  and  a])})r()\('  (if  tin  w  •  irk  and  materials  — 
produces  a  result  Avhich  neither  of  them  separately  Avould  effect.  It  is 
no  doubt  coniiietent  for  the  parties  to  agree  when  and  upon  Avhat  con- 
ditions the  property  in  the  subject  of  such  a  contract  shall  vest  in  the 
prospective  owner.  The  present  question  is  therefore  simply  one  of 
construction.  The  inquiry  is  Avhether  the  parties  intended  by  the  pro- 
visions which  they  have  inserted  in  their  contract,  that  as  soon  as  the 
first  payment  had  become  payable  and  had  been  paid,  the  projiertv  in 
the  unfinished  barge  should  vest  in  the  defendants,  so  that  thereafter 
it  should  be  at  their  risk  as  to  casualties,  and  be  liable  for  their  debts, 
and  pass  to  their  representatives  in  case  of  their  death.  Such  an  agree- 
ment would  be  lawful  if  made,  and  the  doubt  only  is  whether  the 
parties  haA'e  so  contracted. 

The  courts  in  England,  under  contracts  in  all  material  respects  like 
this,  have  held  that  the  title  passed.  In  Woods  v.  Russell,  5  Barn.  & 
Aid.  942,  the  question  came  before  the  Court  of  King's  Bench,  and 
Abbott,  C.  J.,  distinctly  declared  his  opinion  that  the  payment  of  the 
instalments  under  such  a  contract  vested  the  property  in  the  ship  in 
the  party  for  whom  it  was  to  have  been  constructed.  But  there  was 
another  feature  in  the  case  upon  wdiich  it  w\as  finally  decided.  The 
builder  had  signed  a  certificate  for  the  purpose  of  enabling  the  other 
party  to  procure  the  vessel  to  be  registered  in  his  name,  and  it  Avas  so 
registered  accordingly  Avhile  it  was  yet  unfinished  and  before  the  ques- 
tion arose.  The  court  held  that  the  legal  effect  of  signing  the  certif- 
icate for  the  purpose  of  procuring  the  registry  was,  from  the  time  the 
registry  Avas  complete,  to  vest  the  general  property  in  the  party  con- 
tracting to  have  the  ship  built.  This  case  Avas  decided  in  1822,  and  Avas 
the  first  announcement  of  the  principle  upon  Avhich  the  defendants' 
counsel  rely  in  the  English  courts.  The  case  of  Clarke  v.  Spence  was 
decided  in  18oG.  It  arose  out  of  a  contract  for  building  a  vessel, 
Avhich  contained  both  the  features  of  superintendence  and  of  pavments 
according  to  specific  stages  of  the  work,  as  in  AVoods  v.  Russell,  and  as 
in  the  contract  noAV  before  the  court.  The  Court  of  Kiup's  Bench  Avas 
clearly  of  opinion  that  as  ftist  as  the  diflTerent  parts  of  the  vessel  Avere 
approved  and  added  to  the  fiibric  they  became  appropriated  to  the 
purchaser  by  AV'ay  of  contract,  and  that  Avhen  the  last  of  them  Avere  so 
added,  and  the  vessel  AA^as  thereby  comjjleted,  it  vested  in  the  i»urchaser. 
The  court  conceded  that  by  the  general  rules  of  law,  until  the  last  of 
the  necessary  materials  Avas  added  the  thing  contracted  for  Avas  not  in 
existence ;  and  they  said  they  had  not  been  able  to  find  any  authority 
for  holding  that  Avhile  the  article  did  not  exist  as  a  Avhole  and  Avas  in- 


900  ANDREWS   V.    DURANT.  [CHAP.  II. 

complete,  the  general  property  in  such  parts  of  it  as  had  been  from 
time  to  time  constructed  should  vest  in  the  purchaser,  except  what 
was  said  in  the  case  of  Woods  v.  Russell :  and  that  was  admitted  to 
be  a  dictum  merely,  and  not  the  jDoint  on  which  the  case  was  decided. 
The  court,  however,  decided  uj)on  the  authority  of  that  case,  though 
with  some  hesitation,  as  they  said,  that  the  rights  of  the  parties  in  the 
case  before  it,  after  the  making  of  the  first  payment,  were  the  same  as 
if  so  much  of  the  vessel  as  was  then  consti-ucted  had  originally  be- 
longed to  the  party  contracting  for  its  construction  and  had  been 
delivered  by  him  to  the  builder  to  be  added  to  and  finished ;  and  they 
said  it  would  follow  that  every  plank  and  article  subsequently  added 
would,  as  added,  become  the  property  of  the  party  contracting  with 
the  builder.  The  dictum  in  Woods  v.  Russell  was  incidentally  referred 
to  as  the  law  in  Atkinson  v.  Bell,  8  Barn.  &  Cress.  277,  and  the  doc- 
trine there  stated,  and  confirmed  in  Clarke  v.  Spence,  was  assumed  to 
be  correct  in  Laidler  v.  Burlinson  before  refeiTcd  to.  It  has  also  been 
generally  adopted  by  systematic  writers  in  treatises  published  or  re- 
vised since  the  decision  of  Clarke  v.  Spence,  that  case  and  Woods  v. 
Russell  being  always  referred  to  as  the  authority  on  which  it  rests. 
Story  on  Sales,  §§  315,  316;  Chit,  on  Cont.  378,  9;  Abbott  on  Ship. 
4,  5. 

It  is  scarcely  necessary  to  say  that  the  English  cases  since  the  Rev- 
olution are  not  regarded  as  authority  in  our  courts.  Upon  disputed 
doctrines  of  the  common  law  they  are  entitled  to  respectful  consider- 
ation ;  but  where  the  question  relates  to  the  construction  or  eflect  of  a 
written  contract  they  have  no  greater  Aveight  than  may  be  due  to  the 
reasons  given  in  their  support.  Can  it,  then,  be  fairly  collected  from 
the  provisions  of  this  contract,  that  the  title  to  the  unfinished  barge 
was  to  be  transferred  from  the  builder  to  the  other  party  upon  the 
making  of  the  first  payment,  contrary  to  the  principle  well  settled 
and  generally  understood  that  a  contract  for  the  construction  of  an 
article  not  in  existence  is  executory  until  the  thing  is  finished  and 
ready  for  delivery  ?  In  the  first  place,  I  should  say  that  so  marked  a 
circumstance  Avould  be  stated  in  words  of  unequivocal  import,  and 
would  not  be  left  to  rest  upon  construction,  if  a  change  of  property 
was  really  intended.  The  provision  for  superintendence  by  the  agent 
of  the  intended  owner,  though  it  serves  to  identify  and  appropriate  the 
article  as  soon  as  its  construction  is  commenced,  does  not,  as  we  have 
seen,  work  any  change  of  property.  Such  would  not  ordinarily  be  the 
intention  to  be  deduced  from  such  a  circumstance.  Many  of  the  ma- 
terials of  which  a  vessel  is  comjjosed  are  ultimately  covered  so  as  to 
be  concealed  from  the  eye  when  it  is  finished;  and  as  the  safety  of 
life  and  property  is  concerned  in  the  soundness  and  strength  of  these 
materials,  it  is  but  a  reasonable  precaution  to  be  taken  by  one  who 
engages  a  vessel  to  be  constructed,  to  ascertain  as  the  work  progresses 


i 


SECT,  v.]  ANDREWS   V.    DURANT.  901 

that  every  thing  is  stanch  and  durable  ;  and  such  a  provision,  as  it 
seems  to  me,  does  not  tend  to  show  a  design  that  there  shall  be  a 
change  of  property  as  fast  as  any  materials  or  work  are  inspected  and 
approved.  It  amounts  only  to  an  agreement  that  when  the  whole  is 
completed  the  party  will  receive  it  in  fultilment  of  the  contract.  The 
provision  for  advances  at  particular  stages  of  the  work  is  a  very  usual 
one  where  an  expensive  undertaking  is  contracted  for,  and  it  only 
shows  that  the  party  advancing  is  willing  thus  to  assist  the  artisan 
provided  that  he  can  see  that  the  work  is  going  on  in  good  faith,  so  as 
to  afford  a  reasonable  prospect  that  he  will  realize  the  avails  of  his  ex- 
penditure in  a  reasonable  period.  The  argument  for  the  defendants 
would  be  somewhat  stronger  if  we  could  say  that  the  amount  to  be 
advanced  at  the  several  stages  mentioned  was  understood  by  the  par- 
ties to  be  the  price  or  equivalent  for  the  labor  and  materials  already 
expended.  This  by  no  means  ap])ears,  but  on  the  contrary  there  is 
strong  reason  to  believe  that  in  this  case  a  considerable  portion  of  the 
price  was  to  be  at  all  times  kept  back  in  order  to  secure  the  speedy 
completion  of  the  contract.  When  Bridger  &  Co.  failed  only  83000 
of  the  §5000  had  been  paid,  and  they  would  not  be  entitled  to  any  more 
until  the  barge  was  finished,  and  yet  it  cost  only  6700  to  complete  it. 
This  renders  it  improbable  that  the  parties  could  have  intended  the 
sale  and  purchase  of  so  much  as  Avas  done  at  the  several  stages  of  the 
work  at  which  payments  were  to  be  made,  if  indeed  such  a  contract 
were  not  in  itself  so  much  out  of  the  course  of  the  ordinary  conduct  of 
parties  as  not  to  be  assumed  without  unequivocal  language. 

The  decision  in  Clarke  v.  Spence  is  placed  very  much  upon  the  idea 
that  parties  may  have  contracted  in  reference  to  the  doctrine  an- 
nounced in  Woods  v.  Russell.  That  argument  can  have  no  force  here, 
but  on  the  contrary  the  inference  to  be  drawn  from  our  own  cases,  and 
particularly  from  Merritt  v.  Johnson,  would  be  that  the  title  remained 
in  the  builder  under  such  a  contract  until  the  completion  of  the  vessel. 

The  foregoing  considerations  have  led  me  to  the  conclusion  that  the 
modern  English  rule  is  not  founded  upon  sufficient  reasons,  and  that  it 
ought  not  to  be  followed.  The  judgment  of  the  Supreme  Court  should 
therefore  be  reversed,  and  a  new  trial  ordered. 

Parker,  J.  The  question  we  are  called  upon  to  decide  is,  whether, 
under  the  rules  of  law  applicable  to  the  contract,  the  barge,  at  the 
time  of  the  assignment  to  the  plaintiffs,  belonged  to  Bri^lger  &  Bishop, 
who  constructed  it,  or  to  the  defendants,  who  employed  them  to 
build  it. 

The  general  rule  is,  that  if  a  person  contract  with  another  for  a 
chattel  which  is  not  in  existence  at  the  time  of  the  contract,  though 
he  pay  him  the  wdiole  value  in  advance,  and  the  other  proceeds  to 
execute  the  order,  the  buyer  acquires  no  property  in  the  chattel  till 
it  is  finished  and  delivered  to  him.  The  case  of  Mucklow,  assignee  of 
VOL.  I.  5y 


902  ANDREWS   V.    DURANT.  fCHAP.  II. 

Royland,  v.  Mangles,  decided  in  England  in  1808,  1  Taunt.  318,  recog- 
nized, to  the  fullest  extent,  the  general  rule  I  have  stated.  It  was  an 
action  of  trover  by  the  assignees  of  a  bankrupt  for  a  barge  and  other 
effects.  Royland,  who  was  a  barge  builder,  had  undertaken  to  build 
the  barge  in  question  for  Pocock.  Before  the  work  was  begun,  Po- 
cock  advanced  to  Royland  some  money  on  account,  and  as  it  proceeded 
he  paid  him  more,  to  the  amount  of  £190  in  all,  being  the  full  value  of 
the  barge.  When  it  was  nearly  finished,  Pocock's  name  was  painted 
on  the  stern.  Two  days  after  the  completion  of  the  work,  and  before 
a  commission  of  bankruptcy  had  issued,  the  defendant,  who  was  an 
officer  of  the  sheriff,  took  the  barge  under  an  execution  against  Roy- 
land, the  barge  at  the  time  of  the  levy  not  having  been  delivered  to 
Pocock.  It  was  held  that  the  title  to  the  barge  had  ncA^er  passed 
from  Royl-md  to  Pocock,  and  judgment  was  given  for  the  plaintiff. 
The  correctness  of  this  decision  has  never  been  questioned,  either  in 
England  or  this  country,  but  has  been  repeatedly  followed  in  both.  In 
this  State,  the  more  prominent  cases  are  Merritt  v.  Johnson,  7  John. 
473;  Gregory  v.  Stryker,  2  Denio,  628;  and  Johnson  v.  Hunt,  11 
Wend.  139. 

But  it  is  sought  to  take  this  case  out  of  the  general  rule,  because 
the  work  was  to  be  performed  under  the  direction  of  a  suj^erintendent 
employed  by  the  defendants,  and  was  to  be  paid  for  at  specific  stages 
of  the  Avork.  The  first  of  the  English  cases  relied  on  to  sustain  that 
position,  is  that  of  Woods,  assignee  of  Paton,  v.  Russell,  5  Barn.  &  Aid. 
942,  which  was  decided  in  1822.  Paton,  a  ship-builder,  had  con- 
tracted with  Russell  to  build  a  ship  for  him  and  complete  it  in  April, 
1819  ;  Russell  to  pay  in  four  instalments.  The  first  and  second  instal- 
ments were  duly  paid.  In  March,  1819,  Russell  appointed  a  master, 
who  superintended  the  building.  On  Paton's  signing  the  usual  cer- 
tificate of  her  build,  the  ship  was  registered  in  Russell's  name,  and  on 
that  day  he  paid  Paton  the  third  instalment.  It  was  held  that  the 
general  property  was  vested  in  Russell  from  the  time  the  registry  was 
completed,  but  that  the  plaintiff  had  a  lien  for  the  work  done  after 
payment  of  the  third  instalment.  There  seems  to  me  to  be  enough  in 
that  case  to  sustain  the  judgment,  independent  of  the  circumstances 
relied  upon  by  the  defendants  in  this  action.  The  registry  of  the  ves- 
sel in  the  name  of  Russell  on  the  certificate,  and  by  the  aid  and  pro- 
curement of  Paton,  was  equivalent  to  a  delivery,  and  was  conclusive  to 
show  that  the  parties  to  the  contract  agreed  that  from  that  time  the 
property  belonged  to  Russell. 

In  delivering  the  opinion  of  the  court,  Abbott,  C.  J.  said,  "  It  is 
part  of  the  terms  of  the  contract,  that  given  portions  of  the  price 
should  be  paid  according  to  the  progress  of  the  work ;  pai-t  when  the 
keel  is  laid  and  part  when  they  are  at  the  light  plank.  The  payment 
of  these  instalments  appears  to  us  to  appropriate  specifically  to  the  de- 


SECT,  v.]  ANDREWS   V.    DURANT.  903 

fenclant  the  very  ship  so  in  progress,  and  to  vest  in  the  defendant  a 
property  in  that  ship ;  and  that  as  between  him  and  the  buildei-,  he  is 
entitled  to  insist  upon  the  completion  of  that  very  shi]i,  and  tliat  the 
builder  is  not  entitled  to  require  him  to  accept  any  other.  But  this 
case  does  not  depend  merely  upon  the  payment  of  the  instalments  ; 
so  that  we  are  not  called  upon  to  decide  how  far  that  payment  vests 
the  property  in  the  defendant,  because  here  Paton  signed  the  certifi- 
cate to  enable  the  defendant  to  have  the  ship  registered  in  his  (the 
defendant's)  name,  and  by  that  act  consented,  as  it  seems  to  us,  that 
the  general  property  in  the  ship  should  be  considered  from  that  time 
as  being  in  the  defendant." 

The  decision  in  Woods  v.  Russell  seems  very  improperly  to  have 
been  considered  as  resting  on  the  ground  first  stated  in  the  extract  I 
have  made.  Atkinson  v.  Bell,  8  Barn.  &  Cress.  277;  15  Eng.  Com.  L. 
216.  And  so  far  it  has  evidently  been  looked  upon  with  distrust  and 
followed  with  reluctance  in  the  later  decisions  of  the  English  courts. 

"In  Clarke  et  al.  v.  Spence  et  al.,  4  Adol.  &  Ellis,  448,  31  Eng.  Com, 
L.  107,  the  plaintifi"  contracted  with  a  ship-builder  to  build  him  a  ship 
for  a  certain  sum,  to  be  paid  in  instalments,  as  the  work  proceeded. 
An  agent  of  the  plaintiff  was  to  superintend  the  building.  The  builder 
became  bankrupt  befoi'e  the  ship  was  completed.  Altei'wards  the  as- 
signees completed  the  ship,  and  all  the  instalments  were  paid  or  tendered. 
In  trover,  by  the  plaintifi"  against  the  assignees,  for  the  ship,  it  was 
held  that  on  the  first  instalment  being  paid,  the  property  in  the  por- 
tion then  finislied  became  vested  in  the  plaintifi",  subject  to  the  right  of 
the  builder  to  retain  such  portion  for  the  purpose  of  com})leting  the 
work  and  earning  the  rest  of  the  price,  and  that  each  material,  subse- 
quently added,  became,  as  it  was  added,  the  property  of  the  general 
owner.  This  decision  was  made,  as  was  said  by  Williams,  J.,  who 
delivered  the  judgment  of  the  court,  "with  some  hesitation,"  and  en- 
tirely upon  the  authority  of  the  expression  in  the  opinion  of  the  court 
in  Woods  V.  Russell,  first  above  quoted.  Williams,  J.,  conceded  that 
the  facts  in  the  case  of  Woods  v.  Russell  did  not  make  it  necessary  to 
determine  the  point  whether  the  building  of  the  vessel  under  the 
superintendence  of  a  person  appointed  by  the  pui'chaser,  and  the  pay- 
ment of  instalments  at  particular  stages  of  the  work,  vested  the  gen- 
eral property  in  the  purchaser,  and  added,  "Neither  did  the  decision 
of  the  court  proceed  ultimately  on  any  such  point,  but  on  the  ground 
that  the  vessel  by  virtue  of  the  certificate  of  the  builder  had  been 
registered  in  the  name  of  the  purchaser,  and  that  the  builder  had  by 
his  own  act  declared  the  general  property  to  be  in  the  purchaser." 
And  he  proceeded  in  a  very  full  and  able  opinion  to  show  that  the 
opinion,  thus  extra-judicially  expressed  in  Woods  v.  Russell,  was  in 
conflict  with  well-established  rules  of  law.  Williams,  J.,  said,  "  Until 
the  last  of  the  necessary  materials  be  added,  the  vessel  is  not  com- 


904  ANDREWS    V.    DURANT.  [CHAP.  II. 

plete ;  the  thing  contracted  for  is  not  in  existence  ;  for  the  contract  is 
for  a  complete  vessel,  and  not  for  parts  of  a  vessel ;  and  we  have  not 
been  able  to  find  any  authority  for  saying  that  whilst  the  thing  con- 
tracted for  is  not  in  existence  as  a  whole,  and  is  incomplete,  the  gen- 
eral property  in  such  parts  of  it  as  are  from  time  to  time  constructed 
shall  vest  in  the  purchaser,  except  the  above  passage  in  the  case  of 
Woods  V.  Russell."  And  he  followed  the  authority  of  Woods  v.  Rus- 
sell on  the  ground  that  it  had  been  subsequently  recognized,  and  that 
such  construction  had  probably  been  acted  upon  since  the  decision, 
by  persons  engaged  in  ship-building. 

The  cases  of  Woods  v.  Russell  and  Clarke  v.  Spence  were  recognized 
in  Laidler  v.  Burliuson,  2  Mees.  &  Welsh.  602,  though  they  were  not 
followed,  being  inapplicable  to  the  case  then  before  the  court. 

It  cannot  be  denied  but  the  decision  in  Clarke  v.  Spence  covers  the 
whole  ground  assumed  by  the  defendant's  counsel  in  this  case,  but  it 
has  never  yet  been  followed  in  this  country.  In  Moody  v.  Brown,  34 
Maine  R.  107,  allusion  is  made  to  such  an  exception  to  the  general  rule, 
but  it  was  unnecessarily  made,  inasmuch  as  it  was  adjudged  that  the 
case  did  not  come  w^ithin  such  an  exception.  It  has  also  been  stated 
in  the  elementary  books  as  resting  on  the  English  decisions  I  have 
cited.  Story  on  Sales,  §§  315,  316;  Chitty  on  Cont.  378;  Long  on 
Sales,  288.  I  find  no  adjudged  case  in  which  the  exception  claimed 
has  been  applied  in  this  country,  and  the  case  of  Clarke  v.  Spence,  not 
beino-  authority  of  itself,  ought  not  to  be  followed  here  if  it  is  in  con- 
flict with  well-settled  principles  of  law,  or  inconsistent  with  decisions 
made  in  our  own  State.  We  are  not  placed  in  a  situation  to  feel  any 
of  the  embarrassment  from  a  supposed  precedent  under  which  the 
court  felt  compelled  in  the  case  of  Clarke  v.  Spence  to  make  a  decision 
inconsistent  with  their  own  reasoning  and  against  their  own  good 
judgment.  A  well-established  general  rule,  if  founded  upon  principle, 
should  not  be  invaded  by  an  exception  without  good  reason. 

The  question  is  simply  what  was  the  contract  of  the  parties.  2 
Mees.  &  Welsh.  602.  If  it  was  intended  that  certain  parts  of  the  ves- 
sel should  pass  to  the  defendants,  as  the  work  progressed  and  was  paid 
for  it  was  very  easy  ^br  the  parties  to  have  so  provided  in  the  contract 
in  express  terms.  As  they  did  not  do  this,  we  must  gather  the  intent 
from  the  contract  as  expressed.  It  is  not  a  contract  to  purchase  parts 
of  a  barge,  but  an  entire  vessel ;  and  the  general  rule  that  the  title 
does  not  pass  till  completion  and  delivery,  must  control  the  construc- 
tion unless  a  different  contract  is  to  be  implied  from  the  fact  that  the 
barge  was  built  under  the  superintendence  of  a  person  employed  and 
paid   by  the  defendants,  and  was  paid  for  by  instalments  at  certain 

stages  of  the  work. 

It  cannot  be  claimed  that  the  employment  of  a  superintendent  who 
decided  upon  the  quaUty  of  the  materials  and  approved  the  work, 


SECT,  v.]  ,  ANDREWS   V.    DURANT.  905 

amounted  to  a  delivery  of  the  parts  as  the  work  progressed  ;  but  it  is 
supposed  that  inasmuch  as  it  bound  the  builders  to  deliver  that  par- 
ticular barge  and  took  away  from  tliem  the  right  to  substitute  another 
in  its  place,  it  amounted,  together  Avith  the  payments,  to  a  transfer  of 
the  general  property  to  the  jjurchaser.  The  mere  payment  by  instal- 
ments at  specific  stages  does  not  of  itself  imply  any  thing  further 
towards  a  change  of  title  to  property  than  the  payment  of  instalments 
at  fixed  periods  of  time.  Now,  conceding  that  the  effect  of  both  these 
circumstances  combined  is  to  place  the  builder  in  a  situation  in  which 
he  Avould  be  bound  to  finish  and  deliver  the  s{)ecific  vessel  begun,  it  by 
no  means  follows  that  they  vest  the  title  to  the  vessel  in  the  purchaser 
before  its  completion.  It  becomes,  in  such  case,  simply  a  contract  for 
the  finishing  and  delivery  of  that  particular  vessel ;  and  the  obligations 
upon  the  parties  are  the  same  as  if  the  builder  had  contracted  to  finish 
and  deliver  a  particular  vessel  partly  constructed  at  the  time  of  the 
contract. 

Merritt  v.  Johnson,  7  John.  473,  Avas  a  case  in  which  it  was  adjudged 
that  the  property  to  the  vessel  remained  in  the  builder  until  comple- 
tion and  delivery,  though  some  of  the  materials  employed  had  been 
furnished  by  the  purchaser. 

The  question  of  ownership  by  no  means  depends  upon  the  right  that 
a  particular  article  in  preference  to  another  shall  be  finished  for  the 
purchaser.  In  Merritt  v.  Johnson,  supra,  Travis  agreed  to  build  a 
ship  for  E.  Merritt  and  to  furnish  the  timber  for  the  frame,  and  E. 
Merritt  was  to  pay  in  instalments  and  furnish  the  materials  for  the 
joiner's  Avork.  E.  Merritt  furnished  various  materials  and  advanced 
money  to  Travis  with  which  to  purchase  other  materials,  and  after- 
wards assigned  the  contract  to  D.  Merritt,  who  continued  to  furnish 
materials  and  advance  money  to  Travis  on  the  contract,  until  about 
one-third  the  vess*el  was  finished,  Travis  having  furnished  the  materials 
he  was  bound  to  suj^jdy  under  the  contract,  when  it  was  levied  on 
under  an  execution  against  Travis  and  sold  by  the  sheriff  to  C,  who 
afterwards  completed  the  vessel  and  sold  her  to  Johnson.  An  action 
of  trover  being  brought  by  D.  Merritt  against  Johnson,  it  was  held 
that  the  property  in  the  vessel  was  in  Johnson,  and  that  D.  Merritt 
could  not  have  any  property  in  the  vessel  under  the  contract  until  she 
was  completed  and  delivered  to  him.  This  was  therefore  a  case  where 
the  ownershij)  remained  in  the  builder,  though  he  would  have  no  right 
to  have  substituted  another  vessel  in  its  place,  part  of  the  materials 
having  been  furnished  by  the  purchaser.  It  appeared  in  Merritt  i). 
Johnson  that  the  ship  was  built  upon  ground  hired  by  Travis,  and  in 
this  suit  the  barge  remained  at  the  yard  of  the  builders.  It  is  said, 
however,  in  Johnson  v.  Hunt,  11  Wend.  139,  that  had  the  fact  been 
difierent  in  Merritt  v.  Johnson  it  would  not  have  change<l  the  result. 
See  also  Blackburu  on  Sales,  158 ;  2  Denio,  628 ;  21  Pick.  205. 


906  WILLIAMS    V.    JACKMAN.  ^  [CHAP.  IL 

I  think  the  legal  title  to  the  barge  remained  in  the  builders  at  the 
time  of  their  assignment  to  the  plaintiffs,  and  the  judgment  of  the 
Supreme  Court  should  be  reversed,  and  a  new  trial  ordered. 

Judgment  reversed^  and  new  trial  ordered} 


HENRY   L.  WILLIAMS   and  Another  v.  GEORGE  W.  JACK- 
MAN  AND  Another. 

Supreme  Judicial  Court  of  Massachusetts,  November,  1860. 

[Reported  in  16  Gray,  514.] 

X   Y>>[  I  Action  of  tort  for  the  conversion  of  an  unfinished  ship.     Answer, 

^  \'^  i      property  in  the  defendants  as  assignees  of  Currier  &  Townsend,  in- 

>  %  '  ^  solvent  debtors.  The  case  was  submitted  to  the  judgment  of  the 
\^  ^  "l"^  court,  with  power  to  draw  such  inferences  as  a  jury  might,  upon  an 
\     .^   y\  agreed  statement  of  facts,  in  substance  as  follows:  — 

S»  J  <|  On  the  14th  of  March,  1856,  an  agreement  in  writing  was  made  be- 
i  \  Ni  tween  the  plaintiffs  and  Currier  &  Townsend,  by  which  the  latter 
J  r^  V  ^iiif^ertook  to  build,  finish,  and  complete,  ready  for  sea,  for  the  plaintiffs, 
^  *  \  \i^  first-class  copper-fastened  ship,  to  be  ready  for  sea,  at  a  wharf  in 
\\  ?  4  ^ewburyport,  by  the  1st  of  July,  1856;  the  plaintiffs  agreed  to  pay  to 
T  '^  i  \k  Currier  '&  Townsend,  "  from  time  to  time,  while  said  ship  is  building, 
^  the  sum  of  twenty  to  twenty-five  thousand  dollars,  and  when  the  ship 
A  IS  ready  for  sea,  such  amount  as  shall  make  altogether  the  sura  of  fifty- 
eight  thousand  dollars  ; "  and  it  was  agreed  that  "  no  interest  is  to  be 
charged  on  the  amounts  advanced"  to  Currier  &  Townsend  by  the 

plaintiffs.                                                                               '  ■ 

On  the  22d  of  March,  the  plaintiffs  farther  agreed  in  writing  to  pay  J 

^     ^    Currier  &  Townsend,  "till  the  amount  of  twenty  to  twenty-five  thou-  ^ 
jk     3  ^^   sand  dollars  is  paid  as  per  contract,  one  thousand  dollars  every  week, 

^   \^\^   Saturday." 

>  V^  \\i       The  making  of  the  first  agreement  was  preceded  by  verbal  negotiar- 

^  tions,  in  the  course  of  which  the  plaintiffs  informed  Currier  &  Town- 
send  that  Captain  Israel  P.  Williams  would  superintend  in  their  behalf 
the  building  of  the  ship,  and  Currier  &  Townsend  gave  their  assent  to 
this  arrangement.  Captain  Williams  had  previously  superintended 
tl\e  building  of  another  ship  by  Currier  &  Townsend  for  the  plaintiffs. 
On  the  15th  of  March,  the  plaintiffs  addressed  a  note  to  Currier  & 
Townsend,  stating  that  they  had  employed  Caj^tain  Williams  to  super- 
intend the  building  of  the  ship,  and  requesting  that  he  might  be  con- 
sidered their  agent  in  all  things  pertaining  to  such  superintendence. 
1  Approved  and  followed  in  Green  v.  Hall,  1  Houston  (Del.),  506,  546.  — Ed. 


SECT,  v.]  WILLIAMS    V.    JACKMAN.  907 

This  note  was  delivered  on  the  same  day  by  Captain  Williams  to  Cur- 
rier &  Townsend  at  their  place  of  business.  About  the  same  time, 
Currier  &  Townsend  began  to  build  the  ship,  and  carried  on  the  work 
till  the  9th  of  the  following  May.  Every  day  during  this  time.  Captain 
Williams  Ayas  at  the  ship-yard  where  the  ship  was  building,  giving 
directions,  making  suggestions,  talking  with  Currier  &  Townsend  about 
the  work,  and  devoting  his  whole  time  to  superintending  it;  and  the 
plaintiffs  paid  him  his  exj)enses,  and  three  dollars  a  day  for  his  services. 

The  plaintiffs  paid  three  thousand  dollars  to  Currier  &  Townsend 
on  the  22d  of  March,  and  one  thousand  dollars  on  Saturday  of  every 
week  thereafter,  until  the  work  was  stopped.  This  money  was  paid  on 
one  occasion  by  one  of  the  plaintiffs,  and  on  every  other  occasion  by 
Captain  Williams,  who  called  at  the  plaintiffs'  place  of  business  on 
Saturday  of  every  week  to  receive  it,  and  at  the  same  time  reported 
to  them  the  progress  made  in  the  work.  Currier  &  Townsend  signed 
receipts  for  the  money  as  paid  on  account  of  a  ship  building  by  them 
for  the  plaintiffs. 

On  the  21st  of  May,  Currier  &  Townsend  petitioned  for  the  benefit 
of  the  insolvent  laws,  and,  upon  due  proceedings  had,  the  defendants 
were  chosen  their  assignees,  and  the  shi}>  came  into  their  possession  as 
such.  The  defendants,  upon  notice  of  the  plaintiffs'  claim,  refused  to 
deliver  the  ship  to  them,  and  finished  and  sold  her  for  the  benefit  of 
all  the  creditors. 

/S.  E.  Sewall  and  S.  H.  Phillips^  for  the  i^laintiffs.  It  has  long  been 
settled  law  in  England  and  Scotland,  and  has  been  generally  recog- 
nized in  this  country,  that  the  payment  by  instalments  for  a  ship  built 
under  the  superintendence  of  the  person  for  whom  she  is  built,  makes 
him  the  owner  of  her,  from  the  time  of  the  first  payment.  Woods  v. 
Russell,  5  B.  &  Aid.  942;  Rohde  v.  Thwaites,  6  B.  &  C.  392;  Elliott 
V.  Pybus,  10  Bing.  516 ;  Atkinson  v.  Bell,  8  B.  &  C.  282 ;  Clarke  y. 
Spence,  4  Ad.  &  El.  448 ;  Wood  v.  Bell,  5  El.  &  BI.  772,  and  6  El.  & 
Bl.  355  ;  Laidler  v.  Burlinson,  2  M.  &  W.  602 ;  Moody  v.  Browne,  34 
Maine,  107;  Butterworth  u.  McKinly,  11  Humph.  209;  Abbott  on 
Shipping,  4,  5;  Maude  &  Pollock  on  Shipping,  18,  19;  Blackburn  on 
Sales,  160,  161 ;  Long  on  Sales  (Rand's  ed.),  288 ;  Story  on  Sales, 
§§234,316;  Chit.  Con.  (oth  Amer.  ed.)  378;  Addison  on  Con.  223, 
1034;  2  Parsons  on  Con.  30,  note;  Bell  on  Sales,  17. 

The  intention  of  both  parties  was  to  vest  in  the  plaintiffs  the  title  to 
the  ship  while  building,  and  between  them  no  delivery  or  change  of 
possession  is  necessary.  The  intention  of  the  vendor  to  pass,  and  of 
the  vendee  to  accejjt,  the  title  is  sufficient.  Lanfear  v.  Sumner,  17 
Mass.  IIU;  Damon  v.  Osborn,  1  Pick.  476;  Brown  v.  Bellows,  4  Pick, 
193  ;  Shumway  v.  Rutter,  7  Pick.  58  ;  Ludwig  v.  Fuller,  17  Maine,  162 ; 
The  defendants  as  assignees  can  have  no  greater  riglits  than  Currier  & 
Townsend  had.     Lanfear  v.  Sumner,  17  Mass.  115;    Lempriere  v.  Pas- 


908  WILLIAMS   V.    JACKMAN.  [CHAP.  II. 

ley,  2  T.  R.  490  ;  Mitchell  v.  Winslow,  2  Story,  637.  But  if  delivery 
was  necessary,  the  circumstances  show  a  delivery  to  Captain  Williams, 
as  the  plaintiffs'  agent,  and  the  rest  follows  by  right  of  accession. 
Glover  v.  Austin,  6  Pick.  209 ;  Sumner  v.  Hamlet,  12  Pick.  82. 

In  Mucklow  V.  Mangles,  1  Taunt.  318,  there  was  no  sup^-intendence 
of  the  building  of  the  vessel,  and  nothing  was  done  indicating  accept- 
ance of  the  work ;  and  that  case  was  doubted  by  Park,  J.,  in  Carruthers 
V.  Payne,  5  Bing.  270.  In  Merritt  v.  Jolmson,  7  Johns.  473,  also,  there 
was  no  superintendence.  The  decision  in  Andrews  v.  Durant,  1  Kernan, 
35,  cannot  overbalance  the  authorities  already  cited. 

The  omission,  in  the  original  contract,  of  any  provision  for  superin- 
tendence is  immaterial,  since  the  superintendent  was  appointed  and 
eno-ao-ed  in  his  duties  the  very  day  after  the  date  of  the  contract. 
Wood  V.  Bell,  above  cited.  Nor  is  the  plaintiffs'  title  affected  by  the 
fact  that  the  amount  of  the  weekly  payments  was  not  made  to  depend 
upon  the  progress  of  the  work.  It  is  obvious  that  at  least  one  thou- 
sand dollars  in  value  of  work  and  materials  would  be  put  into  the  ship 
each  week,  and  the  plaintiffs  would  not  be  held  to  make  the  weekly 
payments  agreed  upon,  unless  at  least  equal  amounts  in  labor  and 
materials  had  been  previously  put  into  the  ship. 

J^.  a.  Curtis  and  C.  T.  Btcssell,  for  the  defendants,  cited  also  Baker 
V.  Gray,  17  C.  B.  462 ;  Oldfield  v.  Lowe,  9  B.  &  C.  73 ;  Tripp  v.  Armi- 
tage,  4  M.  &  W.  687 ;  1  Parsons'  Marit.  Law,  74 ;  Decker  v.  Furniss, 
4  Kernan,  611 ;  Low  v.  Austin,  20  N.  Y.  181;  Brown  v.  Morgan,  2 
Bosw.  485 ;  Comfort  v.  Kiersted,  26  Barb.  472 ;  Jql^nson  v.  Hunt,  11 
Wend.  135 ;  Bonsey  v.  Amee,  8  Pick.  236 ;  Sumner  v.  Hamlet,  12  Pick. 
82;  Mixer  V.  Howarth,  21  Pick.  205;  Spencer  v.  Cone,  1  Met.  283; 
Lamb  v.  Crafts,  12  Met.  356 ;  Forsyth  v.  Dickson,  1  Grant,  26 ;  Clemens 
V.  Davis,  7  Barr,  263 ;  Pritchett  v.  Jones,  4  Rawle,  266 ;  U.  S.  St.  1850, 

c.  27,  §1. 

BiGELOW,  C.  J.  Under  a  contract  for  supplying  labor  and  materials 
and  making  a  chattel,  no  property  passes  to  the  vendee  till  the  chattel 
is  completed  and  delivered,  or  ready  to  be  delivered.  This  is  the  gen- 
eral rule  of  law.  It  must  prevail  in  all  cases,  unless  a  contrary  intent 
is  expressed  or  clearly  implied  from  the  terms  of  the  contract. 

In  the  case  at  bar,  no  such  intent  appears.  The  contract  of  the 
builders  was  to  finish  the  vessel,  and  have  her  ready  for  sea  at  a  speci- 
fied place  on  or  before  a  day  certain.  The  vendees  were  to  pay  a  fixed 
sum  when  the  vessel  was  completed  and  ready  for  delivery.  They 
were  also  to  advance  certain  sums,  from  time  to  time,  amounting  to 
less  than  half  the  stipulated  price,  in  anticipation  of  the  completion 
of  the  work,  but  the  sums  so  to  be  advanced  were  not  graduated  or 
measured  by  the  amount  of  work  done  or  of  materials  furnished  or 
the  progress  made  towards  the  final  fulfilment  of  the  contract.  There 
was  no  stipulation  to  pay  instalments  at  certain  specified  successive 


SECT,  v.]  MOODY   V.    BROWN.  909 

stages  of  the  work ;  it  was  a  mere  agreement  to  make  certain  pay- 
ments, by  way  of  advance,  which  were  fixed  upon  arl)itrarily,  without 
reference  to  the  extent  of  the  hibor  and  materials  actually  expended 
and  used  for  the  construction  of  the  vessel  at  the  time  they  were  to  be 
made.  Nor  was  there  any  right  reserved  to  the  vendees  to  control  or 
direct  the  work,  or  to  exercise  any  superintendence  or  control  over  it, 
during  its  progress.  It  is  true  that  the  agent  of  the  vendees  was 
allowed  to  be  present  in  the  ship-yard  Avhere  the  vessel  was  building, 
but  this  was  by  permission  only  granted  by  the  builders.  It  was  no 
part  of  the  original  contract,  and  the  builders  might,  at  any  time,  have 
revoked  this  permission,  Avithout  violating  any  part  of  their  agreement. 
The  case  at  bar  is  clearly  distinguishable  from  the  cases  determined 
by  the  English  courts,  Avhich  have  been  cited  in  the  argument.  To  say 
the  least,  some  of  those  decisions  rest  upon  very  questionable  grounds. 
They  have  been  carefully  reviewed,  and  the  validity  of  the  reasons 
by  which  it  is  attempted  to  vindicate  them  has  been  impugned  by 
approved  text-writers,  and  in  judicial  decisions  by  courts  in  this  coun- 
try. The  case  of  Andrews  v.  Durant,  1  Kernan,  35,  contains  an 
elaborate  discussion  of  all  the  decided  cases,  and  an  ex])osition  of  the 
application  of  the  rule  of  law  to  contracts  for  the  building  of  ships, 
adopted  in  the  State  of  New  York,  and  confirmed  by  subsequent  de- 
cisions. Judgment  for  the  defendants} 

,  ,  '^  MOODY  V.  BROWN.     ''  '^'^ 

•     ^"^        ^    Supreme  Judicial  Court  of  Maine,  1852.    /       ■^'    '   ,  ^  /^ ^ 

^ y       /  {Reported  in  34  Maine  Reports,  107.]  t-^     /  ./^^"^^ 

^-^,^-y^   On  exceptions  from  the  district  court,  ITathaway,  J.  / 

/n*^  Assumpsit,  on  account  for  materials  and  labor  furnished,  and  one  on 
»-^^  an  account  for  articles  sold  and  delivered.  The  account  was  for  stereo- 
l^^^  type  plates,  $18;  alteration  of  same,  $4;  and  some  interest  and  express- 
jf^^vt^ge,  making  in  all  $125.04. 

A  witness  for  the  plaintifi"  testified  that  in  behalf  of  the  plaintiff  he 
presented  the  bill  and  requested  payment,  to  which  the  defendant 
replied  that  he  had  ordered  the  plates,  but  did  not  feel  able  to  take 
them ;  that  there  was  a  mistake  in  them,  which  the  plaintiff  was  to 
correct  at  his  own  expense ;  that  he  afterwards  carried  the  plates  to 
the  store  of  the  defendant,  Avho  refused  to  take  them  ;  that  he  left  them 
there,  against  the  remonstrance  of  the  defendant ;  that  the  defendant 
afterwards  offered  to  pay  $20  for  the  whole  bill ;  that  at  a  still  subse- 

1  See  Briggs  v.  A  Light  Boat,  7  Allen,  287,  292-3,  per  Bigelow,  C.  J.  —Ed. 


910  MOODY   V.    BROWN.  [CHAP.  II. 

quent  period,  the  witness  asked  the  defendant  when  he  would  pay  the 
$20,  who  rephed  that  he  would  do  it  in  a  few  days ;  and  that  the  de- 
fendant afterwards  repeatedly  said  he  would  pay  the  twenty  dollars. 

The  judge  instructed  the  jury,  that,  if  defendant  contracted  for  the 
plates  to  be  made  for  him,  and  refused  to  accept  them  when  made, 
although  he  might  be  liable  to  plaintiff  in  an  action  for  damages  for  not 
fulfilling  his  contract,  yet  he  would  not  be  liable  in  this  action  for  their 
value,  as  for  goods  sold  and"  3eiivered ;  that  if  they  were  left  at  de- 
fendant's store  against  his  consent  and  remonstrance,  such  a  proceeding 
on  the  part  of  the  plaintiff  could  have  no  effect  to  vary  the  liabilities 
of  defendant. 

But  if  afterwards  defendant  offered  to  pay  the  twenty  dollars  in  full 
for  the  bill,  and  if  that  offer  was  accepted,  the  plaintiff  would  be 
entitled  to  recover  the  twenty  dollars  and  interest  thereon  from  the 
time  such  offer  Avas  accepted,  but  that  the  defendant  would  not  be 
bound  by  that  offer,  unless  it  was  accepted. 
J.  E.  Godfrey^  for  plaintiff. 

Where  an  agreement  is  performed  on  one  part,  it  cannot  be  repudi- 
ated on  the  other. 

The  tender  of  the  plates  was  tantamount  to  a  delivery,  and  the  rule 
of  damages  is  the  value  of  the  plates,  for  which  this  action  was  brought. 
The  case  of  Bement  v.  Smith,  15  Wend.  493,  is  in  point,  and  con- 
clusive for  the  plaintiff.  It  is  identical  with  this,  except  that  here  the 
goods  were  not  only  tendered,  but  left  with  the  defendant.  18  Johns. 
58 ;  Strange,  506. 

Simpson^  for  the  defendant. 

The  opinion  of  the  court,  Sheplet,  C.  J.,  Wells,  Rice,  and  Apple- 
ton,  JJ.,  was  drawn  up  by 

Shepley,  C.  J.  There  is  not  a  perfect  agreement  of  the  decided 
cases  upon  the  question  presented  by  the  exceptions. 

The  law  appears  to  be  entirely  settled  in  England  in  accordance  with 
the  instructions.  Atkinson  v.  Bell,  8  B.  &  C.  277 ;  Elliott  v.  Pybus, 
10  Bing.  512 ;  Clarke  v.  Spence,  4  Ad.  &  El.  448. 

The  case  of  Bement  u.  Smith,  15  Wend.  493,  decides  the  law  to  be 
otherwise  in  the  State  of  New  York.  The  case  of  Towers  v.  Osborne, 
Stra.  506,  was  referred  to  as  an  authority  for  it.  The  plaintiff  in  that 
case  does  appear  to  have  recovered  for  the  value  of  a  chariot,  which 
the  defendant  had  refused  to  take.  No  question  appears  to  have  been 
made  respecting  his  right  to  do  so,  if  he  was  entitled  to  maintain  an 
action.  The  only  question  decided  was,  whether  the  case  was  within 
the  Statute  of  Frauds. 

In  the  case  of  Bement  v.  Smith,  C.  J.  Savage  appears  to  have  con- 
sidered the  plaintiff  entitled  upon  principle  to  recover  for  the  value  of 
an  article  manufactured  according  to  order  and  tendered  to  a  customer 
refusing  to  receive  it. 


SECT.  VI.]  WALLET  V.    MONTGOMERY.  911 

This  can  only  be  correct  ujion  the  ground  tliat  by  a  tender  the  prop- 
erty passes  from  the  manufacturer  to  the  customer  against  his  will. 
This  is  not  the  ordinary  eifect  of  a  tender.  If  the  property  does  not 
pass,  and  the  manufacturer  may  commence  an  action  and  recover  for 
its  A'alue,  while  his  action  is  ])ending  it  may  be  seized  and  sold  by  one 
of  his  creditors,  and  his  legal  rights  be  tliereby  varied,  or  he  may 
receive  benefit  of  its  value  twice,  while  the  customer  loses  the 
value. 

The  correct  principle  appears  to  have  been  stated  by  Tindal,  C.  J., 
in  the  case  of  Elliott  v.  Pybus,  that  the  manufacturer's  right  to  recover 
for  the  value  depends  upon  the  question,  whetlier  the  pro]ierty  has 
passed  from  him  to  the  customer.  The  value  should  not  be  recovered  of 
the  customer,  ludess  he  has  become  the  owner  of  the  property,  and  can 
protect  it  against  any  assignee  or  creditor  of  the  manufacturer. 

To  effect  a  change  in  the  property  there  must  be  an  assent  of  both 
parties.  It  is  admitted  that  the  mere  order  given  for  the  manufacture 
of  the  article  does  not  affect  the  title.  It  will  continue  to  be  the  prop- 
erty of  the  manufacturer  until  comi)leted  and  tendered.  There  is  no 
assent  of  the  other  party  to  a  change  of  the  title  exhibited  by  a  tender 
and  refusal.  There  must  be  proof  of  an  acceptance  or  of  acts  or  words 
respecting  it,  from  which  an  acceptance  may  be  inferred,  to  pass  the 
property. 

This  appears  to  be  the  result  of  the  best-considered  cases. 

There  is  a  ])articular  class  of  cases  to  which  this  rule  does  not  apply, 
where  the  customer  employs  a  superintendent  and  pays  for  the  prop- 
erty manuflact)^recU)y  instalments  as  the  work  is  performed. 

'  J^       (jy   \U  i/        ]  Exceptions  oveiruled. 

<^  A'    if. 

"     SECTION     .-. 

ijjippropriation,  conditional  upon  paying  or  securing  the  price. 


WALLEY  V.  MONTGOMERY. 
In  the  King's  Bench,  May  21,  1803. 

[  Reported  in  3  East,  585.] 

In  trover  for  a  cargo  of  timber  of  the  value  of  above  £800  ;  it  appeared 
in  evidence  at  the  trial  before  Lord  Ellcnborough,  C.  J.,  at  the  sittings 
in  London  after  last  term,  that  the  plaintiff,  a  merchant  at  Liverpool, 
o-ave  an  order  for  the  timber  to  Schumann  &  Co.,  merchants,  residing 


912  WALLEY   V.    MONTGOMERY.  [CHAP.  II. 

at  Memel;  in  pursuance  of  which  Schumann  &  Co.  informed  the  plain- 

tiflf  by  letter  of  tlie  1st  of  May,  1802,  that  they  had  chartered  on  his 

account  the  ship  Esther,  Captain  Rose,  of  Liverpool;  and  on  the  15th 

of  May  they  wrote  him  another  letter,  enclosing  him  the  bill  of  lading 

and  invoice  of  the  timber  after  mentioned,  and  saying  that  they  had 

sent  the  charter-party  in  a  letter  which  Captain  Rose  would  deliver, 

and  advising  the  plaintiff  further  that  they  had  drawn  on  him  certain 

bills  at  three  months  for  the  value  of  the  timber.     The  invoice  enclosed 

was  of  this  tenor  :  — 

Memel,  4th  May,  1?02. 

Invoice  of  a  cargo  of  timber  shipped  by  order  and  for  account  and  risk  of  Mr. 
T.  Walley  at  Liverpool,  in  the  Esther,  Captain  Rose. 

And  the  bill  of  lading  was  dated  14th  of  May,  1802,  and  mentioned 
the  shipping  of  the  cargo  in  the  usual  form :  "  to  be  delivered  unto 
order  or  assigns,  he  or  they  paying  freight  for  the  said  goods  accord- 
ing to  charter-party ; "  which  was  signed  by  Rose,  the  captain,  and  in- 
dorsed in   blank   by    Schumann   &    Co.     The   charter-party,   though 
produced,  could  not  be  proved  at  the  trial  for  want  of  the  subscribing 
witness.     Schumann  &  Co.  sent  another  bill  of  lading  of  the  timber  to 
the  defendant  at  the  same  time,  who  appeared  from  the  circumstances 
to  have  acted  as  their  agent,  though  he  did  not  avow  himself  to  be  act- 
ing in  that  character  at  the  time ;  by  virtue  of  which  bill  of  lading  the 
defendant  obtained  the  delivery  of  the  timber  from  the  captain  before 
the  plaintiff  was  apprised  of  the  circumstance,  or  had  made  any  demand 
of  the  same  under  his  own  bill  of  lading :  but  on  the  21st  of  June,  two 
days  after  the  arrival  of  the  timber,  finding  that  the  defendant  had  ob- 
tained possession  of  it,  he  applied  to  him,  offering  to  accept  the  bills 
drawn  on  him  by  Schumann  &  Co.  and  demanding  the  timber,  which 
the  defendant  refused,  unless  the  plaintiff  would  pay  for  it  immediately. 
The  plaintiff,  however,  declined  such  a  mode  of  payment,  insisting  on 
the  mode  stipulated  for  by  Schumann  &  Co.  in  their  letter  to  him,  by 
giving  his  acceptances  at  three  months ;  in  consequence  of  which  the 
defendant  retained  possession,  and  afterwards  sold  the  cargo  under  the 
authority  of  Schumann  &  Co.     Upon  the  refusal  of  the  defendant, 
the  plaintiff  demanded  the  cargo  fi'om  the  captain,  telling  him  that  he 
was  ready  to  perform  'his  part  of  the  contract ;  but  the  captain  said 
that  he  had  before  delivered  it  to  the  defendant,  conceiving  that  he 
acted  by  the  authority  of  the  shippers  :  but  there  was  no  proof  of  any 
tender  of  the  freight  having  been  made  to  the  captain,  for  want  of  which 
the  plaintiff  was  nonsuited. 

Gibbs  and  Park  showed  cause  against  a  rule  for  setting  aside  the 
nonsuit  and  granting  a  new  trial,  and  contended  that  no  legal  title  to 
the  timber  vested  in  the  plaintiff,  so  as  to  enable  him  to  maintain 
trover  for  it.  For,  1st,  the  bill  of  lading  to  the  plaintiff  was  only  con- 
ditional, "he  paying  freight  for  the  said  goods  according  to  charter- 


SECT.  VI.]  WALLEY   V.    MONTGOMERY.  913 

party."  It  Avas  incumbent  on  him  tlicvcfore  to  show  that  he  lia<l  at 
least  tendered  tlie  freiglit,  Avitliuut  wliich  lie  could  not  make  title  to  the 
timber  under  the  bill  of  lading.  But,  •2d,  independently  of  that  ob- 
jection, the  plaintiff  cannot  maintain  trover  against  tliis  defendant,  who 
claims  under  another  bill  of  lading  from  the  shippers  of  equal  validity 
with  that  sent  to  the  plaintiff;  and  the  defendant  having  first  obtained 
the  goods  by  virtue  of  a  lawful  authority,  his  possession  is  lawful,  and 
he  cannot  be  treated  as  a  Avrong-docr.  There  is  no  legal  precedence  of 
one  bill  of  lading  before  another  of  the  same  set,  but  whichever  holder 
first  gets  possession  without  fraud  is  entitled  to  the  priority,  according 
to  Caldwell  v.  Ball.^  Even  considering  the  defendant  as  standing  in 
the  place  of  Schumann,  tfe  Co.,  which  was  not  proved  at  the  trial,  still  the 
contract  betAveen  the  j)laintiff  and  them  Avas  only  executory  ;  for  he  Avas 
not  to  have  the  consignment  but  upon  the  terms  of  accepting  bills  at 
three  months ;  Avhich  was  not  done :  and  though  liis  offering  to  comply 
with  his  part  might  give  him  a  remedy  against  them  for  a  breach  of 
contract  in  not  delivering  the  timber,  yet  their  property  in  it  either  as 
the  original  shippers,  or  by  virtue  of  the  defendant's  jjrior  possession 
under  a  legal  bill  of  lading,  could  not  be  thereby  devested,  or  pass  to 
the  plaintiff,  so  as  to  enable  him  to  maintain  trover. 

Erskine,  Garroio,  and  Scarlett,  contra,  in  answer  to  the  objection 
made  at  the  trial  of  the  plaintiff's  not  having  tendered  the  freight,  said 
that  it  did  not  lie  in  the  mouth  of  the  present  defendant,  hoAvever  it 
might  have  been  urged  by  the  captain  if  the  action  had  been  brought 
against  him.  But  in  truth  the  captain,  who  Avas  examined  as  a  witness 
at  the  trial,  made  no  objection  of  that  kind  Avhen  the  cargo  was  de- 
manded of  him ;  but  said  that  if  the  defendant  had  not  obtained  the 
possession  of  the  cargo,  as  by  the  authority  of  Schumann  &  Co.,  he 
(the  captain)  should  not  have  objected  to  deliver  it  to  the  plaintiff  upon 
the  faith  of  his  afterwards  paying  the  freight.  At  any  rate  the  defend- 
ant cannot  make  the  objection ;  for  supposing  the  plaintifi'  to  have  the 
best  title  to  the  cargo,  the  defendant,  who  is  a  wrong-doer,  cannot  create 
to  himself  a  lien  by  his  OAvn  voluntary  act,  and  make  himself  the  credi- 
tor of  the  plaintiff,  by  j^aying  money  for  his  use  Avithout  his  consent. 
In  Lempriere  v.  Pasley,-  where  goods  Avcre  delivered  to  a  party  claim- 
ing them  Avrongfully,  Avho  paid  freight  and  other  charges  for  them,  it 
was  holden  that  he  could  not  detain  ihem  for  those  expenses  against 
the  rightful  OAvners.  The  captain  may  refuse  to  part  Avith  the  cargo 
till  he  has  received  the  freight ;  but  if  he  let  it  out  of  his  possession  the 
lien  is  gone,  and  he  must  resort  to  his  action;  and  no  third  person  can 
set  up  the  lien  again  in  his  name.  Neither  Avill  any  injustice  be  Avorked 
by  the  recovery  of  the  plaintiff  in  this  respect;  for  if  the  defendant 
have  not  paid  the  freight,  the  captain  Avill  have  his  remedy  against  the 

1  1  Term  Rep.  206.  2  2  Term  Rep.  485. 


914  WALLEY   V.    MONTGOMERY.  [CHAP.  11. 

plaintiff  after  he  is  possessed  of  the  cargo;  and  if  the  defendant  have 
paid  it,  when  he  is  dispossessed  of  the  cargo  by  judgment  of  hiw  the 
payment  will  be  without  consideration,  and  he  may  recover  it  back 
again,  and  then  the  captain  will  be  entitled  to  receive  it  from  the  plain- 
tiff. Then  as  to  the  merits  of  the  case,  the  whole  of  the  defendant's 
argument  tm'ns  on  assuming  that  he  was  an  innocent  holder  of  the  bill 
of  lading  for  a  valuable  consideration,  and  without  notice  of  the  plain- 
tiff's title ;  in  which  case,  if  he  got  possession  of  the  goods  first,  he 
would  be  preferred  to  the  jDlaintiff.  But  it  is  clear  from  the  whole 
transaction  that  the  defendant  acted  as  the  agent  and  instrument  of 
Schumann  &  Co.,  and  therefore  cannot  stand  in  a  better  situation  than 
they.  Then,  as  between  them  and  the  plaintiff,  the  invoice  and  bill  of 
lading  sent  to  the  latter  was  a  complete  transfer  of  the  legal  property 
in  tlie  goods;  for  it  appears  thereby  that  the  goods  were  shij^ped  at  the 
plaintiff's  risk ;  and  he  having  offered  to  do  all  that  he  had  contracted 
for,  namely,  to  give  his  acceptances  at  three  months,  may  consequently 
maintain  trover  for  them.  The  conversion  by  the  defendant  was  not 
the  taking  the  goods  out  of  the  ship,  but  the  subsequent  refusal  by  him 
to  deliver  them  upon  the  plaintiff's  demand,  and  the  actual  sale  of  them 
since.  Considering  the  defendant  as  the  agent  of  Schumann  &  Co., 
nothing  could  justify  him  in  stopping  the  goods  in  transitu  to  the  plain- 
tifi'  but  the  insolvency  of  the  latter,  which  is  not  suggested.  It  m' as  at 
all  events  a  question  for  the  jury  whether  the  defendant  were  not  the 
agent  of  Schumann  &  Co. 

Lord  Ellenboeough,  C.  J.  If  it  were  not  for  one  piece  of  evidence 
which  was  mentioned  late  in  the  cause,  and  to  which  my  attention  was 
not  before  particularly  directed,  I  should  still  be  inclined  to  think  that 
the  plaintiff  was  not  entitled  to  recover ;  aQjd_JJiat  ..j^,.  the^invoice,  by 
A^ich  it  appears  that  the  goods  were  shipped  for  account  and  aT'theT" 
risk  of  the  plaintiff:  that  is  a  material  piece  of  evidence  on  a  question, 
in  w^hom  was"tlie"  property  of  the  goods  at  the  time  of  their  ari'ival 
here;  whether  then  vested  in  the  plaintiff,  subject  to  a  defeasance  in 
case  of  the  non-performance  by  him  of  certain  conditions  on  which  the 
consignment  was  made,  or  whether  to  vest  in  him  at  a  subsequent  time 
on  performance  of  those  conditions  ?  Laying  the  invoice  out  of  the 
question,  I  should  still  have  been  of  the  same  opinion  as  before  upon 
the  letter  of  advice  and  the  bill  of  lading,  that  they  were  conditional. 
Tw©__things  were  required  of  the  plaintiff  to  be  done :  first,  the  accept- 
ance of  the  bills  drawn  on  him  at  three  months,  which  having  been 
^tendei-ecrto  be  performed  on  his  part  must  be  taken  as  done  ;  secondly, 
the  payment  of  the  freight,  which  was  neither  made  nor  tendered.  I 
will  not  consider  whether  the  defendant  were  the  agent  of  Schumann 
&  Co. ;  for  whether  so  or  not,  he  cannot  be  considered  as  a  wrong-doer 
if  he  have  obtained  possession  of  the  cargo  under  a  competent  bill  of 
lading  and  upon  a  perfomiance  of  the  conditions,  which  the  plaintiff 


SECT.  VI.]  WALLEY    V.    MONTGOMERY.  915 

neglected  to  perform.     If,  having  no  notice  of  .a  better  title,  he  were 
not  a  wrong-doer  when  he  received  the  goods,  and  he  has  paid  the 
fi-eight  and  performed  the  conditions  requii-ed  of  him,  the  goods  can- 
not be  taken  out  of  his  hands  without  paying  those  charges.     But    ^ 
taking  him  to  be  the  agent  of  Schumann  &  Co.  and  bound  by  their   .' 
engagement,  yet  he  had  a  right  in  their  name  to  stipulate  for  tlie  per-   , 
formance  of  the  two  conditions  on  which  the  shiiunent  and  delivery  of 
the  goods  were  to  be  made  to  the  plaintiif,  namely,  the  acceptance  of 
the  bills,  and  the  payment  of  the  freight.     And  though  the  defendant 
cannot  object  to  the  non-acceptance  of  the  bills  which  was  offered  to 
be  done  by  the  plaintiff^  yet  he  may  make  his  stand  in  point  of  law  on 
the  non-performance  of  the  other  condition,  without  which  the  ])laintiff 
could  not  be  entitled  to  recover  if  the  question  rested  there.     But  here 
I  think  the  invoice  vested  the  property  in  the  plaintiff;  for  if  there  had 
been  a  loss  at  sea,  that  loss  must  have  been  borne  by  him.     Then  if 
the  property  were  vested  in  him,  subject  only  to  a  defeasance  if  he  did 
not  perform  the  conditions  required  of  him,  I  thiidc  the  plaintiff  would 
be  entitled  to  recover.     The  doctrine  in  the  case  of  Lemj)riere  v.  Pas- 
ley  only  applies  to  the  case  of  a  mere  wrong-doer  possessing  himself  of 
the  goods  of  another  without  authority,  and  paying  freight  for  them : 
but  without  the  invoice  in  this  case  the  act  of  the  defendant  even  as 
the  acent  of  Schumann  &  Co.  would  not  have  been  tortious,  the  plain- 
tiff  not  having  performed  the  conditions  required  by  the  letter  ol  ad- 
vice and  the  bill  of  lading :  the  invoice,  however,  vested  the  property  in 
him. 

Gkose,  J.     In  order  to  sustain  this  action  the  plaintiff  must  prove 
the   property  in  himself,  and  a  conversion   by  the  defendant.     The 
property  of  the  goods  was  once  in  Schumann  &   Co.;   but   by  the 
bill   of  lading   and   invoice   sent   to   the   plaintiff,    and   the   delivery 
to    the    cai)tain,   the    property   passed   from    them    to    the   plaintiff 
to   every   pur])ose   except   as    to   the   right   of    stopping    the   goods 
in  trcmsitu  to  the  vendee :  there  is  no  pretence,  however,  for  saying 
that  they  were  stopped  in  this  case  under  an  exercise  of  that  right. 
For  as  far  as  concerns  the  acceptances  of  the  bills  of  exchange  drawn 
on  him  the  plaintiff  was  ready  and  offered  to  give  them  ;  and  as  to  the 
payment  of  the  freight,  that  was  a  question  between  the  captain  and 
the  plaintiff,  with  which  the  defendant  had  no  right  to  concern  himself. 
The  defendant  must  either  have  been  a  purchaser  for  a  valuable  con- 
sideration, or  the  agent  of  Schumann  ct  Co.     As  a  purchaser  for  a 
valuable  consideration,  the  captain  could  not   be  considered   as  his 
agent  under  the  bill  of  lading,  so  as  to  entitle  him  to  claim  what  was 
due  to  the  captain.     But  in  truth  there  is  no  pretence  for  saying  that 
he  was  a  purchaser  for  a  valuable  consideration.     lie  was  the  mere 
agent  of  Schumann  &  Co.,  out  of  whom  the  property  was  devested  by 
the  bill  of  lading  and  invoice,  and  the  delivery  to  the  captain  for  every 


916  COXE   V.    HARDEN.  [CHAP.  II. 

purpose  except  that  of  stopping  in  transitu.  The  defendant  therefore 
had  no  title.  But  it  is  said  that  he  had  a  right  to  retain  for  the  freight, 
and  that  the  plaintiff  should  have  tendered  it.  The  defendant,  how- 
ever, had  no  right  to  pay  freight  for  the  plaintiff.  No  man  can  make 
another  his  debtor  against  his  Avill.  The  plaintiff  was  bound  to  pay 
the  captain  his  freight,  and  the  captain  was  bound  to  deliver  the  goods 
to  the  plaintiff;  but  there  was  no  duty  in  the  plaintiff  to  pay  the  de- 
fendant the  freight,  because  he  was  a  tortfeasor  :  standing  as  Schumann 
&  Co.,  he  was  detaining  the  goods  from  the  plaintiff  after  having  passed 
the  property  to  him,  wliich  he  must  be  taken  to  have  done  according 
to  Lickbarrow  v.  Mason  ^  and  other  cases.  Then  the  defendant  hav- 
ing no  right  to  receive  the  freight,  the  refusal  by  him  to  deliver  the 
goods  to  the  plaintiff  was  a  conversion. 

Laweence,  J.     After  what  has  been  already  observed,  it  is  not  neces- 
sary to  say  more  than  that  the  proj^erty  was  vested  in  the  plaintiff,  and 
the  defendant  converted  it. 
/^]LiE  Blanc,  J.,  declared  himself  of  tj^e  same  opinion. 

Rule  absolute. 


HARDEN   AND   Others. 


In  the  King's  Bench,  November  11,  1803. 

[Reported  in  4  East,  211.] 

In  trover  to  recover  the  value  of  eighteen  mats  of  flax,  at  the  trial 
before  Lord  Ellenborough,  C.  J.,  at  the  sittings  at  Guildhall  after  last 
Easter  term,  a  verdict  was  found  for  the  plaintiffs  for  £266  7s.,  subject 
to  the  opinion  of  the  court  upon  the  following  case :  — 

In  February,  1802,  the  flax  in  question  was,  by  order  of  Oddy&Co., 
of  London,  purchased  by  Browne  &  Co.,  of  Rotterdam,  and  shipped  by 
them  from  thence  for  Oddy  &  Co.  on  board  the  Vrow  Jannetje,  a  gen- 
eral ship,  for  London.  On  the  12th  of  February,  1802,  Browne  &  Co. 
sent  the  following  letter  to  Oddy  &  Co.,  enclosing  an  invoice  and  a  bill 
of  lading  to  the  order  of  Browne  &  Co.,  the  shippers,  but  which  was  not 
indorsed :  — 

Having  none  of  your  esteemed  favors,  we  have  the  pleasure  of  handing  you  a 
bill  of  lading  and  invoice  of  the  remainder  of  the  flax  we  purchased  for  your  ac- 
count by  order  of  Mr.  Oddy,  consisting  of  eighteen  mats,  which  are  shipped  by  the 
Vrow  Jannetje,  Jacob  Purlevhet,  master,  for  your  place;  the  amount  being 
3376/. :  10,  at  exch.  35/6,  £317  Os.  lOd.  We  have  this  day  drawn  on  you  at 
two  usance,  in  favor  of  S.  E.  Lacon,  Fisher,  &  Co.,  not  doubting  it  will  meet  due 
honor.     We  close  this  account  in  course. 

1  2  Term  Rep.  63. 


SECT.  YI.]  COXE    V.    HARDEN.  917 

For  tlie  amount  of  the  eighteen  mats  of  flax,  Browne  &  Co.  drew  a 
bill  upon  0(l<ly  &  Co.,  which,  owing  to  embarrassment  in  tlieir  circum- 
stances, they  did  not  accept.  Oddy  &  Co.  became  bankrupts  on  the 
23d  of  rel)ruary,  1802,  and  a  few  days  before  delivered  the  aforesaid 
bill  of  lading,  Avithout  indorsement,  to  the  defendants,  on  account  of  a 
debt  antecedently  due  to  them  from  Oddy  &  Co.  The  ship  and  flax 
on  the  29th  of  February,  1802,  arrived  at  London,  and  the  defendants, 
having  paid  the  freight  and  duties,  obtained  possession  of  the  flax  by 
means  of  the  unindorsed  bill  of  lading,  entered  it  at  the  custom-house, 
and  landed  and  housed  it  on  the  4th  of  March  following.  The  said  flax 
was  in  April,  1802,  sold  by  the  brokers  of  the  defendants,  and  an  ac- 
count of  sales  thereof  (dated  6th  of  April,  1802)  was  rendered  by  the 
defendants  to  Oddy  &  Co.,  "the  net  proceeds"  whereof  (amounting  to 
£266  Is.)  were  stated  at  the  foot  of  the  account  to  be  "  carried  for  the 
present  to  the  credit  of  Messrs.  Oddy  &  Co.,  though  now  under  litiga- 
tion." The  captain  of  the  Vrow  Jannetje  signed  three  bills  of  lading 
for  the  said  flax,  all  to  the  order  of  Browne  &  Co.,  the  shippers,  who 
transmitted  one  of  the  bills  of  lading  to  the  plaintiffs  with  an  indorse- 
ment upon  it,  making  the'contents  deliverable  to  them,  for  the  purpose 
of  securing  the  amount  of  their  said  bill  ui)on  Oddy  &  Co.  The  plain- 
tiffs, on  the  6th  of  March,  whilst  the  flax  remained  in  the  warehouses 
and  unsold,  and  also  before  the  commencement  of  this  action,  demanded 
it  under  the  last-mentioned  indorsed  bill  of  lading  from  the  defendants, 
and  forbid  the  sale  of  it;  but  the  defendants  refused  to  deliver,  and 
afterwards  sold  it.  No  tender  of  money  in  respect  of  the  freight  or 
other  charges  paid  by  the  defendants  was  made  to  them.  The  question 
for  the  opinion  of  the  court  was,  whether  under  the  circumstances  above 
stated  the  plaintiffs  were  entitled  to  recover  or  not.  K  the  court  should 
be  of  opinion  that  they  were,  the  verdict  was  to  stand ;  if  not,  a  nonsuit 
to  be  entered. 

Giles.,  for  the  i)laintiflrs.  The  bill  of  lading  transmitted  by  Browne  & 
Co.  to  Oddy  &  Co.,  directing  the  delivery  of  the  goods  to  be  made  to 
the  order  of  Browne  &  Co.,  not  hating  been  indorsed  by  them,  gave  no 
authority  to  the  holder  to  demand  the  goods  of  the  captain,  and  there- 
fore the  defendants  obtained  possession  of  them  wrongfully  in  the  first 
instance,  and  were  at  all  events  guilty  of  a  conversion  by  selling  them 
after  notice  that  they  were  the  property  of  others.  The  bill  of  lading 
being  in  this  form,  the  property  in  the  goods,  which  was  originally  in 
Browne  &  Co.,  the  shippers,  could  only  pass  out  of  them  by  indorse- 
ment. Since  the  case  of  Lickbarrow  v.  Mason,^  a  bill  of  ladinir  of  sroods 
at  sea  is  to  this  and  most  other  purposes  like  a  bill  of  exchange.  The 
captain  cannot  make  a  good  defence  to  an  action  by  the  slii])pers  for 
want  of  such  indorsement ;  and  this  action  is  to  be  considered  as  brought 

1  2  Term  Rep.  63,  and  5  vol.  367  and  683. 
VOL.  I.  59 


918  COXE    V.    HARDEN.  [CHAP.  II. 

by  them,  under  whom  the  plaintiffs  daim  by  means  of  another  bill  of 
lading  regularly  indorsed,  Oddy  &  Co.  had  no  original  title  to  the 
goods,  because  the  transmitting  the  bill  of  lading  unindorsed,  together 
with  the  letter  enclosing  it,  showed  that  it  was  not  the  intention  of  the 
shippers  to  convey  the  property  to  them,  except  conditionally,  in  case 
of  their  acceptance  of  the  bill  drawn  on  them  for  the  amount ;  which 
condition  not  having  been  complied  with,  the  equitable  as  well  as  legal 
property  remained  in  the  shippers :  and  as  Oddy  &  Co.  could  not  have 
lawfully  possessed  themselves  of  the  goods  without  accepting  the  ac- 
companying bill,  they  could  not  convey  any  title  to  the  defendants  by 
handing  over  to  them  an  unindorsed  bill  of  lading,  directing  the  de- 
livery to  be  made  on  account  of  the  shippers. 

Marryat,  contra.  First,  whatever  may  be  the  right  of  Browne  & 
Co.  to  the  goods,  the  plaintiffs  cannot  avail  themselves  of  it  in  this 
action ;  for  trover  can  only  be  maintained  by  one  who  has  a  general  or 
special  property,  which  in  the  latter  case  must  have  been  accompanied 
with  possession ;  whereas  the  j^laintiffs  have  neither,  but  only  a  bare 
authority  to  receive,  no  better  than  that  of  a  broker's  clerk  who  goes 
to  demand  goods.  The  mere  indorsement  of  the  bill  of  lading,  even 
supposing  that  such  an  instrument  were  applicable  to  goods  on  shore, 
without  a  valuable  consideration  paid  for  them,  conveyed  no  property 
to  the  plaintiffs :  at  miost  it  only  gave  them  authority  to  receive  the 
goods  for  the  benefit  of  Browne  &  Co.,  in  whom  the  property  remained. 
The  case  of  Lickbarrow  v.  Mason  only  decided  that  such  indorsement 
for  a  valuable  consideration  transferred  the  property  of  goods  at  sea, 
of  which  no  other  kind  of  delivery  was  capable  of  being  made,  and  to 
which  alone  the  custom  of  merchants  was  deemed  to  extend.  But 
supposing  Browne  &  Co.  were  the  plaintiffs  in  this  action,  they  could 
not  have  recovered  ;  for  by  the  shipping  of  the  goods  by  the  order  and 
at  the  risk  of  Oddy  &  Co.,  and  sending  them  the  invoice,  the  property 
vested  in  them,  without  any  words  of  condition  annexed,  scil.  in  case 
they  honored  the  bill,  but  subject  only  to  Browne  &  Co.'s  riglit  of 
stopping  in  transitu  in  case  of  the  ilhsolvency  of  the  vendees,  or  their 
refusal  to  honor  the  bill  drawn  upon  them  for  the  value ;  but  this  right 
could  only  be  exercised  during  the  transit  of  the  goods,  and  when  that 
was  ended  by  the  arrival,  landing,  and  warehousing  of  the  goods  on 
the  2:>art  of  Oddy  &  Co.,  the  right  of  the  shippers  ceased,  and  the  prop- 
erty vested  absolutely  in  Oddy  &  Co,  or  their  assigns.  Though  in 
Bohtlingk  v.  Ingiis,^  it  was  considered  that  a  claim  by  the  consignees 
upon  the  captain  while  the  goods  were  in  transitu  was  equivalent  to  an 
actual  stoppage  of  them ;  because  the  captain  should  not  decide  the 
property  by  his  own  wrongful  act  in  making  the  delivery  to  the 
assignees  of  the  consignees  after  notice  from  the  consignors  to  with- 

1  3  East,  381. 


SECT.  VI.]  COXE    V.    HARDEN.  919 

hold  the  goods.  It  Avould  be  very  inconvenient  to  commerce  if  it  were 
established  that  the  property  of  goods  shipped  remained  in  the  sliippers 
till  delivery  of  a  bill  of  lading  indorsed ;  for  bills  of  lading  are  seldom 
given  in  the  coasting  trade,  and  in  others  it  often  haijpens  that  they 
are  sent  unindorsed ;  and  the  entries  at  the  custom-house,  which  are 
required  to  be  made  Avithin  a  given  time  under  penalty  of  confiscation, 
must  be  made  by  persons  properly  authorized. 

Giles,  in  reply,  said  that  the  indorsement  of  the  bill  of  lading  trans- 
ferred by  a  consequence  of  law  the  legal  pi'operty  in  the  goods  to  the 
plaintiffs,  whatever  might  be  the  intention  of  the  jjarties ;  and  there- 
fore it  was  not  like  a  power  of  attorney,  Avhich  only  enables  the  attor- 
ney to  sue  in  the  name  of  his  principal :  and  the  only  effect  of  the  want 
of  a  valuable  consideration  paid  by  tlie  plaintiffs  is,  that  they  stand  in 
the  same  situation  as  Oddy  &  Co.  would  have  done,  in  which  view  of 
the  case  the  time  of  making  such  indorsement  cannot  vary  the  ques- 
tion ;  though  certainly  a  bill  of  lading  operates  after  the  landing  of  the 
goods.  [Le  Blanc,  J.  It  does  not  aj)pear  in  the  case  when  the  bill  of 
lading  was  indorsed  to  the  plaintiffs;  therefore  we  cannot  take  notice 
of  that  fact.]  Then,  as  between  Browne  &  Co.  and  Oddy  &  Co.,  the 
property  never  passed  from  the  first  to  the  last  mentioned.  No  con- 
sideration was  ever  paid  by  Oddy  &  Co.,  and  the  legal  title  never  passed 
from  the  shipjjers  who  shipped  on  their  own  account,  as  appears  by  the 
express  words  of  the  bill  of  lading. 

LoKD  ELLENBOKoiKiii,  C.  J.  If  it  wcrc  necessary  to  decide  whether  or 
not  the  plaintiffs  could  maintain  this  action,  supposing  the  property  not 
to  have  passed  to  Oddy  &  Co.,  I  should  think  that  they  could  not;  for 
no  decision  of  a  court  of  law  upon  the  subject  of  bills  of  lading  has 
gone  further  than  to  say  that  the  assignment  of  a  bill  of  lading  by  the 
consignees  for  a  valuable  consideration,  and  without  notice  by  the 
party  taking  it  of  a  better  title,  passes  the  property  in  the  goods  thereby 
consigned.  But  no  consideration  having  been  paid  by  the  plaintiffs  in 
this  case  for  such  assignment,  they  took  the  bill  of  lading  merely  as 
agents  for  Browne  &  Co.,  and  wthout  any  property  in  themselves  in 
the  goods.  The  analogy  between  bills  of  lading  and  bills  of  exchange 
has  been  pushed  in  the  argument  beyond  all  warrant  of  authority ;  but 
I  agree  to  the  extent  of  the  doctrine  in  the  case  of  Lickbarrow  v. 
Mason,  that  an  indorsement  of  a  bill  of  lading  for  a  valuable  consider- 
ation, and  without  notice  by  the  indorsee  of  a  better  title,  passes  the 
property.  But  supposing  the  plaintiffs  to  stand  in  the  situation  of 
Browne  &  Co.,  they  would  still  not  be  entitled  to  recover.  The  goods 
were  originally  purchased  for  Oddy  &  Co.,  by  their  orders,  and  ship|)ed 
for  their  use  and  at  their  risk ;  they  were  therefore  entitled  to  the  pos- 
session of  them  as  soon  as  they  arrived,  the  shippers  not  having  stopped 
them,  in  transitu ;  and  the  only  thing  which  stood  between  Oddy  & 
Co.  and  such  possession  was  the  circumstance  of  the  captain's  having 


920  '   COXE   V.    HARDEN.  [CHAP.   II. 

si2:ned  bills  of  lading  in  such  terms  as  did  not  entitle  them  to  call  upon 
him  for  a  delivery  under  their  bill  of  lading.  But  that  difficulty  has 
been  removed;  for  the  captain  has  actually  delivered  the  goods  to 
their  assigns.  Whether  in  consequence  of  that  Browne  &  Co.  may 
maintain  an  action  against  the  captain  is  another  question ;  but  it  is 
enough  to  say  that  the  delivery  has  been  made,  that  is,  made  to  those 
to  whom  and  for  whose  use  the  goods  were  sent,  and  at  whose  risk 
they  were  without  doubt  while  in  transitti,  and  in  whom  the  property 
therefore  was,  subject  only  to  a  sort  oi  jus  postliminii,  the  right  in  the 
shippers  of  stopping  them  in  transitu ;  but  here  that  right  was  not 
attempted  to  be  exercised  till  after  the  goods  were  arrived  and  deliv- 
ered into  the  hands  of  the  persons  for  whom  they  were  destined,  when 
it  was  too  late.  I  observe  indeed  at  the  foot  of  the  account  of  sales 
that  the  net  proceeds  are  only  stated  to  be  carried  provisionally  to  the 
credit  of  Oddy  &  Co. ;  but  that  is  sufficiently  explained  by  what  fol- 
lows, because  the  property  was  under  litigation.  But  that  cannot  affect 
the  question  of  right  as  between  Browne  &  Co.  and  Oddy  &  Co.,  to 
which  latter  the  possession  of  the  defendants  can  alone  be  referred. 
Then  the  goods  which  were  shipped  by  the  orders  and  at  the  risk  of 
Oddy  &  Co.  became  their  property  subject  only  to  the  shipper's  right 
of  stoppage  while  in  transitu,  which  right  not  having  been  exercised 
during  that  period,  the  goods  on  delivery  became  the  indefeasible 
property  of  Oddy  &  Co.,  and  they  were  entitled  to  transfer  their  right 
in  them  to  the  defendants. 

Gkose,  J.  As  to  the  question  touching  the  property  in  the  goods,  it 
is  clearly  in  the  defendants.  They  were  originally  ordered  to  be 
shipped  by  Oddy  &  Co.,  under  whom  the  defendants  claim ;  they  were 
accordingly  shipped  on  account  of  Oddy  &  Co.,  and  at  their  risk ;  that 
vested  the  property  in  them  by  law,  subject  only  to  be  devested  by  the 
shippers  stopping  the  goods  in  transitu.  Then  has  the  property  been 
so  devested '?  We  only  find  that  the  shippers  transmitted  a  bill  of 
ladino-  indorsed  to  the  plaintiffs,  to  authorize  them  to  receive  the  goods 
from  the  captain.  When  that  indorsement  was  made  does  not  appear 
in  the  case ;  it  might  have  been  after  the  goods  got  to  the  hands  of  the 
defendants.  At  any  rate  it  came  too  late  after  actual  delivery  to  the 
vendees.  Besides,  to  entitle  these  plaintiffs  to  sue,  it  should  appear  that 
the  bill  of  lading  was  indorsed  to  them  for  a  valuable  consideration. 
Nothing  therefore  is  shown  to  devest  the  property,  which  originally 
vested  in  Oddy  &  Co.  upon  the  shipment  of  the  goods.  After  such 
shipment  they  might  have  insured  the  goods  as  their  property,  and 
would  have  been  entitled  to  recover  the  value  if  lost.  And  without 
insurance  the  loss,  if  any,  in  the  course  of  the  voyage  must  have  been 

borne  by  them. 

Lawrence,  J.  It  is  not  necessary  to  decide  the  first  point,  relative  to 
the  want  of  title  in  the  plaintiffs  to  maintain  trover ;  but  it  seems  to 


SECT.  VI.]  COXE   V.  HARDEN.  921 

me  that  the  plaintiffs'  coiinsol  has  attempted  to  carry  the  eftect  of  the 
indorsement  of  a  bill  of  hiding  much  farther  than  it  has  hitherto  gone. 
The  indorsement  of  the  bill  of  lading  to  the  plaintiffs  in  this  case  was 
no  more  than  Browne  &  Co.  giving  an  authority  to  the  captain  to 
deliver  the  flax  to  the  person  to  whom  such  indorsement  directed  the 
delivery  to  be  made.  The  object  in  making  it  was  only  to  enable  the 
plaintiffs  to  take  possession  of  the  flax  on  account  of  the  shippers,  as  a 
matter  of  precaution  in  case  of  the  insolvency  of  Oddy  &  Co. ;  the 
shippers  trusting  that  the  captain  would  not  deliver  the  goods  without 
a  proper  authority.  There  was  certainly  no  intention  on  their  part  to 
transfer  the  property  to  the  plaintiffs.  But  supposing  that  were  other- 
wise, still  the  plaintiffs  would  not  be  entitled  to  recover.  Upon  the 
shipment  of  the  goods  on  account,  and  at  the  risk  of  Oddy  &  Co.,  the 
property  became  vested  in  them,  and  so  it  continued  from  that  time, 
subject  only  to  the  consignors'  right  of  stopping  it  in  transitu.  That 
is  so  clear  that  no  authority  is  wanted  to  establish  it.  Then  the  right 
of  stopping  them  not  having  been  exercised  while  the  goods  were  in 
tratisitu,  when  Oddy  &  Co.  got  possession  of  them  they  had  a  right  to 
transfer  them  to  the  defendants. 

Le  Blanc,  J.  The  only  difficulty  in  the  argument  arises  from 
taking  into  consideration  the  case  as  between  the  captain  and  the  ship- 
pers, and  appl}dng  it  to  the  question  between  the  latter  and  the  con- 
signees. The  captain,  indeed,  undertook  by  the  bills  of  lading  which 
he  signed  to  deliver  the  goods-  only  to  the  order  of  the  shippers,  and 
he  may  be  liable  to  answer  to  them  for  the  breach  of  that  contract. 
But  the  question  is  different  as  between  these  parties ;  for  supposing 
that  the  plaintifis  got  the  legal  property  from  Browne  &  Co.  by  the 
bare  indorsement  of  the  bill  of  lading,  which  I  much  doubt,  yet  it 
appears  that  the  goods  had  been  ordered  by  Oddy  &  Co.,  and  were 
shipped  on  their  account  and  at  their  risk,  by  Browne  &  Co.  Then, 
upon  such  shipment,  without  any  bill  of  lading,  they  became  the  prop- 
erty of  Oddy  &  Co.,  subject  only  to  the  right  of  Browne  &  Co.  to  stop 
them  in  transitu.  Then  whether  the  ]>laintiffs  be  the  agents  of  Browne 
&  Co.  or  have  a  property  themselves  in  the  goods  transferred  to  them 
by  the  shippers,  yet  as  they  could  only  exercise  the  right  of  stoppage 
while  the  goods  were  in  ti'ansitu,  when  once  they  were  in  the  possession 
of  Oddy  &  Co.,  or  of  those  Avho  had  authority  from  them  to  receive  them 
(whether  received  rightfully  or  M^rongfully  from  the  captain),  the  right 
of  stoppage  ceased,  and  the  property  became  indefeasibly  vested  in 
Oddy  &  Co.,  without  any  further  control  of  the  shippers  over  it.  Upon 
this  ground  alone  the  defendants  are  entitled  to  retain  the  value  of  the 
goods.  Postea  to  the  defendants. 


[chap.  II. 


'     \^\  1/  ""      ^^^^   ^'  ^-ATKINSON   Ind   Another. 

In  the  Common  Pleas,  November  15,  1814. 

[Reported  in  5  Taunton,  759.] 

Trover  for  a  quantity  of  hemp  and  flax.  The  cause  was  tried  be- 
fore Mansfield,  C.  J.,  at  the  sittings  after  Michaelmas  term,  1813,  and 
a  verdict  was  found  for  the  plaintiff",  subject  to  a  case.  In  1809,  the 
plaintiff"  consigned  wines  to  Sniidt  &  Co.  at  Riga,  for  sale  on  his 
account,  and  next  year  ordered  them  to  purchase  for  him  the  hemp 
and  flax  in  question.  In  April,  1810,  the  plaintiff"  sent  his  own  ship, 
the  Bremen  packet,  to  receive  the  goods  so  ordered.  On  her  arrival 
at  Riga,  the  captain  received  from  Smidt  &  Co.  the  goods  in  question, 
with  others,  on  behalf  of  the  plaintiff",  and  as  the  plaintiff"'s  own  goods, 
which  Smidt  &  Co.  stated  to  the  captain  that  they  were.  These 
goods  not  fully  loading  the  ship,  Smidt  &  Co.  procured  other  goods  to 
be  shipped  on  freight ;  the  captain,  by  agreement  with  the  plaintiff" 
(his  owner),  was  to  have  £15  per  cent  primage  upon  the  ship's  home- 
ward freight,  to  be  estimated  as  well  upon  the  plaintiff^'s  own  goods 
as  upon  those  which  were  actually  to  pay  freight,  the  rate  of  which 
last  was  £10  per  ton,  but  Smfdt  &  Co.  required  the  captain  to  estimate 
the  freight  upon  the  goods  received  for  the  plaintiff"  at  £8  per  ton  only. 
The  captain  objected  to  this  distinction,  but  Smidt  &  Co.  insisted  that 
his  owner  was  entitled,  that  the  freight  upon  the  goods  belonging  to 
the  plaintiff"  should  not  be  estimated  at  the  same  rate  which  the  other 
goods  were  to  pay ;  at  length  the  captain  consented.  Before  the  ship 
left  Riga,  Smidt  &  Co.  wrote  a  letter  without  date  to  the  plaintiff", 
apprising  him  of  having  shipped  the  hemp  and  flax  in  question  by  the 
Bremen  packet,  and  stating  that  they  enclosed  the  bills  of  lading  and 
invoices  of  that  shipment,  for  which  they  debited  the  plaintiff"'s  account, 
and  requested  that,  being  found  right,  the  plaintiff"  would  have  them 
noted  in  conformity  therewith.  In  that  letter  were  enclosed  four  in- 
voices, dated  18-30  June,  expressing  the  flax  to  be  shipped  on  board 
the  Bremen  packet,  for  the  account  and  the  risk  of  the  plaintiff";  and 
Smidt  &  Co.,  after  enumerating  all  the  charges  on  the  cargo  and  ship, 
therein  charged  to  the  plaintiff"  a  commission  of  two  and  a  half  per 
cent  on  the  amount  of  the  goods  and  charges.  In  a  letter  of  15—27 
June,  they  i^romised  to  furnish  the  plaintiff"  with  the  vouchers  of  the 
whole  shipment;  and  in  another  mentioned  having  before  sent  him 
the  bill  of  lading  and  invoices  of  those  shipments,  performed  on  the 
plaintiff''s  account  on  board  the  Bremen  packet,  and  they  annexed  the 


SECT.  VI.]  OGLE   r.    ATKINSON.  923 

duplicate  of  the  vouchors.  After  the  captain  hud  received  the  goods, 
he  was  requested  by  Smidt  &  Co.  to  sii^n  a  hill  of  lading  for  them, 
TleTiyera'Ble  'to ''■  ■  or  his  order,  for  whicli  \\v  \va<  to  receive  freight  at 
tEe'rates  therein  specified.  "TTie  captain  ol)jected  to  sigh  the  Bills  of 
lading  with  a  blank  for  the  name  of  the  conpignee,  until  Smidt  &  Co. 
assured  him  that  was  of  no  consequence,  as  the  goods  were  to  be  de- 
livered to  his  owner,  upon  which  he  signed  it.  .  The  first-mentioned 
letter  to  the  plaintiff,  which  contained  the  invoices  an' 1  1. ill  of  lading, 
was  sent  by  Smidt  &  Co.  to  Lehr,  their  agent  in  this  country,  in  a 
letter  dated  Riga,  4-16  June,  wherein  they  stated  respecting  the  Bremen 
packet,  that  they  should  make  out  Ogle's  bills  of  lading  to  order,  that 
in  case  of  liis  not  accepting  the  drafts,  Ruckers  might  become  pos- 
sessors of  the  bills  of  lading  ;  and  after  stating  the  amount  of  the  goods 
loaded  for  the  plaintiff,  and  charges,  and  that  there  would  be  very  little 
of  the  proceeds  of  his  wines  remaining  at  his  disposal,  they  added  that 
they  drew  on  him  only  £2500,  which  bills  they  remitted  to  Messrs. 
Ruckei-s.  They  conceived  that  sum  to  be  the  balance  due  to  them, 
w^hich  the  plaintiff  disputed.  In  a  letter  of  2-14  July,  Smidt  &  Co. 
instructed  Lehr  to  take  the  necessary  measure,  that  in  case  Smidt  & 
Co.'s  drafts  of  £1300  and  £1200  at  three  months,  drawn  on  the  4-16 
June,  were  not  accepted,  he  should  otherwise  dispose  of  the  bills  of 
lading  he  had  in  hand,  and  let  Messrs.  Ruckers  receive  the  goods  and 
dispose  of  them.  Lehr,  in  pursuance  of  these  instructions,  called  upon 
the  plaintiff  before  the  ship  arrived,  and  delivered  to  him  the  letter 
enclosing  the  four  invoices,  and  stated  that  Smidt  &  Co.  ha<l  drawn 
two  bills  upon  him,  the  one  for  £1200,  the  other  for  £1300,  which  were 
in  the  hands  of  Messrs.  Ruckers,  and  requested  the  plaintiff  Avould 
accept  them ;  the  plaintiff  refused,  and  Lehr-  in  consequence  indorsed 
the  bill  of  lading  to  Messrs.  Ruckers.  On  the  ship's  arrival  in  Eng- 
land, before  any  of  the  goods  had  been  delivered  to  the  plaintiff", 
Messrs.  Ruckers  claimed  the  goods  as  indorsees  of  the  bill  of  lading, 
but  the  captain  refused  to  deliver  to  them,  and  delivered  the  goods  to 
the  plaintiff,  who  deposited  them  with  the  defendants  as  warehouse- 
keepers  on  his  account.  He  had  since  demanded  them  back  from  the 
defendants,  and  tendered  them  the  amount  of  their  charges,  but  they 
had  refused  to  deliver  them.  There  was  no  tender  of  any  freight  for 
the  goods.  Smidt  &  Co.  were  alien  enemies  at  the  time  of  the  ship- 
ment and  trial.  The  plaintiff  had  obtained  a  license  from  the  crown 
to  import  these  goods,  upon  which  license  Smidt  &  Co.  had,  before  the 
ship  lefl  Riga,  indorsed  that  the  goods  were  shipped  on  British  account. 
If  the  plaintift'  were  not  entitled  to  recover  the  value  of  the  goods  so 
deposited  with  the  defendants,  a  nonsuit  was  to  be  entered. 

This  case  was  argued  by  Vaughan,  Serjt.,  for  the  plaintiff;  and  by 
Lens,  Serjt.,  for  the  defendant.  The  former  referred  to  the  cases  of 
DeMctton  v.  DeMellon,  2  Campb.  420 ;  Pinto  v.  Santos,  5  Taunt.  447 ; 


\ 


924  OGLE  V.    ATKINSON.  [CHAP.  II. 

Bolitlingk  V.  Inglis,  3  East,  381 ;  Fowler  and  Another  v.  Kymer  and 
Mactaggart,  cited  7  T.  R.  442,  and  briefly  reported  by  Mr.  Abbott  on 
Merchant  Ships,  4th  ed.  386,  and  3  East,  396 ;  and  Coxe  v.  Harden,  4 
East,  211.  The  latter  distinguished  this  case  from  Bohtlingk  v.  Inglis, 
Coxe  V.  Harden,  and  Fowler  v.  Kymer  and  Mactaggart.  And  the 
former  was  stopped  in  his  reply  by  the  court. 

GiBBS,   C.  J.      This   is  an  action    by  Ogle  against  Atkinson,  into 
whose  hands  Ogle  had  delivered  goods,  brought  for  the  purpose  of 
recovering  from  them  the  value  of  the  goods,  which  they  refuse  to  re- 
deliver, insisting  that  the  pi-operty  of  the  goods  is  in  Smidt  &  Co., 
fi-om  whom  they  have  had  notice  to  detain  them.     There  are  two  pre- 
liminary points  made  by  the  plaintiif :  first,  that  the  defendants  cannot 
refuse  to  deliver  up  the  goods  to  the  plaintiff  from  whom  they  received 
them ;  but,  if  the  property  is  in  others,  I  think  they  may  set  up  this 
defence.     Secondly,  it  is  said,  Ogle  has  a  lien  for  freight ;  he  might 
have  had  such  a  lien,  but  if  he  wrongfully  gets  the  goods  into  his 
hands  on  a  claim  of  property,  he  cannot  afterwards  set  up  a  lien  for 
fi-eight.     This  brings  us  to  the  true  question,  which  is,  in  whom  the 
property  is  vested.     It  is  true  that  the  ^oods  might  have  been  deliv- 
ered aboard  the  ship  on  "the  Terms  on  which  the  defendant  contends 
they'were^^TelTverecT[*an3'lT TKe^  ^aS^^'Been,  no  doubt  the  plaintiff  could 
not  have  obtaineT  tlie  goods,  without  accepting  the  bills ;  but  were 
they  so  delivered?     Smidt  &  Co.,  in  their  letter  to  Ogle,  never  make 
mention  of  any  bills  to  be  accepted  by  Ogle.     N^loubt,_a^delivery  on 
board  this  ship  wasanabsoh^te  delivery  to.  Oglev.wnless  qualified. 
Does  the  case,  therefore,  state  any  such  qualification  ?     The  case  states 
that  the  captain  received  them  as  the  plaintiff"'s  own  goods,  which 
means   his   own   goods   absolutely ;   not  with    any  qualification ;  and 
Smidt  &  Co.  represent  them  to  the  captain  to  be  goods  of  Ogle,  and 
as  such  they  are  delivered.     If  Smidt  &  Co.  had  saidj.  >Y,.e  deliver  the 
goods  to  you,  to  be  the  goods  of  Ogle  if  he  accepts  certain  bills,  the 
defence  would  avail;  but  no  such  things  passes^         cannot  annex  to 
this  delivery  the  qualification  that  they  are  to  be  the  plaintifl"'s  own 
goods  if  he  does  certain  things.     The  captain,  then,  receives  them  as 
Ogle's  absolutely.     Is  this  state  altered?     The  goods  go  on  board; 
bills  of  lading  are  tendered  to  the  captain  to  sign  in  blank ;  the  captain 
objects.     According  to  the  defendant's  argument,  the  answer  should 
have  been,  I  leave  the  bills  in  blank,  because  it  is  as  yet  uncertain  to 
whom  the  bills  may  be  deliverable,  for  that  the   cargo  is  to  go  to 
Rucker,  unless  the  plaintiff  accepts  certain  bills;  but  the  answer  given 
is,  The  blank  in  the  bill  is  immaterial,  for  the  goods  are  at  all  events  to 
be  delivered  to  your  owner.     If  the  blank  was  immaterial,  it  imported 
no  alteration  in  the  terms  of  the  delivery  ;  if  it  was  material,  a  fraud 
was  practised  on  the  captain,  which  cannot  avail  the  consignors.     I 
therefore  think  that  the  property  of  the  goods  entirely  vested  in  the 


SECT.  VI.]  BRANDT  V.    BOWLBY.  925 

plaintiff,  anfl  that  the  subsequent  acts  of  the  consignors  and  their 
agents  cannot  j)revent  hiui  from  recovering  against  the  defendants ; 
the  judgment  tlierefore  must  be  for  the  plaintitf. 

Hkatii,  J.  I  am  of  the  same  opinion.  As  to  the  preUminary  point 
first  taken,  it  is  peculiar  to  the  action  of  ejectment,  that  he  who  is 
entrusted  with  the  possession  of  land  must  deliver  it  back  to  his  lessor, 
but  that  rule  extends  to  no  other  action.  As  to  the  merits,  it  is  ad- 
mitted that  at  the  time  of  the  delivery  into  the  ship,  the  property  was 
vested  in  the  plaintiff,  unless  there  was  something  to  divest  it.  It  is 
afterwards  said,  there  was  a  reservation  of  the  right  of  the  vendor. 
This,  however,  is  never  communicated  to  the  plaintiff,  but  only  to  the 
vendor's  agent ;  that  could  not,  therefore,  affect  the  right  of  the  plain- 
tiff, which  had  before  vested.  It  is  similar  to  the  mental  reservation 
of  the  Jesuits. 

Chambee,  J.  I  am  of  the  same  opinion.  Here  is  an  explicit,  plain, 
direct  declaration  by  the  parties  that  the  goods  are  Ogle's,  and  I  can 
see  nothing  to  revoke  or  alter  it. 

Dallas,  J.,  concurred.  It  is  properly  admitted  by  the  counsel  for 
the  defendant,  that  a  delivery  on  board  Ogle's  ship  was  an  absolute 
delivery,  unless  there  were  something  to  make  it  otherwise,  and  when 
the  captain  is  desired  to  sign  a  blank  bill  of  lading,  and  he  objects,  he 
is  told  it  will  make  no  difference,  inasmuch  as  the  delivery  to  Ogle  is 
to  be  in  all  events  absolute.  Judgment  for  the  plaintiff . 

TBRAXDT  and  Another  v.  BOWLBY  and  Another.  \' 


^>' 


v\ 


In  the  King's  Bench,  November  7, 1831.  ^ 

[Reported  in  2  Bamewall  ^  Adolphus,  932.]  J* 

AssiTMPSiT  against  the  defendants,  as  owners  of  the  ship  Helena,  for  ^  k 
not  delivering  to  the  plaintiffs'  orders  or  assigns  at  London  a  cargo  of  ^ 
wheat  shipi)ed  Ijy  them.  At  the  trial  before  Lord  Tenterden,  C  J.,  at 
the  London  sittings  after  last  Trinity  term,  the  following  appeared  to 
be  the  iticts  of  the  case :  The  plaintiffs  were  merchants,  having 
establishments  at  St.  Petersburg  and  Archangel,  and  Emanuel  H. 
Brandt,  brother  of  one  of  the  plaintiffs,  was  their  agent  residing  in 
London.  Mr.  Berkeley,  a  commission  merchant,  who  lived  at  New- 
castle-upon-Tyne, being  desirous  of  making  some  purchases  in  corn, 
sent,  in  June  and  July,  1830,  to  the  plaintiffs  (through  Emanuel  H. 
Brandt)  several  orders  for  the  purchase  of  corn  on  his  account,  direct- 
ing them  to  draw  upon  Esdaile  &  Co.,  bankers  in  London,  for  the 


926  BRANDT    V.    BOWLBY.  [CHAP.  II. 

amount,  and  also  upon  Harris  &  Co.,  in  London,  to  a  certain  extent. 
Berkeley  chartered  four  ships,  and,  among  the  rest,  the  Helena,  belong- 
ing to  the  defendants,  and  sent  them  to  Russia  to  be  freighted  by  the 
plaintiffs.  A  dispute  arose  between  Berkeley  and  E.  H.  Brandt,  and 
the  former  sent  a  letter  on  the  28th  of  July  cancelhng  every  order  he 
had  given.  That  letter  was  forwarded  to  St.  Petersburg  by  E.  H. 
Brandt.  Various  shipments  were  made  by  the  houses  in  Russia,  on 
account  of  Berkeley,  and  were  transmitted  to  England  in  the  vessels 
chartered  by  him.  Bills  were  drawn  upon  Esdaile  &  Co.  for  the 
amount,  but  on  their  arrival  they  were  dishonored,  and  the  cargoes 
were  refused.  The  question  in  this  case  arose  as  to  a  cargo  shipped 
by  the  Helena.  By  a  letter  dated  August  8,  1830,  to  Berkeley,  the 
plaintiffs  wrote  as  follows  :  — 

We  have  succeeded  in  purchasinij  a  cvix^o  of  wheat  for  the  Helena,  and  shall 
despatch  it  as  soon  as  possible  to  the  address  of  R.  Harris  &  Sons,  London, 
which  house  we  shall  address  to-day  with  regard  to  eifecting  the  insurance.  We 
trust  what  we  have  done  for  you  will  meet  your  approval,  although  by  a  com- 
munication received  from  Mr.  E.  H.  Brandt  subsequently  to  our  having  made 
this  purchase  we  learn  that  you  have  been  induced  to  cancel  the  several  orders 
in  our  hands. 

This  cargo  was  afterwards  shipped  in  the  Helena  for  England,  and 
the  plaintiffs  wrote  the  following  letter  to  Berkeley :  — 

St.  Petersburg,  August  26,  1830. 

We  now  have  much  pleasure  in  waiting  upon  you  with  invoice  and  bill  of  lad- 
ing of  770  chests  of  wheat  shipped  for  your  account  and  risk  per  the  Helena, 
Mann.  For  the  amount  of  the  former,  if  found  correct,  you  will  please  give  us 
credit  with  £810  4s.  bd.  An  indorsed  bill  of  lading  we  have  this  day  forwarded 
to  Messrs.  R.  Harris  &  Sons,  of  London,  at  the  same  time  drawing  upon  them 
for  £673  155. ;  and  for  the  balance  remaining  thus  in  our  flivor,  viz.,  £130  9s. 
bd.,  we  this  day  make  free  to  value  upon  you  at  three  months'  date,  payable  in 
London  to  the  order  of  Emanuel  H  Brandt,  Avhich  draft  we  beg  to  recommend 
to  your  kind  protection. 

An  unindorsed  bill  of  lading  was  enclosed,  and  an  invoice  of  "  wheat 
bought  by  order  and  for  account  of  J.  Berkeley,  Esq.,  Newcastle,  and 
shipped  at  his  risk  to  London,  to  the  address  of  R.  Harris  &  Sons 
there,  per  the  Helena,  Captain  James  Mann."  The  bills  of  exchange 
enclosed  in  this  letter  drawn  upon  Berkeley  and  Harris  &  Co.  were 
presented  for  acceptance  and  refused.  Whereupon  E.  H.  Brandt  de- 
livered the  indorsed  bill  of  lading  to  Harris  &  Co.,  and  desired  them 
to  accept  the  bill  of  exchange  draAvn  upon  them  on  his  account,  and 
to  effect  an  insurance  upon  the  cargo,  which  they  were  to  receive  on  its 
arrival.  In  a  letter  dated  September  29,  1830,  from  E.  H.  Brandt  to 
Mr.  Hedley  (who  acted  as  an  agent  for  Berkeley),  he  wrote, — 

Mr.  Berkeley  refuses  to  receive  the  cargoes  or  give  any  instructions  for  the 
acceptance  of  the  bills,  and  I  have  been  obliged  for  the  security  of  the  property 


SECT.  VI,]  BRANDT    V.    BOWLBY.  927 

to  insure  tlie  cargoes,  and  give  the  captain  orders  where  to  proceed  to,  though 
of  course  I  still  hold  Mr.  Berkeley  answerable  for  the  consequences  of  his  be- 
havior. I  conceive  that  you  are  bound  to  see  that  his  engagements  are  fulfilled, 
and  I  call  on  you  to  see  Mr.  B.  immediately  and  make  arrangements  for  the 
acceptance  of  all  the  bills  without  delay. 

On  the  2d  of  October,  Berkeley  confirmed  the  revocation  of  his 
orders,  and  on  the  24th  of  November,  E.  H.  Brandt  gave  notice  to 
Hedlev  that  he  should  retain  the  whole  of  the  Avheat  for  his  brother; 
after  whicli  Berkeley  offered  to  pay  the  price  of  the  Avheat  and  the 
cliarges,  but  it  was  refused.  The  captain  delivered  the  cargo  of  the 
Helena  to  Berkeley's  orders  at  Grangemouth,  and  not  to  Harris  &  Co., 
in  London,  according  to  the  bill  of  lading.  Upon  proof  of  these  facts, 
the  Lord  Chief  Justice  directed  the  jury  to  find  a  verdict  for  the  plain- 
tiffs, and  to  assess  the  damages  at  the  price  of  tlie  cargo  when  it 
reached  the  port  of  discharge. 

Campbell^  for  the  defendants,  moved  for  a  new  trial,  on  the  ground 
of  misdirection,  or  to  reduce  the  amount  of  damages.  The  ship-own- 
ers, who  have  d'elivered  over  the  cargo  of  the  Helena  to  Berkeley,  if 
answ^erable  at  all  to  the  plaintiffs,  are  only  so  in  nominal  damages. 
Berkeley  had  sent  out  orders  to  Brandt  &  Co.,  the  plaintiffs,  to 
which  they  had  assented,  and  thereby  a  contract  was  established  be- 
tween them.  Afterwards  Berkeley  sent  to  cancel  all  his  orders;  but 
he  could  not  of  himself  rescind  the  contract ;  Brandt  &  Co.  must  also 
have  assented  to  such  cancelling.  But  they  did  not  so  assent  after 
they  had  received  the  letter  of  cancellation;  they  despatched  the 
cargo  by  the  Helena,  witli  an  invoice  stating  it  to  have  been  bought 
for  his  account  and  shipped  at  his  risk.  On  that  shipment,  then,  the 
property  vested  in  him.  [Lord  Tenterden,  C.  J.  He  had  refused 
to  receive  it  before  that.]  But  he  was  afterwards  willing  to  receive  it, 
and  offered  to  pay  the  invoice  price,  and  all  the  charges  due  upon  the 
cargo.  It  is  clear  that  trover  could  not  have  been  maintained  against 
Berkeley  for  the  wheat  if  he  had  got  possession  of  it.  Coxe  v.  Harden.^ 
There  goods  were  purchased  abroad  and  shipped  on  account  and  at  the 
risk  of  the  consignee,  and  bills  of  lading  were  taken  from  the  captain 
to  deliver  them  to  the  consignor's  own  order.  One  of  them  was  trans- 
mitted unindorsed,  together  with  an  invoice,  to  the  consignee,  enclosed 
in  a  letter,  informing  him  that  the  consignor  had  drawn  upon  him  for 
the  amount,  and  an  indorsed  bill  of  lading  was  sent  to  the  consignor's 
agent.  It  was  held  that  on  the  shipment,  the  property  in  the  goods 
vested  in  the  consignee.  That  case  is  quite  analogous  to  the  present, 
and  proves  that  the  wheat  could  not  have  been  recovered  from  Berke- 
ley. [Parke,  J.  In  the  present  case  the  letter  enclosing  the  bill  of 
ladino-  informed  the  consignee  that  an  indorsed  bill  of  lading  had  been 

1  4  East,  211. 


sS^ 


928  BRANDT    V.    BOWLBY.  [CHAP.  II. 

sent  to  another  person.  That  was  not  so  in  the  case  cited.]  But  sup- 
posing the  court  to  be  of  a  contrary  opinion,  then  the  proper  measure 
of  damages  was  the  invoice  price  of  the  wheat  and  the  charges,  not 
the  value  at  the  port  of  discharge.  The  amount  of  the  damages  ought 
therefore  to  be  reduced. 

Lord  Tenterden,  C.  J.  There  ought  to  be  no  rule  in  this  case.  It 
is  an  action  against  the  defendants  as  ship-owners,  on  the  bill  of  lading, 
by  the  terms  of  which  the  captain  undertakes  to  deliver  certain  goods 
shipped  for  London,  at  London,  to  the  pluintiiFs'  orders.  The  com- 
plaint against  the  defendants  is,  that  instead  of  delivering  them  to  the 
plaintiffs'  orders,  they  delivered  them  at  another  place,  and  to  a  person 
who  had  not  the  plaintiffs'  orders.  This  was  a  breach  of  the  contract 
for  which  tlie  plaintiffs  might  undoubtedly  maintain  an  action  against 
the  ship-owners.  But  they  defend  themselves  under  Berkeley,  and  say 
that  he  had  a  right  to  receive  the  goods,  for  the  property  had  vested  in 
him,  and  therefore  the  plaintiffs  are  not  entitled  to  more  than  nominal 
damages.  Let  us  see  how  that  is.  The  wheat  had  been  purchased  on 
his  order,  which  he  revoked.  By  the  original  terms  of  the  contract  it 
was  to  be  sent  to  London,  and  bills  were  to  be  drawn  upon  Harris  & 
Co.  for  the  amount.  Berkeley,  however,  insisted  he  would  have  noth- 
ing to  do  Avith  it.  Emanuel  H.  Brandt  insisted  he  should,  and  that  he 
would  hold  him  to  his  engagement.  The  plaintiffs  send  the  letter  of 
the  26th  of  August  stating  that  they  have  shipped  the  wheat  on  his 
account.  At  the  same  time  they  inform  him  that  they  have  forwarded 
an  indorsed  bill  of  lading  to  Harris  &  Co.,  and  have  drawn  upon  him 
and  them  for  the  amount.  He  directed  them  not  to  accept  the  bills 
drawn  on  them,  and  they  Avere  not  accepted.  Can  it  be  said  that  he 
has  performed  his  part  of  the  contract,  which  was  not  only  to  receive 
the  goods,  but  also  that  Harris  &  Co.  should  accept  bills  for  payment 
of  the  value?  He  could  have  no  right  to  the  goods  unless  he  allowed 
Harris  &,  Co.  to  accept  the  bills ;  for  that  was  a  part  of  the  bargain. 
After  the  refusal  to  accept,  E.  H.  Brandt  effected  an  insurance  on  the 
goods  for  the  use  of  the  plaintiffs.  It  is  impossible,  thereforCj  to  say 
that  the  property  had  vested  in  Berkeley;  ^^^  the  defendantswefe'' 
not  justified  in  delivering  the  wheat  to  him.  The  damages  ought' ^ 
be  the  value  of  the  cargo  at  the  time  when  it  was  to  have  been  de- 
livered, that  is,  at  the  port  of  discharge. 

Parke,  J.  I  am  of  the  same  opinion.  This  is  an  action  on  the  bill 
of  lading  for  not  delivering  to  the  assignee  of  the  plaintiffs.  The  de- 
fendants have  not  done  that,  but  have  delivered  to  a  third  j^arty.  In 
order  to  defend  themselves,  they  must  establish  the  right  of  that  third 
party,  but  in  that  they  have  failed.  It  appears  that  Berkeley  gave 
orders  to  the  plaintiffs  to  purchase  wheat  on  his  account,  and  that  they 
consented  to  execute  those  orders.  Bei'keley,  however,  took  upon 
himself,  in  his  letter  of  the  28th  of  July,  to  cancel  his  orders.     Now? 


SECT.  VI.]  '  BRANDT    V.    BOWLBY.  929 

I  agree  to  the  law  laid  down  in  argument,  that  a  contract  cannot  be 
rescinded  by  one  only  of  two  contracting  i:)arties ;  but  the  question  in 
this  case  is,  whether  the  property  in  the  goods  shipped  ever  vested  in 
Berkeley  at  all.  That  depends  entirely  on  the  intention  of  the  con- 
signors. It  is  said  that  the  plaintiffs,  by  the  very  act  of  shij)j)ing  the 
wheat  in  pursuance  of  Berkeley's  order,  ii-revocal)ly  appropriated  the 
property  in  it  to  him.  I  think  that  is  not  the  effect  of  their  conduct ; 
for,  looking  to  the  letter  of  the  26th  of  August,  it  manifestly  appears 
that  they  intended  that  the  property  should  not  vest  in  Berkeley 
unless  the  bills  were  accepted.  They  stated  in  that  letter  that  they 
had  drawn  upon  Harris  &  Sons  and  Berkeley  bills  amounting  to  £810, 
the  price  of  the  wheat,  payable  to  E.  11.  Brandt ;  and  they  recom- 
mended them  to  his,  Berkeley's,  protection.  They  also  stated  that  they 
had  forwarded  to  Harris  &  Sons  an  indorsed  bill  of  lading,  and  they 
enclosed  to  Berkeley  an  unindorsed  bill  of  lading.  The  fact  of  their 
transmitting  the  latter  bill  of  lading  to  Berkeley,  and  an  indorsed  one 
to  Harris  &  Sons,  shows  clearly  that  they  did  not  intend  that  the 
property  in  the  wheat  should  vest  absolutely  in  Berkeley,  but  should  be 
subject  to  a  condition  that  the  bills  were  accepted.  As  they  were  not 
accepted,  Berkeley  has  not  performed  the  condition  on  which  the  vest- 
ing of  the  property  in  him  was  to  depend,  and  therefore  it  never  did 
vest  in  him.  The  only  remaining  question  is  as  to  the  amount  of 
damages.  As  between  the  parties  in  this  cause,  the  plaiutiffs  are 
entitled  to  be  put  in  the  same  situation  as  they  would  have  been  in  if  the 
cargo  had  Tseen  delivered  to  their  order  at  the  time  when  it  Avas  de- 
livered to  Berkeley ;  and  the  sum  it  would  have  fetched  at  that  time 
is  the  amount  of  the  loss  sustained  by  the  non-performance  of  the  de- 
fendants' contract. 

Taunton,  J.  The  bills  drawn  by  the  plaintiffs  in  payment  of  this  cargo 
not  having  been  accepted,  no  property  vested  in  Berkeley.  It  cannot 
be  said  that  by  the  letter  of  the  29th  of  September,  E.  H.  Brandt  set 
up  again  the  contract  which  had  been  rescinded.  That  letter  is  not  a 
waiver  of  the  breach  of  the  contract,  but  a  remonstrance  on  its  non- 
completion  and  the  non-acceptance  of  the  bills.  He  does  not  say,  We 
shall  hold  Berkeley  to  his  original  contract,  but  that  he  will  be  held 
answerable  for  the  consequences  of  his  behavior.  That  must  mean  for 
any  damage  which  may  accrue  from  his  not  performing  the  contract. 
As  to  the  amount  of  damages,  I  think  the  value  of  the  wheat  on  its 
arrival  at  the  port  of  discharge  where  it  was  delivered  to  Berkeley,  is 
the  amount  of  the  loss  sustained  by  the  defendants'  breach  of  con- 
tract. 

Patteson,  J.  I  am  of  the  same  opinion.  In  Coxe  v.  Harden,^ 
trover  was  brought  by  the  hidorsee  of  a  bill  of  lading  to  recover  the 

1  4  East,  211. 


930 


WILMSHURST   V.   BOWKER. 


[chap.  II. 


\\ 


\ 


1 


1^ 


^ 


I 

V 


value  of  goods,  the  possession  of  which  had  been  obtained  by  the  as- 
signee of  the  party  on  whose  account  they  were  shipped ;  and  although 
the  decision  in  that  case  was  that  the  action  was  not  maintainable, 
Lord  Ellenborough,  C.  J.,  and  Le  Blanc,  J.,  seem  to  intimate  that  an 
action  might  have  been  maintainable  by  the  consignors  against  the 
captain.     The  present  action  is  by  the  shipper  against  the  owners  for 
not  delivering  according  to  the  bill  of  lading.     I  think  such  an  action 
is  maintainable ;  and  that  being  so,  the  only  question  is,  what  damages 
are  recoverable  ?     Prima  facie  the  plaintiffs  are  entitled  to  recover  the 
sum  which  the  cargo  would  have  brought  when  it  ought  to  have  been 
delivered  to  the  plaintiffs'  assignee.    It  has  been  said  that  the  property 
absolutely  vested  in  Berkeley  by  the  shipment,  and  if  so,  that  the  plain- 
tiffs are  entitled  to  recover  nominal  damages  only ;  but  it  seems  to  me 
that  the  bills  drawn  for  the  cargo  not  having  been  accepted,  Berkeley 
had  not  performed  his  part  of  the  contract,  and  therefore  the  property 
did  not  vest  in  him,  and  consequently  that  the  plaintiffs,  were  entitled 
to  recover  the  full  value.  Rule  refused. 


/ 


v^^-i'^- 


1^ 


WILMSHURST  and  Another  v.  BOWKER  and  Anotheb 


In  the  Common  Pleas,  May  8,  1841.   ^^^^^^^^z^^^^^^^ 

[Reported  in  2  Manning  ^-  Granger,  792.] 

In  the  Exchequer  Chamber,  February  3, 

[Reported  in  7  Manning  ^'  Granger,  882.] 


1844. 


.^UT^ 


Case.  The  first  count '  stated  in  substance  that,  on  the  25th  Octo- 
ber, 1836,  the  plaintiffs  bargained  with  the  defendants  to  buy  of  them, 
and  the  defendants  sold  to  the  plaintiffs,  500  quarters  of  wheat  at  51s. 
per  quarter ;  that  on  the  27th  of  said  October,  the  defendants,  by  order 
of  the  plaintiffs,  caused  said  wheat  to  be  shipped  on  board  of  a  certain 
vessel  then  lying  at  the  port  of  Lynn,  in  the  county  of  Norfolk,  to  wit, 
a  vessel  called  the  Ramsgate,  of  which  one  Lightowler  was  then  master, 
to  be  carried  from  said  Lynn  to  Maidstone,  in  the  county  of  Kent,  for 
the  account  and  at  the  risk  of  the  plaintiffs,  and  there  to  be  delivered 
to  the  plaintiffs ;  and  the  defendants  then  parted  with  the  possession 

1  The  declaration  also  contained  a  count  in  trover,  the  pleadings  connected  with 
which  came  before  the  court  on  demurrer  in  Hilary  term,  1839.  Judgment  was  given 
for  the  defendants  on  the  ground  that  tlie  plaintiff  had  not  such  a  right  of  possession 
to  the  wheat  as  would  entitle  them  to  maintain  trover.  See  5  New  Cases,  541,  7 
£cott,  561. 


SECT.  VI.]  WILMSHURST   V.    BOWKER.  931 

of  the  said  wheat,  and  delivered  the  same  out  of  their  possession  to 
the  said  Lightowler,  in  and  on  board  of  the  said  vessel ;  and  the  said 
Lightowler  then  received  the  said  wheat,  and  had  possession  of  the 
same,  for  the  purposes  aforesaid.  That  afterwards,  on  the  said  27th  of 
October,  the  said  Lightowler  executed  and  delivered  to  the  defendants 
a  bill  of  lading,  whereby  he  undertook,  on  the  arrival  of  said  vessel  at 
Maidstone,  to  deliver  the  said  wheat  to  the  order  of  the  defendants; 
and  the  defendants  made  out  an  invoice  of  said  wheat,  stating  the 
same  to  be  shipped  by  order  and  for  the  account  and  risk  of  the  plain- 
tiffs, and  wrote  a  letter  to  the  plaintiffs,  requesting  them  to  add  to  said 
invoice  the  charge  for  insuring  said  wheat,  and  remit  the  amount  to 
the  defendants  in  due  course  ;  and  thereupon  the  defendants  enclosed 
said  invoice  and  bill  of  lading  (having  indorsed  the  latter  to  the  j^lain- 
tiffs)  in  said  letter,  and  sent  said  letter,  invoice,  and  bill  of  lading  to  the 
plaintiffs,  and  the  plaintiffs  afterwards,  on  the  said  27th  of  October, 
received  the  same,  and  then  became  and  were,  and  thence  hitherto  had 
been  and  still  were,  the  owners  thereof  respectively  ;  of  all  which  the 
defendants  had  notice.  Breach :  That  afterwards,  on  the  said  27th  of 
October,  the  })laintiffs  then  being  the  holders  of  the  said  bill  of  lading, 
and  not  being  bankrupts  or  insolvents,  but  being  then  lawfully  entitled 
to  have  the  said  wheat  delivered  by  the  said  Lightowler  to  them  the 
plaintiffs,  the  defendants,  well  knowing  the  premises,  but  contriving 
and  intending  to  injure  and  defraud  the  plaintiffs,  did  not  nor  would 
suffer  or  permit  the  said  wheat  to  be  delivered  to  the  plaintiffs,  but 
wrongfully  and  injuriously,  without  the  license  or  consent,  and  against 
the  will  of  the  plaintiffs,  revoked  and  rescinded  the  said  sale  of  the 
said  wheat  to  the  plaintiffs,  and  caused  and  procui-ed  the  said  wheat 
to  be  stopped  in  its  passage  to  the  plaintiffs,  and  forthwith  upon  such 
stoppage,  and  without  the  plaintiffs  haA'ing  notice  thereof  or  of  their 
intention  so  to  do,  hindered  and  prevented  the  same  from  being  deliv- 
ered to  the  plaintiffs  ;  ^:)er  quod,  &c.,  laying  special  damages. 

Pleas  :  first,  not  guilty.  Secondly,  that  the  plaintiffs  did  not  bar- 
gain with  the  defendants  to  buy  of  them,  nor  did  the  defendants  sell 
to  the  plaintiffs  the  said  wheat  in  the  declaration  mentioned,  at  the 
said  price  in  that  behalf  therein  mentioned,  in  manner  and  form  as  the 
plaintiffs  had  in  the  first  count  of  the  declaration  alleged ;  concluding 
to  the  country. 

Thirdly,  that  upon  the  said  25th  of  October,  1836,  in  the  first  count 
mentioned,  the  plaintiffs  bargained  M'ith  the  defendants  to  buy,  and 
the  defendants  then  sold  to  the  plaintiffs,  the  said  quantities  of  wheat 
in  the  said  first  count  mentioned,  at  and  for  the  price  in  that  behalf  in 
the  said  first  count  alleged,  upon  the  terms  and  conditions  for  the  pay- 
m  ent  thereof  as  follows :  (that  is  to  say)  that  the  payment  thereof 
should  be  made  by  bankers'  draft  on  London  at  two  months'  date,  to 
be  remitted  by  the  plaintiffs  to  the   defendants  upon  receij)t  by  the 


932  WILMSHURST   V.    BOWKER.  [CHAP.  TT. 

plaintiffs  of  the  invoice  and  bill  of  lading,  and  the  defendants  then 
caused  the  said  wheat  to  be  shipped  on  board  of  the  said  ship  or  vessel, 
and  the  possession  thereof  to  be  delivered  to  the  said  master  and  com- 
mander in  pursuance  of  the  said  bargain,  to  be  by  him  carried  to  Maid- 
stone in  the  county  of  Kent,  and  to  be  then  delivered  to  the  plaintiffs 
according  to  the  said  agreement,  and  the  terms  and  conditions  thereof; 
that  the  plaintiffs  upon  the  day  and  year  in  that  behalf  in  the  said  first 
count  alleged,  and  before  the  committing  of  the  said  supposed  griev- 
ance in  that  count  mentioned,  received  the.  said  invoice  and  bill  of 
lading,  as  in  the  said  declaration  alleged,  but  that  the  plaintiffs  did  not 
nor  would,  upon  the  receipt  of  the  said  invoice  and  bill  of  lading,  re- 
mit or  tender,  or  offer  to  remit  to  the  defendants  any  bankers'  draft  on 
London  for  the  payment  of  the  price  of  the  said  wdieat,  but,  on  receipt 
of  the  said  invoice  and  bill  of  lading,  wholly  failed  and  neglected  so  to 
do,  contrary  to  their  agreement  in  that  behalf  as  aforesaid ;  whereupon 
the  defendants  caused  and  procured  the  wheat  to  be  stopped,  and  then 
hindered  and  prevented  the  same  from  being  delivered  to  the  plain- 
tiffs, as  they  lawfully  might  for  the  cause  aforesaid.     Verification. 

The  plaintiffs  joined  issue  on  the  first  and  second  pleas,  and  replied 
de  injuria  to  the  third.-^ 

At  the  trial  of  the  cause  before  Maule,  J.,  at  the  adjourned  sittings 
in  London,  after  last  Michaelmas  term,  1839,  the  plaintiffs'  counsel 
opened  the  following  as  the  facts  of  the  case.  The  plaintiffs  are  corn- 
merchants  at  Cranbrook  in  Kent,  carrying  on  business  under  the  firm 
of  John  Wilmshurst  &  Son ;  and  are  also  partners  in  a  banking-house 
there  under  the  firm  of  Wilmshurst,  Hague,  &  Co.  The  defendants 
are  corn-merchants  at  Lynn,  in  the  county  of  Norfolk.  On  the  25th 
of  October,  1836,  the  defendants  contracted  to  sell  to  the  plaintiffs  a 
quantity  of  wheat  on  the  terms  mentioned  in  the  following  sold  note 
signed  by  the  defendants.  A  corresponding  bought  note  was,  at  the 
same  time,  signed  by  the  plaintiffs. 

Sold,  the  25th  of  October,  1836,  to  Messrs.  John  Wilmshurst  &  Son,  about 
300  quarters  of  wheat,  as  per  sample,  at  51s.  per  quarter  on  board.  Payment 
by  bankers'  draft  on  Loudon  at  two  months'  date,  to  be  remitted  on  receipt  of 
invoice  and  bill  of  lading. 

On  the  27th  of  October,  the  wheat,  which  consisted  of  310  quarters, 
was  shipped  on  board  of  a  vessel,  called  the  Ramsgate,  W.  Lightowler, 
master,  for  Maidstone,  deliverable  "  unto  order,  or  to  assigns,  he  or 
they  paying  freight,"  &c.  On  the  same  day  the  defendants,  in  pur- 
suance of  an  arrangement  to  that  effect  with  the  plaintiffs,  whereby 
the  defendants  were  to  charge  the  plaintiffs  with  the  premium  in  addi- 
tion to  the  cost  price  of  the  wheat,  gave  orders  to  their  agents  in 

1  The  statement  of  the  pleadings  has  been  materially  abbreviated.  —  Ed. 


SECT.  VI.]  WILMSHURST    V.    BOWKER.  933 

London  to  effect  an  insurance  on  the  wheat,  and  to  hand  the  policy 
to  the  plaintiffs.  The  defendants  forwarded  to  the  plaintiffs  the  bill 
of  lading,  indorsed  in  blank,  and  an  invoice  of  the  wheat  in  ft  letter, 
wherein  they  requested  the  plaintiffs  to  remit  to  them  the  amount  of 
the  invoice,  after  having  added  to  it  the  chai-ges  for  insurance.  The 
wheat  was  described  in  the  invoice  "  as  a  cargo  of  wheat  shipped 
on  board  the  Ramsgate,  W.  Lightowler,  master,  for  Maidstone,  by 
order,  and  for  the  account  and  risk,  of  Messrs.  John  Wilmshurst  & 
Son."  On  the  29th,  the  plaintiffs  received  the  policy  of  insurance  on 
the  wheat  from  the  defendants'  agents,  with  an  account  of  the  charges 
thereon,  amounting  to  £5  12s.  Id.  On  the  30th,  the  plaintiffs  trans- 
mitted to  the  defendants  by  post  a  bill  for  £796  2s.  \d.  (being  the 
invoice  price  of  the  wheat  and  the  charges  for  insurance),  in  the  fol- 
lowing form :  —  -«-       ^^. 

^  ^.     '^  Lynn,   October  27,  1836. 

£796  2s.   \d.  ^°  /  / 

Two  months  after  date  pay  to  our  grdwr^ven  hundred  and  ninety-six  pounds, 

two  shillings,  and  one  penny,  value«?ecfeL\(i^d. 

Messrs.  Wilmshurst  &  SoN,,;?']\f%ri4iants,  Cranbrook. 

By  return  of  post  on  the  1st  of  November  the  defendants  sent  back 
this  bill  to  the  plaintiffs,  inclosed  in  the  following  letter :  — 

Gentlemen,  — We  have  your  favor  of  the  30th  ult.,  inclosing  your  acceptance, 
which,  being  contrary  to  agreement,  we  return,  and  have  arranged  otherwise  for 
the  disposal  of  the  cargo. 

On  the  3d  of  November,  Wilmshurst  the  son  wrote  the  following 
reply:  — 

Gentlemen,  —  I  was  much  surprised  at  the  tenor  of  your  letter  this  morning. 
It  was  altogether  an  error  of  my  father's  in  sending  a  bill  drawn  on  us  as  mer- 
chants. However,  we  now  send  you  a  bankers'  acceptance,  and  trust  you  will 
see  the  wheat  forwarded  immediately. 

In  this  letter  a  bill  was  inclosed  as  follows :  — 

i»*        d'  Lynn,  October  27,  1836. 

£790  25.  Id.  '*'°*/"/ 

Two  months  after  date  pay  to  our  omeif"sq^en  hundred  and  ninety-six  pounds, 
two  shillings,  and  one  penny,  value  i^(^(^. 

Messrs.  Wilmshurst,  Hague^^'ai'^j^,  Bankers,  Cranbrook. 

By  the  same  post  the  younger  Wilmshurst  sent  a  second  letter  to  the 
defendants,  offering,  in  case  the  defendants  should  not  be  "agreeable" 
to  take  the  bill  last  sent,  to  pay  cash  for  the  wheat,  less  the  discount. 
The  defendants,  considering  the  second  draft  not  to  be  a  compliance 
with  the  terms  of  the  contract,  returned  it  also  in  a  letter,  repeating 
that  the  cargo  was  otherwise  disposed  of 

Immediately  after  they  returned  the  first  draft,  the  defendants  got 
VOL.  1.  60 


934  WILMSHURST   V.    BOWKER.  [CHAP.  II. 

the  wheat  back  from  Captain  Lightowler.  They  subsequently  Sold  it 
at  56s.  a  quarter. 

Upon  this  statement  of  facts  the  learned  judge  observed  that  the 
third  plea  must  be  taken  as  proved,  and  that  the  only  question  was, 
whether  such  plea  would  be  an  answer  to  the  action  after  verdict. 
It  was  thereupon  agreed  that  a  verdict  should  be  entered  for  the  plain- 
tiffs on  the  first  and  second  issues,  and  for  the  defendants  on  the  third, 
with  liberty  to  the  defendants,  in  the  event  of  the  plaintiifs  obtaining 
a  rule  for  judgment  no??,  obstante  veredicto  on  the  third  plea,  to  move 
that  the  verdict  might  be  entered  for  them  upon  the  second  issue,  on 
the  ground  of  the  misstatement  of  the  contract  in  the  declaration 
(the  omission  of  the  stipulation  as  to  the  terms  of  payment),  the  court 
to  have  the  same  power  of  amendment  as  the  judge  at  7iisi priiis. 

The  damages  were  assessed  contingently  at  £77. 

Butt  having  obtained  in  Hilary  term,  1840,  a  rule  nisi  for  judgment 
non  obstante  veredicto,  on  the  third  plea. 

Greenwood  now  showed  cause.  The  question  is,  whether  the  ven- 
dors were  bound  to  perform  their  part  of  the  contract,  although  the 
vendees  had  failed  to  fulfil  theirs.  It  is  clear  that  the  latter  had  no 
vio'ht  to  retain  the  invoice  and  the  bill  of  lading,  without  remitting  to 
the  former  a  bankers'  draft  on  London  ;  for  the  sale  of  the  wheat,  and 
the  sending  of  the  draft,  were  not  collateral,  but  were  to  be  contem- 
poraneous acts.  Brandt  v.  Bowlby  ^  is  very  similar  to  the  present  case, 
and  is  a  decisive  authority  for  the  defendants.^  .  .  .  That  case  is  even 
stronger  than  this ;  there  the  Avheat  was  shipped  in  a  vessel  chartered  by 
the  vendee,  but  here  the  wheat  was  purchased  in  bulk,  and  was  put  on 
board  of  a  general  ship.  The  principle  laid  down  in  Bi-andt  v.  Bowlby 
is  not  opposed  to  Walley  v.  Montgomery ;  ^  for  there  the  consignee  was 
ready  and  offered  to  perform  his  part  of  the  contract.  Here  the  right 
of  possession  would  not  vest  in  the  vendees  imtil  they  sent  the  bankers' 
draft,  and  on  their  failure  to  do  so,  the  vendors  had,  according  to  the 
authority  of  Langfort  v.  Administratrix  of  Tiler,'*  a  right  to  rescind 
the  contract.  It  will  be  contended  on  the  other  side,  that  the  delivery 
of  the  wheat  to  the  carrier  was  a  delivery  to  the  consignees,  and  that 
the  contract  could  not  afterwards  be  rescinded.  Brandt  v.  Bowlby, 
however,  is  a  direct  authority  against  that  proposition ;  and  Barber  v. 
Taylor  ^  shows  that  the  contract  was  still  in  fieri,  although  the  goods 
were  on  shipboard ;  and  that,  on  the  fiiilure  of  either  party  to  perform 
his  part  of  the  contract," it  might  be  determined.  According  to  Bishop 
V.  Shillito,®  even  if  the  wheat  had  been  actually  delivered  to  the  plain- 
tiffs, the  defendants,  on  the  non-performance  by  the  former  of  the  stipu- 


1  2  B.  &  Ad.  932.  2  The  learned  counsel  here  stated  that  case.  —  Ed. 

3  3  East,  585.  *  1  Salk.  113. 

5  5  M.  &  W.  527.  6  2  B.  &  Aid.  329,  n. 


SECT.  VI.]  WILMSHURST   V.    BOWKER.  935 

lations  of  the  sale,  might  have  maintained  trover  for  it.^  .  .  .  There 
are  many  authorities  to  sliow  that  the  mere  signing  of  tlic  bill  of  lading 
does  not  vest  the  goods  absolutely  in  the  vendee.  In  Mitchel  v.  Ede,'^ 
Lord  Denman,  speaking  of  the  nature  and  operation  of  the  bill  of 
lading,  says,  "As  between  the  owner  and  shipper  of  the  goods  and  the 
captain,  it  fixes  and  determines  the  duty  of  the  latter  as  to  the  person 
to  whom  it  is  (at  the  time)  the  pleasure  of  the  former  that  the  goods 
should  be  delivered.  But  there  is  nothing  final  or  irrevocable  in  its 
nature.  The  owner  of  the  goods  may  change  his  jjurpose  at  any  rate 
before  the  delivery  of  the  goods  themselves,  or  of  the  bill  of  lading  to 
the  party  named  in  it,  and  may  order  the  delivery  to  be  to  some  other 
person,  to  B.  instead  of  to  A."  Here,  according  to  the  terms  of  the  con- 
tract, it  was  necessary  for  the  goods  to  be  shipped  before  the  bill  of 
lading  could  be  obtained.  Reliance  will  be  placed  on  an  insurance 
having  been  effected  upon  the  goods  on  account  of  the  vendees;  but 
the  effect  of  that  was  to  vest  the  goods  in  them,  not  absolutely,  but 
only  subject  to  the  terms  indorsed  on  the  bill  of  lading.  It  was  held 
in  Bloxam  v.  Sanders,'''  that  although  a  vendee  of  goods  acquires  a  right 
of  property  by  the  contract  of  sale,  yet  he  does  not  acquire  a  right  of 
possession  to  the  goods  until  he  pays  or  tenders  the  price.  It  will  be 
said  that  the  liability  to  the  loss  in  case  of  the  destruction  of  the  goods 
is  the  true  criterion;  but  such  liability,  and  the  right  of  possession  and 
of  property,  are  not  convertible  terms.  In  Simmons  v.  Swift,*  Bayley, 
J.,  says,  "  Generally  speaking,  where  a  bargain  is  made  for  the  purchase 
of  goods,  and  nothing  is  said  about  payment  or  delivery,  the  property 
passes  immediately  so  as  to  cast  upon  the  purchaser  all  future  risk,  if 
nothing  further  remains  to  be  done  to  the  goods,  although  he  cannot 
take  them  away  without  paying  the  price.  If  any  thing  remains  to  be 
done  on  the  part  of  the  seller,  until  that  is  done  the  property  is  not 
changed." 

There  is  a  recognized  distinction  between  a  contract  for  the  sale  of 
a  specific  chattel,  and  for  the  delivery  of  a  quantity  from  the  bulk.  In 
the  former  case  the  property  passes ;  in  the  latter,  even  after  there  has 
been  an  appropriation  of  the  goods  by  the  vendors,  a  distinct  assent  on 
the  part  of  the  vendees  is  necessary  to  vest  the  goods  in  them.  Kohde 
V.  Thwaites,^  Atkinson  v.  Bell.*'  That  a  delivery  to  a  general  shij)  is 
not  equivalent  to  a  delivery  to  the  vendee,  is  clear  on  three  grounds : 
in  the  former  case,  there  is,  first,  the  right  to  stop  tn  transitu;  secondly, 
the  right  of  the  vendor  to  insist  on  the  vendee's  compliance  with  the 
terms  of  the  contract ;  and,  thirdly,  the  right  of  the  vendee  to  refuse 

1  The  learned  counsel  here  quoted  from  the  judgment  in  Wilmshurst  v.  Bowker, 
5Bing.  N.  C.  541.  — Ed. 

2  11  A.  &  E.  888,  3  P.  &  D.  513. 

3  4  B.  &  C.  941,  7  D.  &  R.  396.  *  5  B.  &  C.  857,  8  D.  &  R.  693. 
5  6  B.  &  C.  388,  9  D.  &  R.  293.  6  8  B.  &  C.  277,  2  M.  &  R.  292. 


936  WILMSHURST    V.    BOWKER.  [CHAP.  IT. 

the  goods,  as  not  being  according  to  the  contract.  The  effect  of  the 
shipment  of  the  goods  is  to  appropriate  the  goods  to  the  vendee  if  he 
assents  to  take  them ;  and  the  goods  are  at  his  risk,  not  because  the 
property  in  them  is  vested  in  him,  but  because  he  is  bound  to  accept 
them  if  they  answer  the  contract.^  .  .  .  Fearon  v.  Bowers  ^  shows  that 
what  took  phice  here  did  not  amount  to  an  absohite  dehvery  of  the 
wheat  to  the  phnintiffs.  In  Dixon  v.  Yates,^  Littledale,  J.,  lays  it  down, 
that  "  so  long  as  goods  sold  and  unpaid  for  remain  in  the  immediate 
possession  of  the  vendor,  he  may  refuse  to  deliver  them ;  and  if  they 
remain  in  the  possession  of  his  agent,  i.  e.  a  warehouseman  or  carrier, 
he  may  stop  them."  In  Feise  v.  Wray,*  Grose,  J.,  says,  "  This  is  a 
common  case  of  consignor  and  consignee,  where  the  former  has  not 
been  paid  for  his  goods,  and  he  gets  the  bill  of  lading  honestly  into 
his  possession,  and  stops  the  goods  while  they  are  in  transitu.  How, 
then,  can  we  say  that  he  is  a  tort-feasor,  and  guilty  of  a  conver- 
sion?" ^  ... 

It  is  clear,  upon  the  authorities,  that  if  there  is  stipulation  in  the 
contract  that  tlic  goods  are  to  be  paid  for  in  a  particular  way,  which 
stipulation  is  not  fulfilled  by  the  vendee,  the  vendor  may  rescind  the 
contract.  Here  the  invoice  and  the  bill  of  lading  were  only  delivered 
to  the  vendees  conditionally  on  their  sending  the  vendors  a  banker's 
draft  on  London,  and  upon  their  failing  to  do  so,  the  property,  or  at  all 
events  the  right  of  possession  to  the  goods,  never  vested  in  them. 

Butt,  in  support  of  the  rule.  This  case  rests  on  clear  principles  of 
law.  It  is  not  a  case  of  a  qualified,  but  of  an  absolute  bill  of  lading, 
which  was  delivered  to  the  vendees.  The  authorities,  therefore,  in 
which  the  bills  of  lading  were  qualified,  or  where  they  never  came  to 
the  hands  of  the  vendee,  are  inapplicable.  Neither  is  Brandt  v.  Bowlby 
in  point ;  for  there  the  vendee  had  at  first  refused  to  accept  the  goods. 
The  cases  cited  to  show  that  an  unpaid  vendor  may  stop  goods  in 
transitu,  although  the  property  in  the  goods  has  vested  in  the  vendee, 
will  not  be  disputed.  Here  the  goods  were  delivered  to  the  captain  of 
the  vessel,  who  received  them  at  the  risk  of  the  vendees.  Walley  v. 
Montgomery  is  a  direct  authority  for  the  plaintiffs.''  .  .  .  [Maule,  J. 
Here,  if  the  vendors  had  sent  the  bill  of  lading  by  a  clerk,  would  he 
have  been  bound  to  deliver  it  to  the  vendees  without  receiving  a  bank- 
er's draft  ?  Do  you  say  that  the  vendees  had  a  right  to  retain  the  bill 
of  lading  without  sending  such  draft  ?]     There  is  a  clear  distinction 

1  The  learned  counsel  here  quoted  from  the  opinion  of  Lord  Loughborough  in 
Mason  v.  Lickbarrow,  1  H.  Bl.  363.  — Ed. 

2  1  H.  Bl.  364,  n.  3  5  b.  &  Ad.  313,  2  N.  &  M.  177. 

4  3  East,  93,  101. 

5  The  learned  counsel  here  cited  Bohtliugk  v.  Inglis,  3  East,  381,  and  Barrow  v. 
Coles,  3  Campb.  92.  —Ed. 

6  The  learned  counsel  stated  that  case.  — Ed. 


SECT.  VI.]  WILMSHURST   V.    BOWKER.  937 

between  the  case  of  an  unpaid  vendor  still  retaining  the  goods,  and 
one  where,  as  here,  the  vendors  have  parted  with  the  possession.  The 
authorities  which  have  been  cited  to  show  that  tlie  right  of  property 
and  possession  of  the  goods  did  not  vest  in  the  vendee  until  payment 
of  the  price,  were  all  cases  where  the  vendors  still  retained  the  posses- 
sion of  the  goods.  In  Rohde  v.  Thwaites  and  Atkinson  v.  Bell,  the 
question  was,  whether  there  had  been  an  appropriation  or  acceptance 
of  the  goods,  so  as  to  satisfy  the  Statute  of  Frauds.  It  is  said  that  this 
was  not  a  sale  of  any  specific  wheat ;  but  it  is  submitted  that  it  was. 
[Maule,  J.  Suppose  the  defendants,  after  the  contract,  had  bought 
300  quarters  of  wheat,  and  had  sent  it  to  the  plaintiffs,  could  they  have 
refused  to  take  them  ?  This  is  a  general  contract,  and  comprehends 
therefore  any  300  quarters  of  wheat.]  If  any  thing  turns  on  this  point, 
there  is  nothing  in  the  case  to  show  that  this  wheat  was  part  of  a  larger 
quantity  in  bulk.  [Tindal,  C.  J.  It  has  a  httle  bearing,  though  not 
much,  on  the  question  whether  the  property  in  the  goods  passed  to  the 
vendees.]  Simmonds  v.  Swift  was  cited  to  show  that  the  liability  to 
bear  the  loss  of  goods  is  not  the  true  criterion  to  prove  whether  the 
property  has  vested  in  the  vendee ;  but,  although  not  conclusive,  it  is 
always  put  as  a  strong  test.  The  former  decision  in  this  case  is  no 
authority  against  the  plaintiffs;  for  the  lord  chief  justice  in  delivering 
the  judgment  of  the  court  abstained  from  deciding  the  present  ques- 
tion ;  observing  that  upon  the  then  state  of  the  record,  it  was  unneces- 
sary to  determine  "  whether  the  defendants,  upon  the  neglect  of  the 
plaintiffs  to  remit  the  draft  upon  the  London  bankers,  had  the  right 
forthwith  to  rescind  the  sale."  Mitchel  v.  Ede  was  a  very  different 
case  from  the  present.^  .  .  .  Fragano  v.  Long,^  Alexander  v.  Gardner," 
and  Tansley  v.  Turner,*  all  show  clearly  that  the  property  in  the  wheat 
passed  to  the  plaintiffs.  The  distinction  between  a  delivery  to  an 
agent  and  to  the  vendee  is  only  material  where  the  vendor  has  a  right 
to  stop  in  trmisiiu,  and  it  becomes  important  to  know  whether  the 
goods  have  arrived  at  their  ultimate  destination.  No  authority  has 
been  cited  in  which  it  has  been  held  that  a  vendor  may  stop  in  tran- 
situ, except  in  the  case  of  the  vendee's  insolvency  or  bankruptcy.  Here 
it  is  expressly  stated  in  the  declaration,  that  the  defendants  had  parted 
with  the  possession  of  the  wheat.  [Erskine,  J.  You  must  incorporate 
the  plea  with  the  declaration.]  The  plea  merely  alleges  that  there  was 
a  condition  in  the  contract ;  it  does  not  say  that  the  draft  was  to  be 
sent  before  the  delivery  of  the  goods,  but  only  on  the  receipt  of  the 
invoice  and  the  bill  of  lading.  It  is  consistent  with  the  contract  that 
the  bill  of  ladiuo-  was  to  be  transmitted  after  the  goods  had  been  de- 
spatched.     The  plea  docs  not  even  aver  that  a  reasonable  time  had 

^  The  learned  counsel  here  cited  Dutton  v.  Solomonson,  3  B.  &  P.  582. —  Ed. 
2  4  B.  &  C.  219,  6  D.  &  11.  283.  3  i  New  Cases,  671,  1  Scott,  630. 

*  2  New  Cases,  151,  2  Scott,  238. 


938  WILMSHURST   V.    BOWKER.  [CHAP.  11. 

elapsed  for  sending  the  draft;  neither  does  it  state  when  the  goods 
were  stopped.  It  is  submitted  that  there  was  here  a  perfect  delivery 
in  law  of  the  goods.  It  is  admitted  that  the  plaintiffs  would  have  been 
liable  in  case  of  loss,  and  there  is  nothing  in  the  contract  to  show  that 
the  plaintiffs  were  not  to  have  possession  of  the  goods  previously  to 
sending  the  bankers'  draft ;  for  the  meaning  of  the  contract  appears  to 
be,  that  it  should  be  sent  after  the  receipt  of  the  bill  of  lading.  The 
conti'act  was  substantially  for  the  purchase  of  goods  at  two  months' 
credit.  No  right  of  the  vendors  to  stop  the  goods  is  shown  on  the 
record.  Their  only  remedy  against  the  plaintiffs  for  not  sending  the 
draft  was,  by  bringing  an  action  upon  the  contract. 

Cur.  adv.  vxdt. 

TiNDAL,  C.  J.,  now  delivered  the  judgment  of  the  court.^  .  .  .  The 
question  is,  whether  after  the  sale  of  the  wheat  to  the  plaintiffs,  and 
such  constructive  delivery  thereof  to  them  as  is  stated  in  the  declara- 
tion, the  defendants  were  justified  in  stopping  the  Avheat  in  transitu, 
ujjon  the  ground  set  forth  in  the  plea. 

That  the  defendants  cannot  justify  the  stoppage  of  this  wheat  in 
transitu,  upon  the  ordinary  ground  on  which  such  right  is  exercised, 
may  be  readily  admitted.  The  ordinary  right  of  countermanding  the 
actual  delivery  of  goods  shipped  to  a  consignee,  is  limited  to  the  cases 
in  which  the  bankruptcy  or  insolvency  of  the  consignee  has  taken 
place.  The  law  as  to  this  point  is  very  clearly  laid  down  by  Lord 
Stowell,  in  the  case  of  the  Constantia,'^  and  in  many  cases  in  the  com- 
mon law  reports ;  *  and  as,  in  the  present  case,  the  first  count  directly 
alleges  that  the  plaintiffs  were  neither  bankrupt  nor  insolvent  at  the 
time  when  the  stoppage  took  place,  and  as  no  traverse  is  taken  upon 
this  allegation,  it  must  be  taken  that  the  common  ground  of  stopping 
in  transitu  is  wanting  in  the  present  case.  But  the  question  in  this 
case  is,  whether,  under  the  particular  terms  of  this  contract,  the  con- 
signors have  not  reserved  to  themselves  the  power  of  withholding  the 
actual  delivery  of  the  wheat,  until  the  consignees  should  comply  with 
the  mode  of  payment  stipulated  by  the  contract.  There  is  no  doubt 
that  the  property  in  the  wheat  passed  to  the  plaintiffs  under  the  con- 
tract, iipon  which  point  much  of  the  argument  before  us  has  turned ; 
but  the  question  is  as  to  the  intention  of  the  parties,  as  evidenced  by 
the  contract,  with  reference  to  the  delivery  of  possession.  And  we  are 
of  opinion  that  the  intention  of  the  parties,  under  this  contract,  was, 
that  the  consignors  should  retain  tlie  power  of  withholding  the  actual 
delivery  of  the  wheat,  in  case  the  consignees  failed  in  remitting  the 
bankers'  draft,  not  upon  the  delivery  of  the  wheat,  but  on  the  receipt 
of  the  bill   of  lading,  which,  in  the  ordinary  course  of  business,  would 

1  His  lordship's  statement  of  the  case  has  been  omitted.  —  Ed. 

2  6  Rob.  Adm.  Rep.  321.  3  Vide  2  N.  &  M.  644. 


SECT.  VI.]  WILMSHURST   V.    BOWKER.  939 

precede  the  arrival  or  delivery  of  the  wheat.  And  we  think  the  object 
of  making  the  receiving  of  the  invoice  and  bill  of  lading  and  the  remit- 
ting of  the  bankers'  draft  to  be  simultaneous  or  concuiTent  acts  could 
have  been  no  other  than  to  afford  security  to  the  consignors,  so  that  in 
case  the  consignees  failed  in  the  performance  of  the  latter  stipulation, 
the  consignors  might  withhold  the  actual  delivery  of  the  cargo.  When 
goods  are  sold,  and  nothing  is  said  about  the  time  of  delivery  or  the 
time  of  payment,  the  seller  is  bound  to  deliver  them  whenever  they  are 
demanded  on  payment  of  the  price ;  "  but  the  buyer,"  as  is  observed  by 
Mr.  Justice  Bayley  in  Bloxam  v.  Sanders,^  "has  no  right  to  have  the  pos- 
session of  the  goods  until  he  pays  the  price."  In  the  present  case,  it  is 
part  of  the  stipulation  that  something  shall  l)e  done  by  the  buyer  before 
the  time  when,  in  the  usual  course  of  business,  the  goods  can  be  actu- 
ally delivered ;  namely,  u]>on  the  handing  over  of  the  bill  of  lading  to 
the  buyers,  which  ordinarily  ])recedes  the  arrival  of  the  ship ;  so  that 
the  right  to  the  possession  of  the  goods  could  not  vest  until  the  buyers 
either  remitted,  or  tendered,  or  offered  to  remit  the  bankers'  draft  in 
payment.  And  we  think  this  view  of  the  case  not  inconsistent  with 
the  judgment  of  the  court  in  Walley  v.  Montgomery ;  ^  in  which,  al- 
though it  was  held  that  the  consignors  had  no  right  to  stop  in  transitu, 
it  is  to  be  observed,  that  the  consignees  had  never  refused  to  accept  the 
bills  which  had  been  drawn  on  them  for  the  price  of  the  timber,  but,  on 
the  contrary,  Avere  ready  and  offered  so  to  do ;  nor,  indeed,  docs  it  ap- 
pear in  that  case  to  have  been  a  condition  that  the  bills  should  be 
accepted  at  any  certain  time  before  the  actual  delivery.  In  the  j^resent 
case  we  hold  that  upon  the  proper  construction  of  the  plea,  the  con- 
tract of  sale  entered  into  between  the  parties  was  conditional  as  to  the 
right  of  possession  of  the  cargo ;  and  that  the  condition  not  having 
been  perlbrmed  on  the  part  of  the  plaintiffs,  the  consignees,  the  defend- 
ants, the  consignors,  were  justified  in  preventing  the  wheat  from  being 
delivered.  Mule  discharged. 

The  plaintiffs  brought  a  writ  of  en'or  upon  the  foregoing  judgment, 
and  assigned  errors  which  were  argued  in  the  Exchequer  Chamber 
before  Lord  Abin'ger,  C.  B.,  Pakke,  B.,  Pattesox,  J.,  Aldekson,  B., 
Coleridge,  J.,  Rolfe,  B.,  Wightmax,  J. 

M.  B.  Hill  (with  whom  was  Butt),  for  the  plaintiffs.'^  .  .  .  The 
first  question  is,  whether,  after  the  constructive  delivery  stated  in 
the  declaration,  the  defendants  could  stop  the  wheat  in  transitu,  ujton 
the  grounds  set  forth  in  the  third  ])lea.  That  the  i>roperty  in  the 
Avheat  vested  in  the  plaintiffs,  is  clear;  and  the  sto])page  cannot  be 
justified  on  the  ordinary  ground,  which,  as  stated  in  the  judgment  ol 

1  4  B.  &  C.  948,  7  D.  &  R.  405.  2  3  East,  585. 

^  The  learned  eounsel's  statement  of  the  case  lias  been  omitted.  — Ed. 


940  WILMSHURST    V.    BOWKER.  [CHAP.  II. 

the  court  below,  is  limited  to  cases  of  bankruptcy  or  insolvency  in  the 
vendee.  The  contract  between  the  parties  cannot  be  put  higher  than 
this,  —  that  the  defendants  were  not  bound  to  part  with  the  possession 
of  the  bill  of  lading  until  they  had  received  a  banker's  draft.  [Pahkb, 
B.  They  might  have  indorsed  the  bill  of  lading  specially,  or  they 
might  have  ti-ansmitted  it  to  an  agent,  with  instructions  to  hand  it  over 
to  the  plaintiifs  against  the  banker's  draft.]  By  the  general  indorse- 
ment and  delivery  of  the  bill  of  lading,  the  defendants  waived  the  con- 
dition and  destroyed  their  right  to  stop  in  transitu.  But  the  provision 
as  to  the  banker's  draft  was  inserted  merely  for  the  purpose  of  fixing 
the  terms,  and  the  time  of  payment.  It  was  not  intended  to  operate 
as  a  condition  precedent.  Upon  the  defendants'  construction  there 
would  be  an  inconsistency  in  the  terms  of  the  contract :  the  banker's 
draft  could  not  be  sent  until  after  the  arrival  of  the  bill  of  lading  and 
invoice.  [Lord  Abingee,  C.  B.  An  uncertain  sum,  viz.,  the  amount 
of  the  insurance,  was  to  be  added  to  the  invoice  price.]  The  court 
below  say :  "  We  are  of  opinion  that  the  intention  of  the  parties  under 
this  contract  was,  that  the  consignors  should  retain  the  power  of  with- 
holding the  actual  delivery  of  the  wheat,  in  case  the  consignees  failed 
in  remitting  the  banker's  draft,  not  uj^on  the  delivery  of  the  wheat,  but 
on  the  receipt  of  the  bill  of  lading,  which,  in  the  ordinary  course  of  busi- 
ness, would  precede  the  arrival  or  delivery  of  the  wheat.  And  we  think 
the  object  of  making  the  receiving  of  the  invoice  and  bill  of  lading,  and 
the  remitting  of  the  banker's  draft,  to  be  simultaneous  or  concurrent 
acts,  could  have  been  no  other  than  to  afford  security  to  the  consignors ; 
so  that,  in  case  the  consignees  failed  in  the  performance  of  their  stipu- 
lation, the  consignors  might  withhold  the  actual  delivery  of  the  cargo." 
That  clearly  is  a  misconception  of  the  true  nature  of  the  contract. 
[Paeke,  B.  The  property  vested  in  the  plaintiffs  on  the  delivery  of 
the  wheat  to  Lightowler.]  The  delivery  to  Lightowler,  and  the  trans- 
mission of  the  bill  of  lading  indorsed,  gave  the  plaintiffs  both  the  prop- 
erty and  the  possession,  subject  to  be  devested  in  the  event  of 
bankruptcy  or  insolvency,  —  by  analogy  to  the  doctrine  of  revendica- 
tion.^  If  the  master  refused  to  redeliver  the  wheat  to  the  defendants, 
they  could  have  had  no  remedy  against  him.  (Here  he  was  stopped 
by  the  court.) 

Greenxoood^  for  the  defendants.  The  contract  was  a  contract  of  sale 
upon  special  terms  which  have  not  been  com])lied  with.  The  rule  that 
a  delivery  to  a  carrier  for  the  account  and  risk  of  the  vendee,  is  a  de- 
livery to  the  vendee  himself,  subject  to  the  vendor's  right  to  stop  the 
goods  in  transitu  in  case  of  insolvency  or  bankruptcy,  applies  only 
where  there  are  no  special  terms  of  payment.  This  case  has  been 
twice  before  the  Court  of  Common  Pleas,  and  on  both  occasions  it  was 

*  See  the  note  to  Westzynthius  In  re,  2  Nev.  &  M.  650. 


SECT.  VI.]  WILMSHURST    V.    BOWKER.  941 

held  that  the  intention  of  the  parties,  to  be  collected  from  the  terras 
of  the  contract,  was  that  the  remitting  of  the  banker's  draft  and  the 
receipt  of  the  bill  of  lading  and  invoice  should,  at  least,  be  simultane- 
ous acts.  A  third  party,  to  Avhom  the  bill  of  lading  had  been  indorsed 
for  value,  would  have  been  entitled  to  the  possession  of  the  wheat  not- 
withstanding the  plaintiffs  had  failed  to  remit  the  banker's  draft ;  but 
it  is  otherwise  as  between  the  original  parties.  [Lord  Auixgkr,  C.  B. 
No  doubt,  where  goods  are  sold  upon  a  condition,^  the  property  does 
not  vest  until  the  condition  is  performed.  Alderson",  B.  You  infer 
that,  when  the  plea  does  not  state  that  it  was  part  of  the  contract  that 
the  property  should  not  vest  in  the  vendees  until  they  had  remitted  a 
banker's  draft.  Pakke,  B.  Or  rather  a  right  to  retake  the  goods  on 
breach  of  a  condition  subsequent.]  In  Brandt  v.  Bowlby,-  the  facts 
were  very  much  like  those  of  the  present  case,  and  it  w\as  held  that  by 
reason  of  the  breach  by  the  vendees  of  their  engagement  to  accept 
bills  for  the  price,  the  property  did  not  vest.  [Lord  Abinger,  C.  B. 
There  the  goods  remained  in  the  hands  of  the  vendor's  agent.  Parke, 
B.®  .  .  .  Here  the  goods  were  shipped  upon  the  account  and  risk  of 
the  plaintiffs,  and  were  made  deliverable  to  them.  If  I  drew  any 
inference  from  the  plea,  it  would  be  that  which  the  plaintiffs  draw.] 
The  sale  being  subject  to  a  condition  which  has  never  been  performed, 
the  plaintiffs  never  had  the  right  of  possession.  If  the  wheat  had 
come  into  the  actual  possession  of  the  plaintiffs,  the  plaintiffs  might 
have  maintained  trover.  Bishop  v.  Shillito.-*  Whalley  u.  Montgomery* 
is  the  converse  of  this  case. 

Lord  Abingek,  C.  B.  We  are  quite  unanimoiis  ;  and,  however 
reluctant  we  may  be  to  overturn  a  considered  judgment  of  the  Court 
of  Common  Pleas,  we  find  ourselves  unable  to  come  to  any  other  con- 
clusion than  that  the  plaintiffs  are  entitled  to  recover.  We  accede  to  the 
general  principle  laid  down  by  the  court  below ;  and  if  the  facts  had 
been  before  a  jury,  we  are  not  prepared  to  say  that  they  might  not 
have  drawn  the  inference  that  the  remitting  of  a  banker's  draft  was  a 
condition  precedent  to  the  vesting  of  the  property  in  the  wheat  in  the 
plaintiffs.  But  we  draw  no  such  inference  from  what  appears  upon  the 
record.  The  delivery  of  the  bill  of  lading  and  the  remitting  the  bank- 
er's draft  could  not  be  simultaneous  acts;  the  plaintitts  must  have 
received  the  bill  of  lading  and  invoice  before  they  could  send  the  draft. 
The  default  on  the  part  of  the  plaintiffs  amounts  to  no  more  than  this, 
that  they  have  omitted  to  perform  one  part  of  their  contract. 

Alderson,  B.  It  is  quite  consistent  with  the  decision  of  the  Court 
of  Common  Pleas  that  the  remitting  the  banker's  draft  was  a  condition 
subsequent.  Judgment  reversed. 

1  Q.  d.  iijion  a  condition  precedent.  '^  2  B.  &  Ad.  932. 

3  His  lordship  here  stated  the  case  of  Ogle  v.  Atkinson,  5  Taunt.  759.  — Ed. 

*  2  B.  &  Aid.  329,  n.  *  3  East,  585. 


[chap.  II. 


''V'    ^    |.l/|t42  /      \V  "^AIT    y.   BAKER. 

y^^     ii  '       /J,     ^  WAIT  AND  Another   v.  BAKER. 

•^/  '  'lL      J        In  THE  Exchequer,  February  5  &  7,  1848. 

.    [Reported  in  2  Exchequer  RepoHs,  1.] 

Trover  for  500  quarters  of  barley.  Pleas,  not  guilty,  and  not  pos- 
sessed ;  upon  which  issue  was  joined. 

At  the  trial,  before  Williams,  J.,  at  the  last  spring  assizes  for  Somer- 
setshire, the  following  foots  appeared :  The  defendant,  a  corn-factor  at 
Bristol,  had  occasional  dealings  with  a  person  of  the  name  of  Leth- 
brido-e,  who  was  also  a  corn-factor  at  Plymouth,  and  on  the  5th  of  De- 
cember,  1846,  Avrote  to  him  the  following  letter:  — 

I  hear  that  the  crop  of  barley  in  the  south  of  Hampshire  is  good  this  year, 
and  that  at  Kingsbridge  the  price  is  low,  compared  with  the  markets  further 
eastward.  If  you  are  doing  any  thing  in  the  article  this  season,  and  can  make 
me  an  offer  of  a  cargo,  I  have  no  doubt  but  we  may  have  a  transaction.  Let  me 
hear  from  vou  in  due  course.     Send  me  sample  in  letter,  describing  weight,  tfec. 


To  which  Lethbridge  wrote  the  following  answer  on  the  9th  of  that 
month :  — 

I  beg  to  inform  you  that  I  have  not  yet  commenced  buying  barley  in  Kings- 
bridge  market,  farmers  there  standing  out  for  10s.  a  bag.  After  Saturday's 
market  I  will  send  you  a  sample  and  an  offer,  if  possible. 

On  the  14th  Lethbridge  wrote  tbe  following  letter  to  the  defend- 
ant:— 

I  herewith  hand  you  samples  of  common  and  chevalier  barley  of  the  neighbor- 
hood of  Kingsbridge,  and  will  engage  to  sell  you  from  400  to  500  quarters  f.  o.  b. 
barley  at  Kingsbridge,  or  neighboring  port,  at  40s.  per  quarter  common,  and 
42s.  per  quarter  chevalier,  in  equal  quantities,  for  cash,  on  handing  bills  of  lad- 
ing, or  acceptance  at  two  months'  date,  adding  interest  at  the  rate  of  £5  per 
cent  per  annum,  subject  to  your  reply  by  course  of  post. 

On  the  16th,  the  defendant  returned  the  following  reply :  — 

I  beg  to  accept  your  offer  of  250  quarters  of  chevalier  barley,  at  42s.  per 
quarter,  and  250  quarters  common,  at  40s.  per  quarter  f.  o.  b.,  for  cash  pay- 
ments, on  receipt  of  bill  of  lading  and  invoice,  or  acceptance  at  two  months' 
date,  adding  interest  at  the  rate  of  £5  per  cent  per  annum,  subject  to  your 
reply  by  course  of  post. 

On  the  18th,  Lethbridge  wrote  the  defendant  as  follows:  — 

Your  favor  of  the  16th  came  duly  to  hand,  and  note  by  it  your  acceptance  of 
my  offer  of  barley.  I  suppose  I  am  to  take  up  a  vessel  at  the  best  possible  freight 
I  can  get  her  for.  Please  instruct  me  in  this,  and  say  if  for  Bristol  or  any  other 
port. 


SECT.  VI.]  WAIT   v:  BAKER.  943 

On  the  19th  the  defendant  Avrote  in  answer:  — 

T  took  it  for  granted  that  you  would  got  a  vessel  for  the  barley  I  have  bought 
of  you  f.  o.  b.,  and  therefore  did  not  instruct  you  to  seek  one.  I  trust  that  you 
will  be  particular  to  select  a  good  ship,  and  at  the  lowest  possible  freight,  for  this 
port ;  and,  above  all,  take  care  that  the  quality  of  the  barley  is  fully  equal  to 
sample.  A  party,  who  will  take  part  of  it,  is  extremely  particular  in  these 
matters  ;  and  the  samples  are  sealed  and  held  in  the  custody  of  a  tliinl  party. 
Please  to  advise  when  you  have  taken  up  a  vessel,  with  particulars  of  the  port 
she  loads  in,  so  that  I  may  get  insurance  done  correctly. 

After  some  further  correspondence  respecting  the  amount  of  the 
fi-eight,  Lethbridge  wrote  on  the  23d  to  the  defendant :  — 

I  now  send  you  copy  of  charter-party  of  the  Emerald,  which  vessel  will  sail 
for  the  port  of  loading  to-day  or  to-morrow,  and  I  will  lose  no  time  in  getting 
her  loaded. 

The  defendant,  by  letter  dated  the  24th,  acknowledged  the  receipt 
of  the  charter-party  (not  under  seal),  which  was  dated  on  the  22d, 
and  was  in  the  name  of  Lethbridge,  to  load  at  Dartmouth,  a  portion 
to  be  filled  up  at  Salcombe,  to  proceed  to  Bristol  or  any  other  port. 

On  the  28th,  Lethbridge  wrote  to  the  defendant :  — 

The  Emerald  will  commence  loading  to-day.  I  hope  to  hand  you  bill  of 
lading  in  the  course  of  the  week. 


And  again  on  the  1st  of  January,  1847  :  — 

I  hope  to  be  able  to  send  you  invoice  and  bill  of  lading  of  Emerald  on  Tues- 
day or  Wednesday. 

And  on  the  6th  of  January  he  wrote  to  the  defendant  as  follows :  — 

The  Emerald  is  nearly  loaded ;  expect  the  bill  of  lading  to-day  or  to-morrow. 
I  expect  to  be  in  Exeter  on  Friday,  when  it  is  very  likely  I  shall  run  down  and 
see  you. 

The  vessel  was  loaded  with  common  and  chevalier  barley ;  and  on 
the  7th  of  January,  Lethbridge  received  from  the  master  the  bill  of 
lading  of  the  cargo,  which  was  therein  expressed  to  be  deliverable  at 
Bristol  to  the  order  of  Lethbridge  or  assigns,  paying  the  freight  as 
per  charter.  On  the  8th,  Lethbridge  called  upon  the  defendant  at 
Bristol  early  in  the  morning,  and  left  at  his  counting-house  the  invoice 
and  an  unindorsed  bill  of  lading.  At  a  subsequent  part  of  the  day, 
Lethbridge  called  again  upon  the  defendant,  when  the  defendant  raised 
some  objections  to  the  quality  of  the  cargo,  and  asserted  that  it  was 
inferior  to  the  samples;  he  also  threatened  he  would  take  the  cargo,  but 
sue  Lethbridge  for  eight  shillings  a  quarter  difference.  After  some 
further  dispute  upon  the  matter,  the  defendant  offered  Lethbridge  the 
amount  of  the  cargo  in  money,  and  said  that  he  accepted  the  cargo. 
Lethbridge,  however,  refused  to  accept  the  money  and  to  indorse  the 


944  "WAIT   V.    BAKER.  [CHAP.  II. 

bill  of  lading  to  the  defendant ;  but  took  the  bill  of  lading  from  the 
counter  and  immediately  proceeded  to  the  plaintiffs',  who  were  corn- 
factors,  and  had  a  house  of  business  in  the  neighborhood,  and  indorsed 
the  bill  of  lading  to  them,  and  received  an  advance  upon  it.  The 
market  at  that  time  had  risen  considerably.  The  Emerald  arrived  on 
the  16th,  and  on  the  18th  the  defendant  proceeded  on  board  and 
claimed  the  cargo  as  the  owner,  and  unshipped  1240  bushels  of  the 
barley,  worth  £422  145. ;  but  the  plaintiffs,  coming  on  board  during 
the  time  the  cargo  was  being  unshipped,  presented  the  bill  of  lading 
and  obtained  the  rest  of  the  cargo,  and  paid  the  captain  the  freight. 

The  jury  found  that  the  defendant  did  not  refuse  to  accept  the  barley 
from  Lethbridge  ;  that  the  tender  was  unconditional ;  and  that  Leth- 
bridge  was  not  an  agent  intrusted  with  the  bill  of  lading  by  the  de- 
fendant. His  lordship  thereui^on  directed  a  verdict  to  be  entered  for 
the  plaintiffs  for  £422  14s.,  reserving  leave  to  the  defendant  to  enter  a 
verdict  for  him. 

A  rule  to  show  cause  having  been  obtained, 

Crowder,  Barstoio,  and  Greemoood  appeared  to  show  cause,  but  were 
stopped  by  the  court,  who  called  upon 

JSutt  and  Montague  Smith,  in  support  of  the  rule.  In  this  case  the 
property  in  the  barley,  which  came  to  Bristol  in  the  Emerald,  passed 
to  the  defendant.  Although,  in  general,  it  is  necessary,  in  order  to  pass 
the  property  in  goods  shipped  on  board  a  vessel,  that  the  bill  of  lading 
should  be  indorsed  to  the  party  claiming  the  property,  that  is  not  the 
only  mode  as  betAveen  vendor  and  vendee,  where  they  are  the  parties 
to  the  original  contract.  And  payment  is  not  a  condition  precedent. 
Here  the  barley  was  put  on  board  at  the  risk  of  the  vendee,  —  the 
vessel  was  hired  by  him,  although  the  charter-party  was  made  in  Leth- 
bridge's  name ;  and  it  is  submitted  that  he  was  the  defendant's  agent 
for  this  puri)0se.  The  vendee  would  have  been  liable  for  freight;  the 
contract,  although  made  for  the  vendee  by  the  vendor,  was,  in  this 
respect,  the  same  as  if  it  had  been  made  by  a  third  party.  The  charter- 
party  was  not  under  seal.  In  a  letter  of  the  19th  of  December,  the 
defendant  requested  Lethbridge  to  get  a  proper  vessel,  in  order  that 
he  (the  vendee)  "  might  get  the  insurance  done  correctly."  It  is  clear 
that  the  intention  of  the  parties  was,  that  the  vessel  should  be  the 
vendee's,  and  that  the  risk  should  be  his.  The  cargo  was  to  be  free  on 
board.  There  was,  therefore,  a  delivery  on  board  the  defendant's  ship, 
and  an  appropi'iation  of  the  cargo.  [Parke,  B.  At  what  moment  was 
the  acceptance  of  the  cargo  complete  ?  Appropriation  may  mean  that 
there  has  been  a  selection,  or  an  agreement  that  a  particular  cargo  shall 
be  the  thing  transferred.  Property  never  passes  unless  there  be  some 
agreement  to  the  effect  that  the  property  shall  pass.  By  the  English 
law,  property  may  pass  by  an  agreement ;  but  the  rule  is  otherwise  in 
the  Roman  law.     The  property  surely  has  passed  in  the  present  case, 


SECT.  VI.]  WAIT    V.    BAKER.  945 

by  the  indorsement  of  the  bill  of  lading,  to  the  phiintifis.]  Tlie  lien  of 
Lethbridge  was  at  an  end  when  the  money  was  tendered  at  Bristol, 
and  when  the  defendant  said,  "  I  accept  that  particular  cargo  of  500 
quarters."  [Rolfe,  B.  The  jury  do  not  find  an  unconditional  tender 
and  acceptance  of  the  money.  Aldekson,  B.  It  is  clear  that  what 
took  place  at  Bristol  was  not  sufficient  to  pass  the  property.  You  must 
therefore  show,  independently  of  that  proceeding,  that  the  property 
passed ;  for  the  defendant  there  disputed  the  quality  of  the  corn,  and 
the  parties  did  not  agree  as  to  the  thing.]  ^  .  .  . 

Parice,  B.     I  am  of  opinion  that  the  rule  in  the  present  case  oiight 
to  be  discharged.     It  is  perfectly  clear  that  the  original  contract  be- 
tween the  parties  was  not  for  a  specific  chattel.     That  contract  would 
be  satisfied  by  the  delivery  of  any  500  quarters  of  corn,  provided  the 
corn  answered  the  character  of  that  which  was  agreed  to  be  delivered. 
By  the  original  contract,  therefore,  no  property  passed ;  and  that  mat- 
ter admits  of  no  doubt  whatever.     In  order,  therefore,  to  depiive  the 
original  owner  of  the  property,  it  must  be  shown  in  this  form  of  action 
—  the  action  being  lor  the  recovery  of  the  property  —  that,  at  some 
subsequent  time,  the  property  passed.     It  may  be  admitted,  that  if 
goods  are  ordered  by  a  person,  although  they  are  to  be  selected  by  the 
vendor,  and  to  be  delivered  to  a  common  carrier  to  be  sent  to  the 
person  by  whom  they  have  been  ordered,  the   moment  the   goods, 
which  have  been  selected  in  ]:)ursuance  of  the  contract,  are  delivered  to 
the  carrier,  the  carrier  becomes  the  agent  of  the  vendee,  and  such  a  de- 
livery amounts  to  a  delivery  to  the  vendee ;  and  if  there  is  a  binding 
contract  between  the  vendor  and  vendee,  either  by  note  in  writing,  or 
by  part  payment,  or  subsequently  by  part  acceptance,  then  there  is  no 
doubt  that  the  property  passes  by  such  delivery  to  the  carrier.     It  is 
necessary,  of  course,  that  the  goods  should  agree  with  the  contract.   In 
this  case,  it  is  said  that  the  delivery  of  the  goods  on  shipboard  is  equiv- 
alent to  the  delivery  I  have  mentioned,  because  the  ship  was  engaged 
on  the  part  of  Lethbridge  as  agent  for  the  defendant.     But  assuming 
that  it  was  so,  the  delivery  of  the  goods  on  board  the  sliip  was  not  » 
'Helivery  of  them  to  the  defendant,  but  a  delivery  to  the  captain  of  the 
vessel,  to  be  carried  under  a  bill  of  lading,  and  that  bill  of  lading  indi- 
cated the  person  for  whom  they  were  to  be  carried.     By  that  bill  of 
lading  the  goods  were  to  be  carried  by  the  master  of  tlie  vessel  for  and 
on  account  of  Lethbridge,  to  be  delivered  to  him  in_case„  the  bill  of 
lading  should  not  be  assigned,  and  if  it  should,  then  to  the  assignee. 
The  goods,  therefore,  still  continued  in  the  possession  of  the  master  of 
the  vessel,  not  as  in  the  case  of  a  common  cari'ier,  but  as  a  person  car- 
ryifig  them  on  behalf  of  Lethbridge.     There  is  no  breacli  of  duty  on 

1  The  learned  counsel  licre  stated  the  case  of  Ogle  v.  Atkinson,  5  Taunt.  759 ;  to 
which  Alderson,  B.,  said  :  "  There  the  ship  was  the  plaintiff's ;  the  indorsement  of  the 
bill  of  lading  was  an  afterthought."  —  Ed. 


946  WAIT   V.   BAKER.  [CHAP.  II. 

the  part  of  Letlibridge,  as  he  stipulates  under  the  original  contract  that 
the  price  is  to  be  paid  on  the  delivery  of  the  bill  of  lading.    It  is  clearly 
contemplated  by  the  original  contract,  that,  by  the  bill  of  lading,  Leth- 
bridge  should  retain  control  over  the  property.     It  seems  to  me  to 
follow  that  the  delivery  of  the  500  quarters  to  the  captain,  to  be  cTe^ 
livered  to  Lethbridge,  is  not  the  same  as  a  delivery  of  500  quarters  to* 
a  common  carrier  by  order  of  the  consignee.     The  act  of  delivery, 
therefore,  in  the  present  case,  did  not  pass  the  property.     Then,  what 
subsequent  act  do  we  find  which  had  that  effect?     It  is  admitted  by 
the  learned  counsel  for  the  defendant,  that  the  property  does  not  pass, 
unless  there  is  a  subsequent  appropriation  of  the  goods.     The  word 
appropriation  may  be  understood  in  different  senses.     It  may  mean  a 
selection  on  the  part  of  the  vendor,  where  he  has  the  right  to  choose 
the  article  which  he  has  to  supply  in  performance  of  his  contract ;  and 
the  contract  will  show  when  the  word  is  used  in  that  sense.     Or  the 
word  may  mean  that  both  parties  have  agreed  that  a  certain  article 
\j     shall  be  delivered  in  pursuance  of  the  contract,  and  yet  the  property 
^  jcnay  not  pass  in  either  case.     For  the  purpose  of  illustrating  this  posi- 
A  jftion,  suppose  a  carriage  is  ordered  to  be  built  at  a  coachmaker's ;  he 
A\  f  may  make  any  one  he  pleases,  and,  if  it  agree  with  the  order,  the  party 
1  i,;    is  bound  to  accept  it.     Now  suppose  that,  at  some  period  subsequent 
^     to  the  order,  a  further  bargain  is  entered  into  between  this  party  and 
the  coach-builder,  by  which  it  is  agreed  that  a  particular  carriage  shall 
be  delivered.     It  would  depend  upon  circumstances  whether  the  prop- 
erty passes,  or  whether  merely  the  original  contract  is  altered  from  one 
which  would  have  been  satisfied  by  the  delivery  of  any  carriage  answer- 
ing the  terms  of  the  contract,  into  another  contract  to  supply  the  par- 
ticular carriage,  —  which,  in  the  Roman  law,  was  called  obligatio  certi 
corporis,  where  a  person  is  bound  to  deliver  a  particular  chattel,  but 
where  the  property  does  not  pass,  as  it  never  did  by  the  Roman  law, 
until  actual  delivery  ;  although  the  property  after  the  contract  remained 
at  the  risk  of  the  vendee,  and,  if  lost  without  any  fault  in  the  vendor, 
the  vendee,  and  not  the  vendor,  was  the  sufferer.     The  law  of  England 
is  different :  here  property  does  not  pass  until  there  is  a  bargain  with 
respect  to  a  specific  article,  and  every  thing  is  done  which,  according 
to  the  intention  of  the  parties  to  the  bargain,  was  necessary  to  transfer 
the  property  in  it.     "  Appropriation "  may  also  be  used  in  another 
sense,  and  is  the  one  in  which  Mr.  Butt  uses  it  on  the  present  occasion  ; 
viz.,  where  both  parties  agree  upon  the  specific  article  in  which  the 
property  is  to  pass,  and  nothing  remains  to  be  done  in  order  to  pass  it. 
It  is  contended  in  this  case  that  something  of  that  sort  subsequently 
took  place.     I  must  own  that  I  think  the  delivery  on  board  the  vessel 
could  not  be  an  appropriation  in  that  sense  of  the  word.     It  is  an  ap- 
propriation in  the  first  sense  of  the  word  only ;  the  vendor  has  made 
his  election  to  deliver  those  500  quarters  of  corn.     The  next  question 


( 


r 


SECT.  VI.]  WAIT   V.    BAKER.  947 


IS, 


\\hether  the  circumstances  Avhich  occurred  at  Bristol  afterwards 
amount  to  an  agreement  by  both  parties  tliat  tlie  property  in  those  500 
quarters  should  pass.  I  think  it  is  perfectly  clear  that  there  is  no  pre- 
tence for  saying  that  Lethbridge  agreed  that  the  proj^erty  in  that  corn 
should  pass.  It  is  clear  that  his  object  was  to  have  the  contract  repu- 
diated, and  thereby  to  free  himself  from  all  obligation  to  deliver  the 
cargo.  On  the  other  hand,  as  has  been  observed,  the  defendant  wished 
to  obtain  the  cargo,  and  also  to  have  the  power  of  bringing  an  action 
if  the  corn  did  not  agree  with  the  sample.  It  seems  evident  to  me 
that,  at  the  time  when  the  unindorsed  bill  of  fading  was  left,  there  was 
n'oligreement  between  the  two  parties  that  that  specific  cargo  should 
become  tbe  i)roperty  of  the  defendant.  If  that  is  so,  the  case  remains, 
as  to  tlie  question  of  property,  exactly  as  it  did  after  the  original  con- 
tract. There  is  a  contract  to  deliver  a  cargo  on  board,  and  probably 
for  an  assignment  of  that  cargo  by  indorsing  the  bill  of  lading  to  the 
defendant ;  but  there  was  nothing  which  amounted  to  an  appropriation, 
in  the  sense  of  that  term  which  alone  would  pass  the  property.  The 
result  is,  that,  in  this  action  of  trover,  the  plaintiifs,  claiming  under 
Lethbridge  by  the  indorsement  of  the  bill  of  lading,  are  entitled  to  the 
property ;  and  then  Mr.  Baker  has  his  remedy  against  him  for  the  non- 
fulfilment  of  his  contract,  which  he  certainly  has  not  fulfilled. 

Alderson,  B.  I  am  of  tlie  same  oi)inion.  The  circumstances  of  the 
case  clearly  show  that,  when  the  cargo  was  put  on  board  the  vessel, 
the  property  in  the  cargo  did  not  pass.  The  vendor  at  that  time 
chooses  a  certain  quantity  of  corn,  which  he  intends  to  offer  to  the 
party  in  performance  of  his  contract ;  but  he  keeps  it  as  his  property  in 
the  mean  time.  Such  being  the  state  of  matters,  the  proi)erty  in  that 
state  arrives  at  Bristol,  and  there  is  nothing  to  show  that  there  was 
any  transaction  which  amounted  to  an  agreement  between  the  parties 
to  alter  that  arrangement;  therefore  the  property  did  not  pass  at  all; 
and  as  the  one  party  has  not  tendered  the  barley  in  discharge  of  his 
contract,  the  other  party  has  his  action  against  him. 

RoLFE,  B.,  and  Platt,  B.,  concurred.  Hide  discharged. 


'  1j  ,948^  /i/^ '  /v      ^     JEN^fJs  v.^feRo^vN.yJ  .  [chap.  ti. 

0  v.^  f  /  /  -/    \ 

FRANCIS  JENKYNS  v.  WILLIAM  BKOWN,  JOSEPH   SHIP- 


»  LEY,  SAMUEL   NICHOLSON,  and  Others. 

x^   ,  In  the  Queen's  Bench,  December  18, 1849. 


V 


/ 


[Reported  in  14  Queen's  Bench  Reports,  496.] 


Trover  for  Indian  corn.     Pleas:  1.  Not  guilty;  2.  Tliat  plaintiff 
was  not  possessed,  &c.     Issues  thereon. 

On  the  trial  before  Erie,  J.,  at  the  Liverpool  summer  assizes,  1848, 
it  aj^peared  that  the  plaintiff  was  a  corn-merchant  living  in  London, 
and  employing  Messrs.  Klingender  &  Co.,  as  his  agents  at  New  Orleans. 
In  April,  1847,  Khngender  &  Co.  purchased  for  plaintiff,  at  New 
Orleans,  the  Indian  corn  in  question  with  their  own  money.  They 
drew  two  bills  on  the  plaintiff,  one  for  £975  10s.  Gel,  the  other  for 
£1537  14s.  lOcl,  both  at  thirty  days'  sight,  for  the  amount;  and  in  the 
body  of  these  bills  it  Avas  stated  that  they  were  to  be  placed  to  the 
account  of  the  corn.  These  bills  they  sold  ^  to  the  defendant  Samuel 
Nicholson  at  the  regular  value  of  the  bills,  handing  over  to  him  at  the 
same  time,  as  security,  the  bills  of  lading  for  the  corn,  shipped  as  after 
mentioned,  which  were  made  payable  to  the  order  of  Messrs  Klingen- 
der &  Co.,  and  indorsed  by  them.  It  was  agreed  between  Klingender 
&  Co.  and  Nicholson,  that  the  latter  might  sell  the  corn  if  the  bills 
were  not  paid.  Nicholson  was  a  partner  with  the  other  defendants, 
the  firm  having  houses  of  business  both  at  New  Orleans  and  at  Liver- 
pool. The  corn  was  shipped  for  Liverpool  by  different  vessels ;  and 
the  invoices  were  made  out,  j^urporting  that  the  corn  was  "  consigned 
to  order,  by  order,  and  for  account  and  risk,  of  Francis  Jenkyns,  Esq., 
London."  The  invoices  were  sent  to  the  plaintiff  from  New  Orleans 
by  Klingender  &  Co.,  after  the  indorsement  of  the  bills  of  exchange 
and  handing  of  the  bills  of  lading  to  Nicholson,  with  a  letter  to 
plaintiff,  advising  him  of  the  shipment,  and  of  the  drawing  of  the  bills 
\  of  exchange,  requesting  him  to  accept  them,  and  adding :  "  Bills  of 
lading  as  before  accompany  the  draft.  This  closes  our  present  pur- 
chases for  you."  The  corn  arrived  at  Liverpool.  Nicholson  forwarded 
I  ^^i  \the  bills  of  exchange  and  bills  of  lading  to  the  Liverpool  house  of 
i  ^^  ^defendants.  The  bills  of  exchange  were  presented  for  acceptance 
xto  plaintiff,  and  accepted  by  him,  payable  at  Messrs.  Smith  & 
'^Payne's,  bankers,  London :  and  they  became  due  on  the  17th  June, 
2^      ul848.     They  were  deposited,  together  with  the  bills  of  lading,  by  the 

►    X      \^      1  It  was  stated  that  this  was  a  common  mode  of  deahng  with  bills  at  New  Orleans 
^*s*^     instead  of  discounting  them. 


\iS^: 


SECT.  VI.]  JENKYNS   V.    BROWN.  949 

defendants,  with  Messrs.  Denison  &  Co.,  hankers,  London.  On  the  17th 
of  June,  the  phiintiff  called  at  Messrs.  Denison  &  Co.'s,  and  demanded 
the  bills  of  lading,  offering  to  take  up  the  bills  of  exchange.  He  was 
told  that  the  bills  of  exchange  had  been  sent  to  the  clearing-house, 
was  then  sup] )osed  to  be  the  fact;  but  it  afterwards  turned  out  that 
they  had  been  locked  up,  together  with  the  bills  of  lading,  at  jMessra. 
Denison's.  The  plaintiff  was  requested  to  call  the  next  day  at  Messi-s. 
Denison's,  but  did  not  do  so.  The  bills  of  exchange  were  afterwards 
presented  for  payment  at  Smith  &  Payne's,  but  were  not  paid.  The 
defendants  sued  the  plaintiff  on  the  bills  of  exchange,  and  obtained  a 
verdict.  Subsequently  to  this,  the  ])laintiff  became  bankru]it ;  but  he 
afterwards  made  arrangements  with  his  creditors,  in  consequence  of 
which  the  fiat  was  annulled.  At  the  time  of  these  arrangements,  the 
following  instrument  was  signed  on  behalf  of  the  defendants,  and  given 
to  the  2)laintiff :  — 

London,  February  9,  1848. 

Received  of  F.  Jenkyns  £230  18s.  8d.  in  cash,  and  a  promissory  note,  £(39 
Is.  4cZ.,  due  12  May,  in  full  of  all  claim  on  him,  as  per  agreement,  it  being  under- 
stood that,  in  default  of  payment  of  the  above  promissory  note,  our  original 
claim  revives. 

£300.  For  Brown,  Shipley,  &  Co. 

OVKKEXD,  GuitXEY,  &  Co. 

Afterwards  the  plaintiff  demanded  of  defendants  the  bills  of  lading; 
but  the  defendants  claimed  to  retain  them,  insisting  that  the  account 
had  been  taken  on  the  supposition  that  they  were  indemnified  to  the 
amount  of  the  value  of  the  corn.  Defendants  afterwards  sold  the  corn. 
The  present  action  was  then  brought. 

The  learned  judge  told  the  jury  that  no  property  in  the  corn  had 
passed  to  the  plaintiff,  except  upon  the  condition  of  his  paying  the  bills 
of  exchange,  and  that  his  offer  to  take  up  these  bills  on  the  17th  of  June 
did  not  satisfy  the  condition ;  and,  under  his  lordsliip's  direction,^  a 
verdict  was  found  for  the  defendants  on  the  second  issue,  and  for  the 
plaintiff  on  the  first. 

In  Michaelmas  term,  1848,  Wats07i^  for  the  plaintiff,  obtained  a  rule 
nisi  for  a  new  trial,  on  the  ground  of  misdirection.     In  last  term, 

3fartin  and  CoicUng  showed  cause.  The  question  is,  what  Klingen- 
der  &  Co.  meant  as  to  the  property  in  the  corn.  They  bought  it  with 
their  ow  n  money ;  and  they  might  either  make  it  their  own  property, 
or  the  property  absolutely  of  the  plaintiff,  or  the  property  of  the  i)lain- 
tiff  conditionally.  They  did  the  last,  the  condition  being  the  payment 
of  the  bills.     This  construction  was  put  on  a  similar  transaction  in 

1  The  plaintifTs  counsel  did  not  require  any  question  to  be  put  to  the  jury,  both 
sides  leaving  the  result  to  the  court,  as  the  inference  from  facts  not  disputed. 

VOL.  I.  61 


950  JENKYNS  V.    BROWN.  [CHAP.  II. 

Waitv.  Baker.^    There  the  party  imposing  the  condition  was  the  vendor 
himself;  but  an  agent  has  the  same  rights  as  the  vendor,  and  may  reserve 
a  lien,  or  enforce  a  stoppage  in  transitu.     Nor  was  the  interest  of  the 
defendants,  as  assignees  of  Klingender  &  Co.,  pnt  an  end  to  by  the 
offer  to   take   uj)  the  bills  on  17th  June.     The  tender  could  do  no 
more  than  suspend  the  right  of  the  holder  of  the  bills  to  recover  before 
a  fresh  demand  made.     In  effect  there  was  merely  a  failure  to  present 
the  bills;  that  did  not  fulfil  the  condition  of  payment;  and,  till  the 
fulfilment  of  that  condition,  no  property  passed  to  the  plaintiff.     It  is 
not  a  question  of  lien  :  the  property  has  never  passed  to  the  plaintiff  at 
all.     It  is  not  the  invoice,  but  the  bill  of  lading,  that  is  the  symbol  of 
property.    The  bills  of  lading  are  made  out  to  the  order  of  Klingender 
&  Co. ;  that  was  clear  evidence  that  the  property  did  not  then  pass  to  the 
plaintiff.    Wait  v.  Baker,  Van  Casteel  v.  Booker.^     At  what  time,  then, 
could  the  property  pass  to  the  plaintiff?    The  next  step  was  the  indorse- 
ment of  the  bills  of  lading  to  the  defendants  for  valuable  considera- 
tion.    The  letter  accompanying  the  transmission  of  the  invoices  w^as 
not  written  till  after  the  transfer  of  the  bills  of  lading  to  the  defend- 
ants :  so  that,  even  if  the  transmission  of  the  invoices  in  itself  would 
have  affected  the  property,  as  against  Klingender  &  Co.,  it  took  place 
after  the  vesting  of  the  right  of  the  defendants,  and  could  not  defeat 
that  right.     Assuming  that  personal  property  can  be  so  dealt  with  as 
to  pass  on  the  performance  of  a  condition  (which  is  questionable),  the 
condition  has  not  been  performed.    The  payijient  has  never  been  made 
by  the  plaintiff:  he  might,  instead  of  withdrawing  his  tender  upon  the 
non-production  of  the  bills  of  exchange  and  bills  of  lading,  have  paid 
the  money,  and  relied  upon  his  supposed  right  to  have  the  bills  given 
up.     The  receipt  of  February  9,  1848,  was  not  an  abandonment  by  the 
defendants  of  their  right  on  the  bills  of  exchange  and  bills  of  lading : 
it  was  given  on  the  supposition  that  the  corn  was  to  be  retained  by 
them  to  meet  the  bills,  as  far  as  it  could,  the  receipt  being  for  a 
composition  on  the  ultimate  balance  between  the  plaintiff  and  the 
defendants. 

Watson  and  Overend,  contra.  The  effect  of  the  shipment,  the  draw- 
ing upon  the  plaintiff,  the  invoices,  and  the  bills  of  lading,  was  to  con- 
fer the  property  upon  the  plaintiff  at  once,  with  a  reservation  to  Kling- 
ender &  Co.  of  a  lien  for  the  price.  [Erle,  J.  Might  not  Klingender 
&  Co.  have  reserved  the  property  to  themselves  by  express  words? 
And  have  not  the  bills  of  lading  made  for  delivery  to  their  order  the 
same  effect  ?]  They  have  not.  If  the  corn  had  been  lost  at  sea,  the 
plaintiff  miist  have  borne  the  loss,  having  accepted  the  goods  on 
the  terms  of  the  invoices.  Klingender  &  Co.  therefore  could  transfer 
only  the  right  to  the  lien ;  and  the  defendants  were  in  the  position  of 

2  Exch.  1.  2  2  Exch.  691,  708. 


SECT.  VI.]  JENKYNS   V.    BROWN.  951 

an  un])ai(l  vcndov  hokliiip^  the  projjcrty  nnder  a  lion  for  the  payment. 
Then  the  offer  of  payment  discharged  the  Hen;  the  rule  that  a  tender 
is  no  defence  to  an  action  if  there  be  a  subsequent  demand  and  refusal 
is  inapplicable  to  this  question.  It  seems  that  in  Scarfe  v.  Morgan,^  if 
there  had  been  an  absolute  refusal  to  acce^Jt  payment,  the  court  would 
have  held  the  lien  to  be  determined :  the  same  principle  may  be  col- 
lected from  Stevenson  v.  Blakelock,-  Cowell  v.  Simj)son,'^  and  Crozer  v. 
Pilling.''  Immediately  upon  the  tender,  the  defendants  became  wrong- 
ful holders.  The  offer  of  payment  destroys  the  plea  ipso  facto. 
[Erle,  J.  You  went  to  the  wrong  place.  The  bills  ought  not,  in  the 
course  of  business,  to  have  been  at  Denison's.  Wigiitman,  J.  You 
should  have  gone  to  Smith  &  Payne's.]  The  bills  were  in  fact  at 
Denison's.  In  Wait  v.  Baker,*^  the  vendee  had  not  accepted  the  bill 
of  lading  or  invoice  so  as  to  afftrm  the  sale.  Van  Casteel  v.  Booker® 
more  nearly  resembles  this  case.  The  court  there  considered  the  case 
to  be  that  of  a  right  of  lien  in  an  unpaid  vendor. 

Cur.  ado.  vidt. 

Coleridge,  J.,  now  delivered  judgment. 

Although  Klingender  &  Co.  bought  the  corn  in  question  abroad  as 
agents  for  the  plaintiff,  yet  as  they  paid  for  it  with  their  o>vn  money  it 
becaihe  their  property ;  and,  after  the*  shipment,  the  cargo  continued 
their jproperty,  as  there  is  no  evidence  of  an  intention  that  it  should 
pass,  and  as  the  taking  of  a  bill  of  lading  deliverable  to  their  own  order 
is  nearly  conclusive  evidence  that  it  did  not  pass.  By  delivering  this 
bill  of  lading,  indorsed  to  the  defendants,  as  a  security  for  the  ])ayment 
of  the  bills  of  exchange  drawn  on  the  plaintiff  for  the  value  of  the 
cargo,  and  giving  power  to  sell  in  case  of  failure  of  payment  (the  bills 
of  exchange  having  been  purchased  by  the  defendant),  they  passed  to 
the  defendant  for  value  a  sj)ecial  property  in  the  cargo ;  and  by  after- 
wards sending  the  invoice  with  the  bills  of  exchange  and  letters  of 
advice  to  the  plaintiff,  they  passed  to  him  the  general  pro2)erty  in  the 
cargo,  subject  to  this  special  property.  Under  this  arrangement  the 
plaintiff's  right  of  possession  would  not  arise  till  the  bills  should  be 
paid. 

On  the  day  of  maturity  the  plaintiff  offered  payment  of  the  bills 
to  tlie  holder  of  them ;  but  as  they  were  accidentally  mislaid  on  that 
day,  the  payment  was  not  received,  and  the  plaintiff  was  desired  to  pay 
on  the  following  morning.  This  he  was  not  then,  and  has  not  since, 
been  able  to  do. 

U])on  these  facts  the  plaintiff  has  contended  that  the  defendants  had 
no  interest  in  the  cargo  beyond  a  lien  for  the  amount  of  the  bills,  and 
that  such  lien  was  discharged  by  the  offer  of  that  amount;  and  that 

1  4  M.  &  W.  270.  2  1  M.  &  S.  535.  3  iq  Ves.  276. 

4  4  B.  &  C.  26.  5  2  Exch.  1.  «  2  Exch.  691. 


952 


TURNER   V.    TRUSTEES    OF   LIVERPOOL   DOCKS.  [CHAP.  11. 


thereby  the  plaintiff  was  entitled  to  demand  possession  of  the  cargo 
without  payment,  and,  on  refusal,  to  maintain  trover. 

But  we  think  that  the  defendants  had  a  special  property  in  the  cargo, 
according  to  the  intention  of  the  parties  as  above  stated,  when  the  bill 
of  lading  was  delivered  to  them.  We  also  think  that  the  offer  of  the 
money  on  the  one  hand,  and  the  request  on  the  other  for  a  day's  delay 
before  receiving  it  on  account  of  an  accident,  did  not  amount  to  a  ten- 
der and  refusal  of  the  payment,  and  did  not  discharge  the  plaintiff  from 
his  duty  to  pay  the  bills  before  his  right  to  the  possession  of  the  cargo 
attached. 

The  law  bearing  upon  many  of  these  points  is  clearly  laid  down  in 
Wait  V.  Baker  ^  and  Van  Casteel  v.  Booker,^  with  wdiich  we  agree.  It 
follows  that  the  verdict  for  the  defendant  was  right ;  and  the  rule  must 
be  discharged.  J^ule  discharged. 


/-^  ^ 


^t<^ 


TURNER  AisTD  Others,  ^signees  of  Higginson  and  Deane,  Bank- 
rupts, V.  THE  TRUSTEES  of  the  LIVERPOOL  DOCKS. 

\^       In  the  Exchequer  Chamber,  May  20,  1851^  ..,*^ 

/  [Reported  in  6  Exchequer  Reports,  543.]  /    '     -j./^"^^^/^ — 

\  /' 

-'■    Ekeob  on  a  bill  of  exceptions.     The  action  was  in  detinue  by  the, 

plaintiffs,  as  assignees  of  Higginson  and  Deane,  bankrupts,  to  recover 
certain  bales  of  cotton  and  a  quantity  of  plank.     The  first  count  of  the  , 
declaration  laid  the  property  in  the  bankrupts  before  their  bankruptcy ; 
I  the  second  count  laid  the  property  in  the  plaintiffs  as  assignees.     The 
two  first  pleas,  which  were  respectively  pleaded  to  the  first  and  second  C    %\ 
counts,  traversed  the  propei'ty  in  the  goods  as  alleged  in  those  counts.  i 

Third  plea  to  the  whole  declaration  :  that  the  goods  and  chattels  were 
the  goods  and  chattels  of  certain  persons  united  in  copartnership  for 
the  purpose  of  carrying  on  the  trade  of  bankers,  according  to  the  stat- 
ute in  that  behalf  made,  &c.,  and  called  "The  Bank  of  Liverpool,"  as 
against  the  plaintiffs  as  assignees  as  aforesaid ;  wherefore  the  defend- 
ants, at  the  commencement  of  the  suit,  detained,  and  still  do  detain  the 
said  goods;  quce  est  eadem,  &c.  Verification.  The  plaintiffs  joined 
issue  upon  the  two  first  pleas,  and  replied  to  the  third  by  traversing 
the  property  in  the  goods  as  alleged  in  the  plea. 

The  cause  was  tried  before  Wightman,  J.,  at  the  Liveii^ool  summer 
assizes,  1849;  and  the  facts  stated  in  the  bill  of  exceptions  (so  far  as 
material)  are  as  follows :  — 


1  2  ExA.  1 


2  2  Exch.  691. 


SECT.  VI.]         TURNER  V.  TRUSTEES    OF    LIVERPOOL    DOCKS.  953 

On  tlic  13th  of  November,  1847,  a  fiat  in  bankruptcy  issuefl  against 
Jonatlian  Iligginson  and  Rieliard  Deane,  of  Liveriiuol,  niercliants,  who 
carried  on  business  under  tlie  firm  of  Barton,  Irhim,  &  Higginson, 
under  Avhich  they  were  adjudged  bankrupt  on  an  act  of  bankruptcy 
committed  by  them  on  the  11th  of  November,  1847.  Iligginson  and 
Deane  were,  up  to  and  at  the  time  of  their  bankruptcy,  owners  of  the 
ship  Charlotte,  Carter,  master,  and  also  of  the  ship  Iligginson.^ 

On  the  18th  of  August,  1847,  the  bankrujits  wrote  to  Menlove  &  Co. 
of  Charleston,  South  Carolina,  ordering  them  to  ship  on  their  (the  bank- 
rupts') account  1000  or  more  bales  of  cotton  for  the  homeward  cargo  of 
the  Charlotte,  then  on  a  voyage  from  Liverpool  to  Charleston,  and  con- 
signed to  Menlove  &  Co.  The  order  was  duly  executed  by  Menlove 
&  Co.,  who  purchased  and  shipped  on  board  the  Charlotte  1263  bales  of 
cotton.  They  also  shipped  on  board  the  same  vessel  74,871  feet  of 
plank.  The  vessel  completed  her  loading  on  the  12th  of  October,  on 
which  day  the  master  signed  and  delivered  to  Menlove  &  Co.  a  bill  of 
lading,  stating  the  shipment  of  the  cotton  and  timber  by  Menlove  & 
Co.,  and  making  the  same  deliverable  at  Liverpool  "  unto  order  or  to  our 
assigns,  he  or  they  paying  freight  for  the  said  goods,  viz.,  for  cotton  in 
round  bales,  cotton  in  square  bales,  nothing,  being  owners'  property." 
On  the  same  day  Menlove  &  Co.  sent  to  the  l)ankrupts  the  invoice 
of  the  timber,  stating  the  same  to  have  been  shipped  "for  Liver- 
pool, by  order  and  for  account  and  risk  of  Messrs.  Barton,  Irlam,  & 
Hio-o-inson  there,  and  addressed  to  order."  On  the  19th  October,  they 
sent  them  an  abstract  invoice  of  the  cotton,  which  contained  the  same 
words  as  those  above  quoted  from  the  invoice  of  the  timber.  On  the 
23d  October,  they  sent  them  the  full  invoice  of  the  cotton,  stating  the 
same  to  have  been  shipped  "  for  Liverpool,  by  order  and  for  account  of 
Messrs.  Barton,  Irlam,  &  Higginson  there,  and  to  them  consigned." 
The  invoice  of  the  timber  was  dated  October  11 ;  that  of  the  cotton, 
October  13. 

Menlove  &  Co.,  not  having  sufficient  funds  of  the  bankrujits  to  pay 
for  the  whole  of  the  cotton  and  plank,  put  themselves  in  funds  for  that 
purpose  by  drawing  bills  on  the  bankrujits,  Avhich  they  sold  to  the  Bank 
of  Charleston,  delivering  to  said  bank,  as  collateral  security,  the  bill 
of  lading  for  the  cargo  in  question,  specially  indorsed  to  the  Bank  of 
Liver])ool.  These  bills,  with  one  exception,  were  dishonored,  and 
taken  up  by  Menlove  &  Co.  ( )u  the  16th  of  October,  Menlove  &  Co. 
advised  the  bankrupts  of  having  drawn  upon  them  as  stated  above,  and 
added,  "  We  deferred  drawing  as  long  as  possible  for  the  early  pur- 
chases, to  give  the  ship  time  to  be  with  you  before  the  drafts ;  and  as 
the  nioney  market  was  so  stringent,  Ave  thought  a  little  time  would  be 

1  The  circumstances  relating  to  each  vessel  being  similar,  and  the  same  question 
arising  as  to  each,  the  argument  was,  by  consent  of  both  parties,  coutiued  to  the 
Charlotte ;  and  therefore  the  facts  as  to  the  Iligginson  are  omitted. 


954  TURNER   V.    TRUSTEES   OP   LIVERPOOL   DOCKS.  [CHAP.  II. 

acceptable  to  you."  They  also  requested  the  bankrupts  to  insure  the 
cargo  to  the  amount  of  its  invoice  price,  which  was  made  up  of  the 
price  paid  by  Menlove  &  Co.,  with  their  charges  added,  including  a 
commission.  On  the  23d  October,  they  wrote  a  letter  to  the  bank- 
rupts, in  which  they  said  :  — 

The  bank  to  whom  our  drafts  on  you  were  sold,  required  the  delivery  of  B/L., 
which  we  thought  best  to  comply  with,  and  thereby  obtained  the  very  highest  rate 
of  exchange  that  in  consequence  of  the  uneasiness  felt  by  purchasers  of  drafts  on 
England  caused  by  the  monetary  embarrassments  there,     [sic] 

The  Charlotte  arrived  at  Liverpool  on  the  26th  of  November,  1847, 
and,  on  the  following  day,  notice  was  given  to  the  master  that  Men- 
love  &  Co.  claimed  to  stop  the  cargo  in  transitu,  and  reqiiired  him  to 
deliver  it  to  the  Bank  of  Liverpool  on  their  account.  On  the  11th  of 
February,  1848,  the  cargo  was,  by  consent,  stowed  in  the  warehouse  of 
the  defendants. 

It  was  proved  that  the  bills  of  lading  wore  in  the  form  usual  in  the 
American  trade ;  and  that  when  bills  of  lading  are  transferred,  it  is  not 
the  practice  of  merchants  to  inquire  for  the  invoice  or  correspondence, 
or  any  thing  but  the  bill  of  lading.  It  also  appeared  fi*om  the  deposi- 
tions of  merchants  of  experience  at  Charleston,  that  when  a  merchant 
at  that  port  is  placed  in  possession  of  an  order  for  the  purchase  of  prod- 
uce from  an  English  correspondent,  the  invariable  usage  is  to  reim- 
burse, unless  otherwise  placed  in  funds,  by  drawing  bills  of  exchange 
on  the  Eiiropean  house.  The  xisual  course  of  business  is  for  the  merchant 
who  executes  an  order  embracing  the  jiurchase  of  produce  for  a  mer- 
chant in  England,  to  draw  bills  on  the  latter,  and  to  raise  the  money 
by  negotiating  the  bills.  This  negotiation  generally  takes  place  with 
a  bank,  but  sometimes  with  other  dealers  in  bills ;  when  the  bill  is  taken 
by  a  bank,  it  is  always  drawn  payable  to  the  cashier ;  when  negotiated 
to  a  private  dealer,  it  is  drawn  as  he  may  direct.  In  such  negotiation 
the  bill  is  not  said  to  be  discounted,  as  it  is  almost  always  sold  at  an 
amount  exceeding  the  nominal  value.  Dealers  in  exchange,  whether 
banks  or  individuals,  when  they  have  not  full  confidence  in  the  strength 
of  the  bills  at  both  ends,  generally  require  the  bill  of  lading  transferred  as 
additional  security.  The  highest  exchange,  however,  is  obtained  for 
bills  bought  without  such  security,  as  they  are  bills  drawn  on  parties 
whose  characters  stand  high.^ 

The  plaintiffs'  counsel  objected  to  the  reception  of  certain  portions  of 
the  evidence  offered  on  behalf  of  the  defendants ;  but  the  evidence  was 
admitted  by  the  learned  judge,  who  expressed  an  opinion  that  the  evi- 
dence objected  to  did  not  carry  the  case  further  in  favor  of  the  defend- 
ants.    The  plaintiffs'  counsel  also  contended,  that,  under  the  above 

^  The  statement  of  facts  has  been  abbreviated.  —  Ed. 


SECT.  Vr.]         TURNER   V.   TRUSTEES   OF   LIVERPOOL  DOCKS.  955 

circumstances,  the  property  and  possession  of  tlie  goods  in  question 
vested  absolutely  in  Barton,  Irlani,  &  Higginson,  on  the  delivery  on 
boai-d  their  ship,  so  that  all  rights  of  lien  and  stoi)page  in  transitu  of 
Menlove  &  Co.  Avere  then  at  an  end ;  and  that  such  rights  were  not 
revested  by  Menlove  &  Co.  taking  the  bills  of  lading  to  their  o-vvn 
order,  contrary  to  their  contract;  that  the  master  had  no  authority  to 
sign  such  bills  of  lading;  and  even  if  Menlove  &  Co.  had  such  riglits  of 
lien  and  stoppage  in  trcmsitu,  they  could  not  transfer  them.  Also, 
that  any  defence  of  lien  orstopj^age  i}i  transitu  should  have  been  spe- 
cially pleaded. 

It  Avas  agreed  on  both  sides  that  there  was  no  question  of  flict  for 
the  jury,  and  that  the  learned  judge  should  direct  them  how  they 
should  find  their  verdict ;  and  being  of  opinion,  upon  all  the  facts  of  the 
case,  that  Menlove  &  Co.  had  not  delivered  the  cotton  on  board  the 
ship  to  be  carried  for  and  on  account  and  at  the  risk  of  the  vendees, 
but  that  they  intended  to  preserve  their  rights  as  unpaid  vendors,  he 
directed  a  verdict  for  the  defendants. 

A  bill  of  exceptions  having  been  tendered  to  this  ruling  of  the 
learned  judge,  the  case  was  argued  in  last  Michaelmas  vacation  (No- 
vember 30  and  December  2)  by 

Crompt07i  {BlacL-burii  with  him),  for  the  plaintiffs.  The  principal 
question  is,  whether,  upon  the  above  documents  and  evidence,  the 
learned  judge  was  correct  in  directing  a  verdict  for  the  defendants.  It 
is  submitted  that  the  property  and  right  of  possession  of  the  goods  in 
question  vested  in  Barton  &  Co.  by  the  delivery  on  board  their  vessel. 
Any  right  of  lien  or  stoppage  in  transitu  was  gone  when  the  goods 
were  put  on  board  the  vendees'  ship,  to  be  carried  for  them  and  on 
their  account  and  risk.  Van  Casteel  v.  Booker,-  In  re  Humberston,-  Coxe 
V.  Harden.^  The  distinction  is  well  established,  that  where  goods  are 
shipped  on  board  a  chartered  vessel,  the  right  of  stoppage  in  transitu 
remains,  because  the  master  is  the  agent  of  the  shijiper,  and  in  the  situ- 
ation of  a  bailee  or  carrier ;  but  if  the  contract  is  to  deliver  on  board  the 
purchaser's  own  ship,  the  transitus  is  determined  by  the  delivery.*  .  .  . 
The  property  in  these  goods  having  vested  absolutely  in  Barton  & 
Co.,  the  indorsement  by  the  master  of  the  bill  of  lading,  making  the 
goods  deliverable  to  other  persons,  can  be  of  no  avail.^  .  .  .  Here 
the  contract  was  distinct,  that  the  goods  should  be  delivered  to 
Barton  &  Co.  on  board  their  ship,  which  was  sent  to  receive  them.  It 
is  true,  the  foreign  merchant  is  under  no  obligation  to  comply  with  the 
order  sent,  but  may  sliip  the  goods  to  his  own  order,  deliverable  upon 

1  2  Exch.  691.  2  1  Y>e  Gex,  Bank.  Cas.  262.  »  4  East,  211. 

♦  The  learned  counsel  here  quoted  from  Abbott  on  Shipping  (8th  ed.),  pp.  289, 
522.  — Ed. 

*  The  learned  counsel  here  cited  Ogle  v.  Atkinson,  5  Taunt.  759,  and  The  Con- 
stantia,  6  Rob.  Adm.  327.  —  Ed. 


956  TURNER   V.    TRUSTEES   OF   LIVERPOOL   DOCKS.  [CHAP.  II. 

payment  of  fi-eight ;  but  in  that  case  the  consignee  may  refuse  to  accept 
the  goods.  Here,  however,  it  is  clear  that  Menlove  &  Co.  intended 
the  property  to  pass  to  Barton  &  Co.  on  delivery ;  for  by  the  letter 
of  the  16th  of  October  they  say  that  they  have  drawn  the  bills  of 
exchange  at  a  long  date,  in  order  to  give  Barton  &  Co.  time  to  realize 
money  by  the  sale  of  the  goods.  The  fact  that  the  goods  are  stated  in 
the  bill  of  lading  to  be  the  owner's  property,  and  freight  free,  shows  that 
the  contract  was  one  of  absolute  sale,  to  be  executed  by  delivery  on 
board  their  vessel.  Menlove  &  Co.  could  have  no  right  to  use  the 
vessel  of  Barton  &  Co.  for  the  purpose  of  carrying  their  own  goods 
"freight  free,"  neither  could  they  have  any  right  to  pledge  the  goods 
increased  in  value  by  the  amount  of  the  freight.  The  fact  that  the 
goods  were  shipped  at  the  risk  of  Barton  &  Co.  also  shows  that  the  con- 
tract was  for  the  delivery  of  the  goods  to  them  on  board  their  ship  in 
America,  and  not  at  Liverpool.  The  master  had  no  authority  to  sign 
a  bill  of  lading  contrary  to  his  express  instructions.  Menlove  &  Co. 
might  have  sued  Barton  &  Co.  for  goods  sold  and  delivered  the  moment 
they  were  put  on  board  their  vessel.  Suppose  the  goods  had  perished 
at  sea  before  the  23d  of  October,  could  Barton  &  Co.  on  that  account 
have  refused  to  accept  the  drafts,  or  could  their  underwriters  have  suc- 
cessfully traversed  their  interest  ?  Again,  suppose  that  by  the  wrongful 
act  of  the  mariners  the  goods  had  been  damaged,  could  Menlove  &  Co. 
have  maintained  an  action  on  the  bill  of  lading  against  Barton  &  Co.  ? 
Clearly  not,  for  it  Avas  a  contract  by  the  master  to  carry  the  OAvner's 
property  for  nothing.  Mitchel  v.  Ede^  is  distinguishable,  since  in 
that  case  it  was  not  contrary  to  the  master's  duty  to  bring  home  the 
goods  on  freight.  The  court  there  considered  that  the  bill  of  lading  was 
not  conclusive  as  to  the  vesting  of  the  property,  because  it  was  explained 
by  other  circumstances.  In  Wait  v.  Baker,-  the  ship  was  chartered  by 
the  vendor  for  the  use  of  the  vendee,  and  the  master  was  in  the  situa- 
tion of  agent  for  both  parties.  Van  Casteel  v.  Booker  ^  is  an  authority 
in  the  plaintiffs'  favor.  There  the  bill  of  lading  was,  "  he  or  they  pay- 
ing freight  free ; "  in  this  case  it  is,  "  nothing,  being  owners'  property, 
without  per  cent,  primage  and  average  accustomed."  That  case  shows 
that  all  the  circunistances  must  be  looked  at,  in  order  to  see  whether 
or  no  it  was  the  intention  of  the  parties  that  the  property  should  pass. 
In  Ellershaw  u.  Magniac,*  which  is  cited  in  Van  Casteel  v.  Booker,  it 
was  held  that  the  vendor  had  a  right  to  vary  the  consignment.  In 
Jenkyns  v.  Brown,^  the  cargo  was,  at  the  time  of  the  shipment,  the 
property  of  the  plaintifl''s  agent,  and  there  was  no  evidence  of  an  in- 
tention to  pass  it.  A  bill  of  lading  in  the  ordinary  form  is  a  mere  con- 
tract for  carriage,  and  where  a  person  carries  his  own  goods  in  his  own 

illA.  &E.  888.  2  2Exch.  1.  »  2  Exch.  69L 

*  6  Exch.  570,  n.  *  19  L.  J.,  Q.  B.  288. 


SECT.  VI.]         TURNER   V.    TRUSTEES   OF   LIVERPOOL    DOCKS.  957 

ship  no  bill  of  lading  is  necessary.  Here  the  bill  of  lading,  coupled  with 
the  other  circumstances,  shows  that  the  property  vested  in  the  con- 
signees, and  that  the  shippers  were  merely  their  agents.  Where  there 
is  a  delivery  of  goods,  with  an  intention  to  pass  the  property,  the  ven- 
dor cannot  subject  them  to  any  right  of  lien  or  control.  Howes  u. 
Ball.^  The  owners  themselves  having  made  a  special  contract  for  the 
employment  of  their  ship,  it  was  not  competent  for  the  master  to  annul 
such  contract,  and  substitute  another  for  it  with  the  other  contracting 
party.  Abbott  on  Shipping,  p.  130,  8th  edit.;  Burgon  v.  Sharpe,* 
Dewell  V.  JNIoxon.^  There  is  a  class  of  cases  which  show  that  a  bill  of 
lading  will  not  control  the  lights  which  a  ship-owner  has  reserved  to 
himself  by  the  cliarter-party.  Small  v.  Moates,*  Saville  v.  Campion.* 
The  indorsement  of  a  bill  of  lading  does  not  of  itself  operate  as  a  trans- 
fer of  the  property,  but  is  only  evidence  of  it.  Newsom  v.  Thornton,' 
Haille  v.  Smith.''  Secondly,  even  if  a  right  of  lien  did  exist,  it  could 
not  be  transferred.  A  lien  is  a  personal  right,  and  continues  only  so  long 
as  the  possessor  holds  the  goods.  M'Combie  v.  Davies,^  Daubigny 
V.  Daval,^  Legg  v.  Evans.^"  Thirdly,  the  lien,  if  any,  should  have 
been  specially  pleaded.  As  Menlove  &  Co.  had  in  their  hands  some 
funds  of  Barton  &  Co.,  they  w^ere  not  in  the  situation  of  unpaid  ven- 
dors. Mason  v.  Farnell "  decided  that  in  detinue  the  defendant  cannot, 
under  the  pleas  of  noti  detinet  and  not  possessed,  show  that  he  had  a 
common  interest  with  tlie  plaintiff  in  the  property  sought  to  be  re- 
covered. That  decision,  however,  is  at  variance  with  Lane  v.  Tewson," 
in  which  the  Court  of  Queen's  Bench  held  that  in  detinue  a  lien  might 
be  set  u})  under  a  plea  that  the  goods  were  not  the  goods  of  the  plain- 
tiff. Fourthly,  the  evidence  objected  to  was  improperly  received. 
That  would  entitle  the  plaintiff  to  a  venire  cU  novo.  [Wigutman,  J. 
Nothing  was  left  to  the  jury ;  therefore  they  could  not  have  been  in- 
fluenced by  that  evidence.] 

Coxding  {Knowles  and  Watson  with  him),  for  the  defendants.  The 
learned  judge  was  correct  in  directing  a  verdict  for  the  defendants.  It 
is  material,  in  the  first  place,  to  advert  to  the  relative  position  of  the 
parties.  At  the  time  the  order  was  sent  to  Menlove  &  Company,  they 
were  unprovided  with  funds  to  make  the  })urchases,  with  a  trifling  ex- 
ception. Then  what  is  the  usage  of  trade?  The  course  of  dealing 
at  Charleston  is  to  purchase  produce  for  cash ;  and  that  is  obtained 
by  the  merchant  at  Charleston  drawing  bills  on  the  merchant  in  Eng- 
land, and  when  those  bills  cannot  be  sold  without  additional  security, 
the  bill  of  lading  is  assigned  for  that  purpose.  ]\[enlove  &  Co.  were 
unable  to  raise  money  without  jjledging  the  bill  of  lading;  and  couse- 

1  7  B.  &  C.  481.  2  2  Campb.  529.  '  1  Taunt.  391. 

*  9  Eing.  574.  »  2  B.  &  Aid.  503.  6  G  East,  17. 

1  1  Bos.  &  P.  563.  8  7  East,  5.  »  5  T.  R.  604. 

10  6  M.  &  AV.  86.  "  12  M.  &  W.  G74.  12  12  A.  &  E.  116,  n. 


958  TURNER   V.    TRUSTEES   OF    LIVERPOOL   DOCKS.  [CHAP.  H. 

quently  they  agreed  to  indorse  it  to  the  Bank  of  Charleston,     This 
negotiation  took  pLace  before  the  bills  of  exchange  were  drawn,  and 
also  prior  to  any  shipment ;  for  the  letter  of  the  25th  of  September 
shows  that  the  outwai-d  cargo  of  the  Charlotte  was  not   then  dis- 
charged.    Bills  were  accordingly  drawn,  by  means  of  which  Menlove 
&  Co.  were  enabled  to  jiurchase  the  great  bulk  of  the  cargo ;  and  it  is 
not  disputed  that  the  highest  rate  of  exchange  was  obtained.     On  the 
12th  of  October,  the  day  before  the  Charlotte  sailed,  the  bill  of  lading 
was  drawn  "  to  order  of  Menlove  &  Co.,"  and  forwarded  to  the  Bank 
of  Liverpool,  who  are  identified  with  the  Charleston  Bank.     On  the 
same  day  an  invoice  of  timber  was  sent  consigned  "  to  order."     On  the 
19th  of  October,  an  abstract  invoice  of  cotton  was  sent  in  a  similar 
form;   and  on  the  23d  an  invoice  was  sent  dated  the  13th.     Under 
these  circumstances,  the  goods  Avhen  pui'chased  became  the  property 
of  Menlove  &  Co. ;    for  they  purchased  in  their  own  name,  and  the 
credit  was  given  to  them  exclusively,  they  having  to  pay  cash.     Abbott 
on  ShijDping,  p.  516,  8th  ed, ;  Feise  v.  Wray.^     Then  when  did  the  goods 
cease  to  be  the  property  of  Menlove  &  Co.  ?     No  doubt  they  wrote 
that  they  had  made  purchases  for  Barton  &  Co. ;  but  those  letters  only 
show  an  intention  to  purchase  goods  for  the  latter,  not  an  irrevocable 
appropriation  of  them.     The  proj^erty  remained  in  Menlove  &  Co.,  at 
least  until  the  goods  were  shipped.     Atkinson  v.  Bell.^    It  is  said  that 
Menlove  &  Co.,  by  acceding  to  the  order  of  Barton  &  Co.,  undertook 
to  ship  the  goods  as  their  property ;  but  no  such  consequence  follows. 
If,  indeed,  Menlove  &  Co.  had  undertaken  to  ship  the  goods  as  the 
unqualified  and  absolute  property  of  Barton  &  Co.,  they  would  have 
been  bound  by  such  an  agreement ;  biit  the  letter  of  the  18th  of  August 
contains  nothing  specific  as  to  the  mode  of  payment.     It  must  there- 
fore be  read  with  reference  to  the  usage  of  trade,  and  in  the  sense  in 
which  a  merchant  in  the  situation  of  Menlove  &  Co.  would  understand 
it ;  that  is,  that  they  were  to  raise  funds  by  drawing  bills  of  exchange, 
and  pledging  the  bills  of  lading  if  necessary.     That  Barton  &  Co. 
contemplated  the  drawing  of  bills,  is  clear  from  the  letter  itself,  and 
also  from  the  letter  to  them  of  the  23d  of  September,  in  which  Men- 
love &  Co.  inform  them  that  they  have  drawn  the  bills.     The  contract 
was  not  to  ship  the  goods  absolutely  and  without  reservation,  but  sub- 
ject to  the  special  projjerty  in  respect  of  the  pledge  of  the  bills  of  lad- 
ing.    Menlove  &  Co.  were  therefore  justified  in  shipping  the  goods  in 
their  own  name,  so  as  to  reserve  to  themselves  the  legal  property,  for 
the  purjjose  of  securing  payment  of  the  funds  raised.     But  whether 
justified  or  not,  the  mere  duty  to  ship  the  goods  in  the  name  of  Barton 
&  Co.  would  not  vest  the  property  in  them,  though  the  breach  of  that 
duty  might  render  Menlove  &  Co.  liable  to  an  action.     The  words 

1  3  East,  93.  2  8  B.  &  C.  277. 


4 


SECT.  VI.]    TURNER  V.    TRUSTEES  OF  LIVERPOOL  DOCKS. 


959 


"owners'  property,"  in  the  bill  of  Indinj;,  mean  beneficially  so,  and 
were  only  inserted  for  the  purpose  of  exculpating  the  captain  for  carry- 
ing "freight  free."     The  important  part  of  the  bill  of  lading  is  that 
which  states  the  person  to  whose  order  it  is  drawn.     Van  Casteel  v. 
Booker  ;i    Jenkyns  v.  Brown.^     No  real  prejudice  could  ensue  from 
taking  the  bill  of  lading   in  this  form,  for  Barton  &  Co.  were  in 
the   situation   of  mortgagors,  and   had    sufficient   interest   to  insure. 
1  Arnould  on  Insurance,  251 ;  Smith  v.  Lascelles.''     A  court  of  equity 
would,  as  in  the  case  of  mortgagees,  compel  the  consignors  to  refund, 
o;i  sale  of  the  goods,  what  they  might  receive  beyond  what  was  suf- 
ficient to  indemnify  them.     The  invoice,  which  bears  date  subsequent 
to  the  bill  of  lading,  would  not  affect  the  property  passed  to  the  bank. 
An  invoice  is  not,  like  a  bill  of  lading,  a  symbol  of  property.     The 
terms  "addressed  to  order"  in  the  invoice  refer  to  the  bill  of  lading. 
Whether  or  no  the  master  acted  rightly  in  receiving  the  goods  as  those 
of  Menlove  &  Co.  is  immaterial,  since  his  wrongful  receii)t  of  them 
would  not  vest  the  property  in  Barton  &  Co.     But  the  master  acted 
rightly,  because  he  was  authorized  to  receive  the  goods  on  the  same 
terms  as  Menlove  &  Co.  were  justified  in  shipping  them  ;  that  is,  accord- 
ing to  the  course  of  trade,  and  subject  to  such  security  as  was  neces- 
sary for  the  purpose  of  raising  funds.     In  Wait  v.  Baker,*  the  terms  of 
the  charter-party  do  not  appear,  and  the  vessel  was  treated  as  the  pur- 
chaser's.    In  Van  Casteel  v.  Booker,  in  which  the  bill  of  lading  was 
like  the  present,  the  question  was  considered  as  depending  on  the  in- 
tention of  the  parties  at  the  time  of  the  shipment.     Coxe  v.  Harden 
has   never   been    cited  with   approbation,   and   as   to   one   point  has 
been  overruled  by  Morison  v.  Gray  ^  and  Brandt  v.  BoAvlby.^     Ogle  v. 
Atkinson  ^  is  not  reconcilable  with  Mitchel  v.  Ede «  or  Ellershaw  v. 
Magniac,^  and  can  only  be  supported  on  the  ground  of  fraud.     The 
case  of  The  Constantia  ^'^  has  no  bearing  on  the  present  case,  for  here 
the  question  is  not  Avhether,  if  the  goods  had  been  consigned  to  Barton 
&  Co.,  that  consignment  could  have  been  altered,  but  whether  they 
ever  were  so  consigned.     Mitchel  v.  Ede  only  shows  that  the  consignee 
alone  has  power  to  change  the  destination.     Secondly,  it  is  argued  that 
a  lien  is  a  personal  right,  and  cannot  be  transferred.     No  doubt  that  is 
so  in  the  case  of  an  ordinary  lien ;  but  it  is  otherwise  where,  as  here, 
•an  unpaid  vendor  has  a  property  in  the  goods.     His  interest  differs 
from,  and  is  greater  than,  that  of  an  ordinary  lien,  and  is  not  destroyed 
by  relinquishing  possession  of  the  goods.     Hobson  v.  Mellond  "  shows 
that  there  are  eases  in  Avhich  a  lien  is  transferable.      Further,  it  is 
argued  that  the  lien  ought  to  have  been  pleaded  specially ;  but  that 

1  2  Exch.  691.  2  19  L.  J.,  Q.  B.  288.  »  9  T.  R.  187. 

4  2  Exch.  1.  5  2  Bing.  260.  «  2  B.  &  Ad.  932. 

7  5  Taunt.  759.  8  n  a.  &  E.  888.  ^  6  Exch.  570,  n. 

10  6  Rob.  Adm.  Rep.  321.  *^  2  Moo.  &  Rob.  342. 


960  TURNER   V.    TRUSTEES    OF    LIVERPOOL    DOCKS.         [CHAP.  H. 

arsrument  altosrether  fails,  inasmuch  as  this  is  not  a  mere  lien.     At  all 
events,  the  decision  of  the  Court  of  Queen's  Bench  in  Lane  v.  Tewson 
is  to  be  preferred  to  that  of  Mason  v.  Farnell.^ 

Crompton  repHed.  Cur.  adv.  vuU. 

The  judgment  of  the  court  was  now  delivered  by 

Pattesox,  J.^  .  .  .  The  question  is  whether  Menlove  &  Co.  could, 
under  the  circumstances,  insist  upon  the  delivery  of  the  cargo  to  them 
or  their  agents  unless  the  bills  were  duly  honored.  It  was  contended 
for  the  plaintiffs,  the  assignees,  that,  by  dehvery  of  the  goods  on  board 
the  bankrupt's  own  ship,  specially  appointed  for  the  purpose  of  bring- 
ing home  those  goods,  and  such  deHvery  being  made  to  the  master, 
who  was  the  bankrupt's  agent  for  the  purpose  of  receiving  them,  the 
absolute  property  vested  in  them,  the  sale  being  complete  by  the  accept- 
ance of  the  order  and  the  terms  of  the  invoice ;  and  that  the  terms  of 
the  bill  of  lading,  by  which  the  goods  were  to  be  delivered  at  Liver- 
pool to  order  or  to  our  (Menlove  &  Co.'s)  assigns,  did  not  prevent  such 
absolute  property  vesting  in  the  bankrupts,  nor  entitle  Menlove  &  Co., 
the  unpaid  vendors,  to  any  right  of  stoppage  in  transitu,  or  any  other 
right  over  them  whatever ;  and  more  especially  as  it  was  stated  that  no 
freight  was  to  be  paid  for  the  cotton,  being  owner's  property,  which 
was  inconsistent  with  the  property  remaining  in  Menlove  &  Co.  It 
was  also  further  contended  for  the  plaintiffs,  that  the  captain  had  no 
power  to  bind  the, bankrupts  by  the  special  terms  of  the  bill  of  lading, 
and  that  the  delivery  must  be  taken  to  be  absolute  to  the  vendees,  and 
further,  that  if  Menlove  &  Co.  had  any  lien,  the  assignment  of  the  bills 
of  lading  to  the  bank  divested  that  lien,  and  deprived  Menlove  &  Co. 
of  all  power  over  the  goods. 

The  cases  mainly  relied  upon  by  them  in  support  of  their  principal 
point  were  Ogle  v.  Atkinson,^  Coxe  v.  Harden,^  the  case  of  The  Con- 
stantia,*'  Bohtlingk  v.  Inghs,"  and  the  case  of  Fowler  v.  Kymer  cited 
in  it.  All  these  cases,  however,  are  clearly  distinguishable  from  the 
present.*  .  .  . 

It  appears  by  the  bill  of  exceptions,  that  it  was  agreed  on  both  sides 
at  the  trial  that  there  was  no  question  of  fact  for  the  jury,  and  that  the 
judge  should  direct  them  how  they  should  give  their  verdict;  and  he 
being  of  opinion,  upon  all  the  facts  of  the  case,  that  Menlove  &  Co. 
had  not  delivered  the  cotton  on  board  the  ship  to  be  carried  for  and 
on  account  and  at  the  risk  of  the  bankrupts,  but  that  they  intended 
to  preserve  their  right  as  unpaid  vendors,  directed  the  verdict  to  be 

1  12  A.  &  E.  116,  n.  2  12  M.  &  W.  674. 

8  His  lordship's  statement  of  the  case  has  been  omitted.  —  Ed. 
*  5  Taunt.  759.  •"*  4  East,  211. 

6  6  Rob.  Adm.  Rep.  327.  "^  3  East,  381. 

8  His  lordship  here  stated  the  cases  cited.  —  Ed. 


SECT.  VI.]         TURNER   V.    TRUSTEES   OF   LIVERPOOL   DOCKS.  961 

entered  for  the  defendants.  Tliere  is  no  doubt  tliat  a  delivery  of 
goods  on  board  of  the  purchaser's  own  ship  is  a  delivery  to  him,  unless 
the  vendor  j^rotects  himself  by  special  terms  restraining  the  effect  of 
such  delivery.  In  the  present  case  the  vendors  by  the  terms  of  the 
bill  of  lading  made  the  cotton  deliverable  at  Liverpool  to  their  order 
or  assigns  ;  and  there  was  not,  therefore,  a  delivery  of  the  cotton  to 
the  purchasers  as  OAvners,  though  there  was  a  delivery  on  board  their 
ship.  The  vendors  still  reserved  to  themselves,  at  the  time  of  delivery 
to  the  captain,  the  jus  disjjonendi  of  the  goods,  which  he  by  signing 
the  bill  of  lading  acknowledged,  and  without  which  it  may  be  assumed 
that  the  vendors  would  not  have  delivered  them  at  all. 

The  question  really  is,  whether  any  and  what  effect  is  to  be  given  to 
the  terms  in  the  bill  of  lading  making  the  goods  deliverable  to  the 
order  of  the  vendors ;  for,  if  by  those  terms  they  reserved  to  them- 
selves the  dominion  over  the  cotton,  it  would  not  pass  to  the  assignees. 
The  invoice  would  pass  no  property,  whatever  its  terms  might  be ;  the 
property  would  only  pass  upon  delivery;  and  the  only  effect  to  be  at- 
tributed to  the  form  and  expressions  of  the  invoice  or  bill  of  lading 
would  be  as  indicating  the  terms  upon  which  the  goods  were  delivered. 

The  plaintiffs  in  error  rely  upon  the  tenns  of  the  invoice  and  the 
expression  in  the  bill  of  lading,  that  the  cotton  is  free  of  freight,  being 
OAvnei-'s  property,  as  showing  that  the  delivery  on  board  the  ship  was 
with  intention  to  pass  the  property  absolutely ;  but  the  oi)erativc  terms 
of  the  bill  of  lading,  as  to  the  deli\'ery  of  the  goods  at  Liverpool,  and 
the  letter  of  Menlove  &  Co.  of  the  28d  of  October,  show  too  clearly 
for  doubt,  that  notwithstanding  the  other  terms  of  the  bill  of  lading 
and  the  invoice,  Menlove  &  Co.  had  no  intention,  when  they  delivered 
the  cotton  on  board,  of  parting  with  the  dominion  over  it,  or  vest- 
ing the  absolute  property  in  the  bankrupts.  Ui:)on  this  part  of  the 
case,  the  decisions  of  the  Court  of  Exchequer  in  Van  Casteel  v.  Booker  ^ 
and  Wait  v.  Baker  ^  are  authorities  directly  in  fiivor  of  the  defendants. 

The  plaintiffs  further  insisted  that  the  captain  had  no  power  to  bind 
the  bankrupts  by  such  terms  in  the  bill  of  lading  as  would  leave  the 
property  still  in  the  control  of  the  vendors,  and  yet  engage  that  the 
cotton  should  be  freight  free.  Whether,  as  the  cotton  was  actually  car- 
ried, the  owners  of  the  ship  as  such  might  not  be  entitled  to  freight  upon 
a  quantum  mendt^  notwithstanding  the  terms  of  the  bill  of  lading,  is  a 
point  not  necessary  now  to  determine ;  but  with  respect  to  the  question 
whether  the  plaintiffs  could  set  up  the  want  of  authority  in  the  master 
as  a  ground  for  contending  that  there  was  an  absolute  delivery  of  the 
goods,  so  as  to  vest  the  property  iu  the  bankrupts  immediately  upon 
the  delivery,  notwithstanding  the  special  terms  upon  which  they  were 
delivered  and  accepted  by  the  captain,  we  are  clearly  of  opinion  that 

1  2  Exch.  G9L  2  2  Excb.  1. 


962  TURNER   V.    TRUSTEES   OF   LIVERPOOL   DOCKS.         [CHAP.  II. 

it  is  not  competent  to  them  to  do  so ;  and  that  as  Menlove  &  Co.  de- 
livered the  cotton  on  board  upon  special  terms,  which  the  captain  was 
not  bound  to  accept,  but  without  which  they  would  not  have  delivered 
them,  and  which  would  jjreserve  to  themselves  the  control  over  them, 
the  bankrupts  cannot  treat  the  delivery  to  the  captain  as  a  delivery  to 
them  as  their  property,  when  it  was  expressly  agreed  that  they  wei-e 
not  to  be  delivered  to  the  bankrupt,  but  to  the  order  of  the  vendors ; 
and  the  want  of  authority  of  the  master  to  accept  them  on  such  terms 
will  not  have  the  effect  of  vesting  the  property  absolutely  in  the  bank- 
rupts. The  case  of  Mitchel  v.  Ede  ^  is  a  strong  authority  in  favor  of 
the  defendants. 

With  respect  to  the  question  whether  the  transfer  of  the  bills  of 
lading  by  themselves  to  the  Bank  of  Charleston  divested  their  power 
over  the  goods,  we  are  of  opinion  that  it  did  not ;  Menlove  &  Co.  were 
"t£e  vendors  of  the  goods,  and  reserved  to  themselves,  by  the  terms 
upon" which  they  delivered  them  on  boai'd  the  ship,  the  property  in 
those  goods  until  payment  duly  made.  By  indorsing  and  deposit- 
ing the  bills  of  lading  with  the  Bank  of  Charleston  as  a  security,  they 
did  not  divest  themselves  of  the  property  in  the  goods  which  they  had 
reserved,  and  were  in  a  situation  to  claim  the  goods  as  against  the 
bankrupts  by  their  agents  at  Liverpool.  They  never  had  divested 
themselves  of  the  property  in  the  goods,  nor  of  the  possession  except 
by  delivery  to  the  captain.  This  is  not  the  case  of  delivery  to  a  carrier 
for  the  purpose  of  his  delivering  them  to  the  vendee,  but  a  deliA'ery 
for  the  purpose  of  the  carrier  delivering  them  according  to  the  order 
of  the  vendor,  wdio  retains  more  than  a  mere  lien  upon  the  goods. 
Neither  the  bankrupts  nor  the  assignees  ever  had  the  property  in  the 
cotton  as  against  the  vendors,  and  the  objection  to  their  title  may 
properly  be  taken  under  the  plea  of  not  possessed.  It  was  said  that  as 
Menlove  &  Co.  had  funds  of  the  bankrupts  in  their  hands  to  some 
though  to  a  very  small  extent,  they  were  not  unpaid  vendors  to  the 
full  extent ;  but  this  really  makes  no  difference,  as  no  particular  portion 
of  the  cotton  was  bought  with  those  funds;  and  the  bulk  generally 
being  purchased  by  Menlove  &  Co.  with  their  own  funds  or  credit, 
they  retained  their  property  in  the  whole  of  the  goods  until  payment 
for  the  whole. 

A  question  was  made  as  to  the  admissibility  of  some  of  the  evi- 
dence ;  but  as  no  matter  of  fact  was  in  question  for  the  jury,  and  we 
are  of  opinion  that,  independently  of  the  evidence  objected  to,  there 
was  sufficient  im objectionable  evidence  to  warrant  the  direction  of  the 
judge,  it  has  become  immaterial  to  consider  whether  the  evidence  that 
was  objected  to  was  receivable  or  not.  Our  judgment,  therefore,  is  for 
the  defendants  in  error,  and  the  judgment  in  the  court  below  must  be 
affirmed.  Judgment  affirmed. 

1  11  A.  &  E. 


L^t^^i-^^^-^    ct^Uc^f^^^-y  ^//C> 


SECT.  TL]  KET-tr.   COTESWdRTfiT, 


KEY  AXD  Others  v.  COTESWORTH  a>-d  Others. 
\\    «         In  the  Exchequer,  May  8, 1852. 

\~^'       j^^  [Reported  in  7  Exchequer  Reports,  595.] 

Assumpsit  for  money  received  by  the  defendants  for  the  use  of  the 
plaintiffs.     Plea,  ?io?i  assimipseriint ;  upon  which  issue  was  joined. 

At  the  trial  before  Martin,  B.,  at  the  London  sittings  after  last 
Trinity  term,  it  appeared  that  the  action  was  brought  to  recover  the 
sum  of  £671  16s.  9^?.,  being  the  proceeds  of  two  cargoes  of  Indian  silk 
handkerchiefs,  consigned  by  the  plaintiffs,  merchants  at  Madras,  carry- 
ing on  business  under  the  firm  of  Bunny  &  Co.,  to  the  defendants, 
merchants  in  London,  under  the  following  circumstances,  which  Avere 
mainly  admitted  on  both  sides :  In  the  year  1845,  Messrs.  Kilgour  & 
Leith,  merchants  at  Glasgow,  were  desirous,  through  the  defendants, 
their  London  agents,  of  procuring  Indian  silk  handkerchiefs  from  the 
plaintiffs  at  Madras;  and  accordingly,  on  the  7th  August,  1845,  Ivil- 
gour  &  Leith  w^rote  to  the  defendants  as  follows :  — 

We  beg  to  acknowledge  the  receipt  of  ycrur  fovors  of  31st  ult.  and  oth  inst. 
We  find  it  does  not  answer  your  views  to  execute  our  friends'  order  for  India 
coods.  We  thought  you  would  have  considered  this  not  as  an  isolated  transac- 
tion,  but  as  one  connected  with  our  account,  and  that  of  our  friends,  whose  other 
business  we  have  directed  to  come  through  your  house,  and  which  will  extend  to 
£12,0U0  or  £15,000  per  annum.  It  certainly  will  take  some  time  before  the  first 
order  can  be  brought  forward,  but  afterwards  the  same  quantity  would  be  re- 
quired every  three  or  four  months.  We  did  not  think  the  liability  great,  as  the 
eoods  would  of  course  remain  under  your  control  till  settled  for.  However,  to 
save  all  trouble  in  the  ordering,  &c.,  we  have  arranged  to  have  the  goods  made 
in  Madras,  and  shipped  from  thence  to  England ;  we  presume  you  will  take  them 
as  a  consignment,  and  on  receipt  of  bill  of  lading  accept  for  same.  We  will 
thank  you  to  say  as  to  this  soon. 

In  answer  to  that  letter,  the  defendants,  on  the  Oth  of  August,  wrote 
to  Kiloour  &  Leith  in  these  terms :  — 

We  will  answer  your  proposition  respecting  the  credit  for  the  purchase  of 
Madras  handkerchiefs ;  in  the  mean  time  please  to  inform  us  at  what  date  your 
friends  would  draw  on  us  for  the  cost ;  whether  you  contemplate  putting  us  in 
funds  at  their  maturity,  or  do  you  intend  the  credit  we  have  granted  to  you  to  be 
made  available  in  part  for  this  business. 

On  the  11th  of  August,  Kilgour  &  Leith  wrote  to  the  defendants  as 
follows :  — 


964  KEY   V.    COTESWORTH.  [CHAP.  II. 

The  drafts  for  the  Indian  goods  would  be  at  six  months'  sight,  and  accompanied 
by  bill  of  lading.  We  propose  you  accept  for  these  goods  as  against  a  consign- 
ment of  produce,  we  providing  funds  at  maturity,  or  before  if  reshipped  to  the 
West  Indies.  We  do  not  intend  that  the  credit  we  have  at  present  with  you  shall 
be  made  available  for  this  business  ;  we  want  the  handkerchiefs  to  represent  the 
draft  against  them  till  shipped  for  our  friends  in  the  West. 

On  the  18th  of  August,  the  defendants  wrote  to  Kilgour  &  Leith  in 
these  terms:  — 

With  reference  to  the  credit  you  require  for  the  cost  of  India  goods  to  be 
ordered  from  Madras,  we  are  willing  to  grant  it  you,  knowing  the  firm  to  whom 
you  transmit  the  order ;  we  will  send  you  the  necessary  letter  of  credit. 

On  being  informed  that  the  plaintiffs  were  the  persons  to  whom 
Messrs.  Kilgour  &  Leith  desired  the  letters  of  credit  to  be  given,  on 
the  17th  of  September,  the  defendants  wrote  to  the  plaintiffs  as  fol- 
lows :  — 

At  the  request  of  Messrs.  Kilgour  &  Leith,  of  Glasgow,  we  beg  to  open  credit 
in  your  favor  to  the  extent  of  £1500,  to  be  applied  to  the  execution  of  an  order 
they  have  given  you  for  Madras  handkerchiefs,  and  for  cost  of  which,  as  pro- 
duced, you  may  draw  on  us  at  the  customary  date,  on  forwarding  bills  of  lading 
to  our  order,  and  timely  orders  for  insurance. 

On  the  7th  of  November,  the  plaintiffs  wrote  to  the  defendants :  — 

We  have  the  pleasure  to  acknowledge  the  receipt  of  your  letter  on  the  17th 
of  September,  handed  to  us  by  Messrs.  Scott,  Bell,  &  Co.,  authorizing  us  to 
draw  on  you  to  the  extent  of  £1500,  in  execution  of  an  order  for  handkerchiefs, 
on  account  of  Messrs.  Kilgour  &  Leith,  of  Glasgow.  We  shall  gladly  avail  of 
this  authority,  shipping  the  goods  to  your  order,  and  giving  you  timely  advice, 
that  you  may  effect  insurance  on  your  side. 

The  plaintiffs  accordingly  executed  the  order,  and  forwarded  the 
goods  and  bill  of  lading  to  the  defendants,  who  received,  accepted,  and 
paid  the  bills  drawn  on  them,  in  accordance  with  the  letter  of  the  17th 
of  September,  to  the  extent  of  £1500  therein  mentioned;  and  this 
transaction  was  closed. 

On  the  5th  of  February,  1847,  Messrs.  Kilgour  &  Leith  wrote  to  the 
plaintiffs  as  follows :  — 

Inclosed  are  patterns  of  a  third  order  for  handkerchiefs,  which  we  will  thank 
you  to  have  put  in  hand  immediately  on  receipt.  This  order  has  been  too  long 
delayed ;  and  if  you  can  by  any  means  hurry  execution  we  shall  feel  particularly 
obliged.     You  will  draw  for  cost,  and  consign  goods  as  before. 

The  patterns  were  inclosed,  together  with  a  detail  of  the  order. 
The  goods  thus  ordered  were  shipped  for  England  in  two  vessels,  the 
Providence  and  the  Essex.  The  goods  by  the  Providence  were 
shipped  on  the  21st  of  August,  1847 ;  and  they,  as  well  as  the  goods 
shipped  in  the  Essex,  were  stated  in  the  admissions  to  have  been 


SECT.  VI.]  KEY   V.    COTESWORTH.  965 

shi])ped   on  the  said    order,  and    on   account   of  Messrs.    Kilgour   & 
Leith. 

On  the  same  day  (21st  of  August,  1847)  the  i)laintifts  wrote  to  the 
defendants  as  follows :  — 

By  the  desire  of  our  mutual  friends,  Messrs.  Kilgour  &  Leith,  of  Glasgow,  we 
beg  to  hand  you  herewith  invoice  and  bill  of  lading  for  nine  cases  Madras  hand- 
kerchiefs, shipped  on  the  Providence,  Captain  S.  Hicks,  to  your  address,  and 
against  which  we  have  as  usual  drawn  upon  you  at  six  months  for  the  equivalent  of 
the  amount  of  invoice,  in  £369  2s.  Id.,  being  at  the  current  exchange  of  '2s.  per 
rupee,  and  which  will  no  doubt  be  duly  protected.  These  goods  have  been 
placed  in  a  cabin  to  prevent  the  chance  of  their  sustaining  injur}-  from  the  cargo, 
and  as  they  have  not  been  insured,  we  trust  you  will  cover  the  risk  on  your  side. 

The  bill  of  lading  and  invoice  mentioned  in  this  letter  Avere  enclosed, 
and  the  letter  and  its  contents  received  by  the  defendants  on  the  "iCth 
of  October  in  due  course.  By  the  bill  of  lading,  which  bore  date  the 
21st  of  August,  the  goods  Avere  deliverable  at  London  to  the  defend- 
ants or  their  assigns,  they  paying  freight,  &c.  The  invoice,  which  was 
also  dated  August  21,  stated  that  the  goods  were  consigned  to  the  de- 
fendants, "  on  account  and  risk  of  Messrs.  Kilgour  &  Leith,  Glasgow." 

The  goods  by  the  Essex  were  shipped  on  the  9th  of  October.  A  bill 
of  lading,  indorsed  in  blank  by  the  plaintiffs,  and  an  invoice  substan- 
tially in  the  same  form  as  the  above,  were  enclosed  in  a  letter  from  the 
plaintiffs  to  the  defendants,  dated  the  12th  of  October,  and  which  was 
received  by  the  defendants  on  the  22d  of  November.  This  letter  was 
as  follows :  — 

By  desire  of  our  mutual  friends,  Messrs.  Kilgour  &  Leith,  of  Glasgow,  we 
have  the  pleasure  to  band  you  herewith  invoice  and  bill  of  lading  for  eight  cases 
Ventapollam  handkerchiefs,  shipped  in  the  Essex,  Captain  W.  X.  Howard,  to 
your  care ;  and  we  have  as  usual  drawn  upon  you  af  six  months  for  the  equivalent 
of  the  amount  of  invoice  in  £.'502  ]3.s\  8d.,  being  at  the  current  exchange  of  Is. 
ll^d.  per  rupee,  and  which  will  doubtless  meet  due  honor.  We  leave  the  insur- 
ance to  be  effected  on  your  side. 

On  the  27th  of  October,  Messrs.  Kilgour  &  Leith  stop])ed  payment. 
The  goods  by  the  Providence  arrived  in  London  on  the  21st  of  Octo- 
ber, the  goods  by  the  Essex  on  the  3d  of  March,  1848.  Both  parcels 
were  received  by  the  defendants  under  the  bills  of  lading,  and  both 
were  sold  by  them,  and  the  proceeds,  amounting  to  £C71  15s.  9d., 
sought  to  be  recovered  in  this  action,  received  by  the  defendants. 
Messrs.  Kilgour  &  Leith  were  before  and  at  the  time,  and  still  are, 
indebted  to  the  defendants  on  a  balance  of  account  in  a  larger  sum. 

On  the  21st  of  October,  Scott,  Bell,  &  Co.,  the  plaintiffs'  correspond- 
ents in  London,  having  received  the  bill  drawn  against  the  goods  by 
the  Providenae,  caused  it  to  be  presented  for  acceptance  to  the  defend- 
ants, who  ultimately  refused  to  accept  it.  The  second  bill  was  also 
VOL.  I.  62 


966  KEY   V.    COTESWORTH.  [CHAP,  II. 

presented  for  acceptance  on  the  22cT  of  November,  and  dishonored,  and 
both  bills  were  duly  protested. 

Upon  the  foregoing  evidence,  the  learned  judge  was  of  opinion  that 
there  was  no  question  for  the  jury,  and  nonsuited  the  jDlaintiffs.-' 

Sir  F.  Thesiger,  in  the  following  term,  obtained  a  rule  nisi  to  set 
aside  the  nonsuit,  and  for  a  new  trial ;  against  which 

Knowles  and  Willes  showed  cause.  The  plaintiifs  cannot  maintain 
this  action,  unless  they  were  the  owners  of  the  goods  at  the  time  of  their 
sale.  It  is  submitted,  however,  that,  under  the  circumstances,  they  had 
ceased  to  have  any  interest  in  the  goods,  and  that  both  the  property 
and  right  of  possession  vested  in  Kilgour  &  Leith.  Alexander  v.  Gard- 
ner.^ The  invoice  states  that  the  goods  were  shipped  "  on  account  and 
risk"  of  Kilgour  &  Leith,  and  any  loss  in  the  course  of  the  voyage  must 
have  been  sustained  by  them.  If  they  had  indorsed  over  the  bills  of 
lading,  the  indorsee  would  have  been  entitled  to  the  goods.  Lickbarrow 
V.  Mason.^  Since,  then,  the  plaintiifs  could  not  have  maintained  trover 
if  the  bills  of  lading  had  been  negotiated,  how  can  they  now  recover 
the  proceeds  of  the  sale  as  money  received  for  their  use  ?  The  accept- 
ance of  the  bills  by  the  defendants  was  not  a  condition  precedent  to  the 
vesting  of  the  property  in  Kilgour  &  Co.  In  Wilmshiirst  v.  Bowker,^ 
a  quantity  of  wheat  was  sold,  to  be  paid  for  by  banker's  draft  on 
London,  at  two  months,  to  be  remitted  by  the  vendee  on  receipt  of  the 
invoice  and  bill  of  lading ;  and  it  Avas  held  in  the  Exchequer  Chamber, 
reversing  the  judgment  of  the  Court  of  Common  Pleas,  that,  by  the 
delivery  of  the  wheat  on  board  a  vessel  for  the  account  and  at  the  risk 
of  the  vendee,  and  the  transmission  of  the  bill  of  lading  indorsed  by  the 
vendor,  the  latter  had  jiarted  with  his  property  and  right  of  possession, 
and  could  not  stop  the  wheat  in  transitu^  on  fiilure  of  the  vendee  to 
remit  the  banker's  draft.  So  here  the  plaintiffs,  by  the  transmission  of 
the  bills  of  lading,  have  enabled  Kilgour  &  Co.  to  deal  with  the  goods 
as  their  own.  If  the  plaintiffs  had  intended  to  retain  any  control  over 
the  property,  they  should  have  indorsed  the  bills  of  lading  specially,  or 
have  sent  them  to  their  agents,  with  the  bills  of  exchange  annexed.  But 
the  bills  of  lading  were  received  by  the  defendants  before  the  plaintiffs' 
agents  received  the  bills  of  exchange,  which  shows  that  they  were  never 
intended  to  be  simultaneous  acts.  The  property  vested  absolutely  in 
Kilgour  &  Leith,  and  the  plaintiffs'  remedy  (if  any)  was  by  an  action 
against  the  defendants  for  not  accepting  the  bills.  [Paeke,  B.  Is  not 
the  fact  of  the  bills  of  lading  being  accompanied  with  that  stipidation, 
evidence  for  the  jury  that  the  plaintiffs  did  not  intend  the  property  to 
pass  unless  the  bills  were  accepted  ?]  There  was  nothing  for  the  jury 
to  determine,  because  there  was  no  evidence  from  which  they  could 

^  The  statement  of  the  case  has  been  slightly  abbreviated.  —  Ed. 
2  1  Bing.  N.  C.  671.  3  2  T.  R.  63.  «  7  M.  &  Gr.  882. 


SECT.  VI.]  KEY   V.    COTESWORTH.  967 

infer  a  condition  either  precedent  or  subsequent.  If  any  condition 
exists,  that  forms  part  of  the  contract,  and  it  is  for  the  court  to  deter- 
mine its  meaning,  and  say  whether  it  is  conditional  or  not.  Hutchinson 
I).  Bowker;^  Neilson  v.  Harford ;  -  Taylor  on  Evidence,  vol.  i.  p.  42. 
Here  all  the  facts  admit  of  but  one  construction,  viz.,  that  the  property 
was  intended  to  vest  absolutely  in  the  consignees.  Howes  v.  Ball  ^  and 
Brandt  v.  Bowlby  *  are  instances  of  conditional  contracts.  In  the  cases 
relied  on  by  the  other  side,  the  conduct  of  the  parties  was  at  variance 
with  what  the  terms  of  the  document  implied,  and  that  aiforded  evi- 
dence of  a  condition. 

The  Attorney -General  {Montague  Smith  with  him),  in  support  of 
the  rule.  It  was  for  the  jury  to  decide  what  was  the  nature  of  the 
contract,  which,  it  is  submitted,  was  conditional  only ;  and  without  per- 
formance of  the  condition,  viz.,  the  acceptance  of  the  bills,  no  property 
passed  to  the  consignees.  It  is  important  to  consider  the  previous 
transactions  between  the  parties,  since  the  letter  of  the  5th  of  February, 
which  contains  the  order  in  question,  refers  to  them  in  these  terms : 
"  You  will  draw  for  cost,  and  consign  goods  as  before."  It  is  coHceded 
that,  if  the  contract  depended  entirely  on  written  documents,  the  court, 
and  not  the  jury,  Avould  have  to  determine  its  meaning.  But  there  is 
no  written  contract  between  these  parties.  Neither  the  order,  nor  the 
bill  of  lading,  nor  the  invoice,  taken  separately  or  collectively,  consti- 
tute the  contract.  The  mere  assignment  of  the  bill  of  lading  does  not 
confer  on  the  assignee  any  right  either  of  property  or  possession  in  the 
goods,  but  is  only  evidence  that  he  has  acquired  such  right.  Blackburn 
on  Contracts,  p.  279 ;  Mitchel  v.  Ede.^  Van  Casteel  v.  Booker®  is  also 
an  authority  to  show  that  the  form  of  the  bill  of  lading  and  language 
of  the  invoice  are  not  conclusive,  but  that  it  is  the  province  of  the  jury, 
looking  to  all  the  circumstances,  to  determine  what  is  the  nature  of  the 
contract.  [Martin,  B.  referred  to  Turner  v.  Th(!  Liverpool  Dock  Com- 
pany.'] The  original  transaction  depends  upon  the  letter  of  credit  of 
the  17th  of  September,  1845.  Kilgour  &  Leith  had  corresponded  with 
the  defendants  for  the  purpose  of  inducing  them  to  become  responsible 
for  the  payment  of  the  goods,  which  the  plaintiffs  would  not  have  sup- 
plied unless  the  due  payment  were  secured  by  the*  acceptance  of  the 
defendants.  Therefore,  so  far  as  respects  that  transaction,  it  was  con- 
ditional. The  drawing  was  to  be  "  against  the  consignment,"  which  is 
a  well-understood  mercantile  expression.  Whether  it  was  a  condition 
precedent,  defeating  the  transfer,  or  a  condition  subsequent,  revesting 
the  property  on  breach  of  it,  was  a  question  to  be  determined  by  the 
jury ;  and  in  coming  to  a  conclusion  on  that  point,  they  should  have 

1  5  M.  &  W.  535.  2  8  M.  &  W.  806.  '  1  Man.  &  R.  288. 

*  2  B.  &  Ad.  932.  ^  n  a.  &  E.  888.  e  2  Exch.  691. 

7  6  Exch.  543. 


968  KEY   V.    COTESWORTH.  [CHAP.  II. 

considered  what  had  taken  place  with  respect  to  the  previous  consign- 
ments, which  were  satisfied.  In  Wilmshurst  v.  Bowker,^  Lord  Abinger, 
C.  B.,  says,  "  We  accede  to  the  general  principle  laid  down  by  the 
court  below;  and  if  the  facts  had  been  before  a  jury,  we  are  not  pre- 
pared to  say  that  they  might  not  have  drawn  the  inference  that  the 
remitting  of  a  banker's  draft  Avas  a  condition  precedent  to  the  vesting 
of  the  property  in  the  wheat  in  the  plaintiffs."  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Parke,  B.     [After  stating  the  facts,  his  lordship  proceeded :]  It 
was  contended  at  the  trial,  on  behalf  of  the  plaintiffs,  that  the  sale  of 
the  handkerchiefs  was  a  sale  on  a  condition,  either  precedent  or  subse- 
quent, that  the  defendants  should  accept  the  bills  drawn  on  them  in 
respect  of  the  handkerchiefs ;  that,  upon  their  refusal  to  accept,  the  con- 
dition precedent  was  never  performed,  and  the  proj^erty  in  the  hand- 
kerchiefs never  passed  out  of  the  plaintiffs,  and  that  they  were  therefore 
entitled  to  them  or  their  proceeds ;  and  that,  if  this  were  not  so,  at  all 
events  it  was  subject  to  the  condition  subsequent,  that  the  defendants 
should  accept  the  bills,  and,  if  not,  the  property  should  revert,  which 
condition  was  broken ;  so  that  thereby  the  plaintiffs  became  entitled  to 
the  goods  or  their  proceeds :  and  whether  the  sale  was  on  a  condition 
or  not,  was  a  question  for  the  jury,  and  ought  to  have  been  left  to 
them.     On  the  other  hand  it  was  contended,  on  behalf  of  the  defend- 
ants, that  it  was  not  a  sale  upon  a  condition  at  all ;  that  it  was  an 
absolute  sale  by  the  plaintiffs  to  Messrs.  Kilgour  &  Leith ;  and  that, 
upon  the  shipment  of  the  goods  by  the  plaintiffs  on  account  and  risk  of 
Messrs,  Kilgour  &  Leith,  followed  up  by  the  transmission  of  the  bills  of 
lading  to  the  defendants,  —  one  bill  of  lading  making  them  the  con- 
signees, and  the  other  the  indorsees,  — the  property  and  possession  ab- 
solutely vested  in  Kilgour  &  Leith,  and  these  goods  thereby  became 
theirs,  and  were  at  their  sole  risk,  and  they  alone  were  entitled  to  them 
and  their  proceeds;  and  that,  if  the  plaintiffs  had  any  right  of  action 
against  the  defendants,  which  on  their  part  was  denied,  it  was  upon  a 
contract  to  accept  the  bills,  to  be  implied  from  the  acceptance  of  the 
goods,  with  notice  t)f  the  contents  of  the  letters  of  the  21st  of  August 
and  12th  of  October ;  and  that,  whether  it  was  a  sale  ujDon  a  condition 
or  not,  was  a  question  of  law  for  the  judge,  and  not  one  of  fact  for  the 
jury ;  the  entire  case,  so  far  as  related  to  the  contract  of  sale,  being  con- 
tained in  written  documents,  and  the  parties  never  having  had  any 
personal  communication  with  each  other.     The  learned  judge  was  of 
opinion  that  there  was  no  question  for  the  jury  in  this  case,  and  that  it 
was  for  him  to  decide  what  the  contract  was ;  and  he  thought  the  sale 
to  Messrs.  Kilgour  &  Leith  was  an  absolute,  not  a  conditional  one ;  that 

1  7  M.  &  Gr,  882. 


SECT.  VI.]  KEY   V.    COTESWORTH.  969 

the  property  vested  in  them  upon  the  delivery  on  board  the  sliip,  and 
the  transmission  of  the  bills  of  lading  to  the  defendants;  and  that  the 
plaintiffs  could  not  maintain  the  present  action  against  the  defendants, 
who  have  received  the  goods  and  disposed  of  them  under  the  authority 
of  Kilgour  &  Leith,  and  could  not  bring  an  action  for  the  proceeds ; 
and,  by  his  direction,  the  plaintiffs  were  nonsuited. 

We  are  of  opinion  that  the  ruling  of  the  learned  judge  was  correct. 
We  think  that  the  question,  what  was  the  contract  between  the  parties, 
was,  in  this  case,  entirely  one  of  law  for  the  judge  to  decide  upon ;  nor 
was  there  any  evidence  of  usage  to  which  the  letters  refer,  which 
would  be  matter  to  be  left  to  the  jury.  Looking  at  the  written  docu- 
ments alone,  the  learned  judge  was  quite  right  in  the  view  he  took  at  the 
trial,  that  the  property  vested  by  the  transmission  of  the  bills  of  lading 
in  the  manner  described  to  the  defendants,  with  the  invoices  at  the 
same  time.  If  it  had  been  the  intent  of  the  vendors  to  preserve  thqir 
right  in  that  property  until  the  bill  drawn  against  it  was  accepted,  they 
ought  to  have  transmitted  the  bills  of  lading  indorsed  in  blank  to  an 
agent,  to  be  delivered  over  only  in  case  the  accejitance  took  place. 
Having  delivered  them  without  that  qualification,  the  property  vested 
in  Kilgour  &  Leith,  or  the  defendants  as  their  agents.  Our  judgment 
in  this  case  is  in  conformity  with  that  of  the  Court  of  Exchequer 
Chamber  in  the  case  of  Wilmshurst  v.  Bowker ;  ^  but  there  is  a  passage 
in  the  judgment  of  Lord  Abinger  which  was  much  relied  on  by  the 
'  learned  counsel  for  the  plaintiffs.  The  circumstances  of  the  two  cases 
are  very  similar ;  and  Lord  Abinger  stated,  that,  if  the  facts  had  been 
before  a  jury,  he  was  not  prepared  to  say  that  they  might  not  have 
drawn  the  inference  that  the  remitting  of  the  banker's  draft,  the  mode 
of  payment  agreed  on  in  that  case,  was  a  condition  precedent  to  the 
vesting  of  the  property.  In  that  case  there  may  have  been  some  par- 
ticular facts  to  go  to  the  jury,  but  at  all  events  it  was  only  the  obiter 
dictutn  of  Lord  Abinger.  It  is  sufficient  to  say,  for  the  reasons  before 
given,  we  think  that  in  this  case  there  Avas  no  question  of  flict  as  to 
the  contract  to  be  submitted  to  the  jury.  Several  other  cases  were 
cited  on  collateral  points,  to  which  it  is  unnecessary  to  refer.  The  rule 
is  therefore  discharged.  Hide  discharged. 

1  7  M.  &  Gr.  882. 


C^;     i 


^  K,/; 


GODTS   V.   ROSE.  [CHAP.  II. 


GODTS   V.   ROSE. 
In  the  Common  Pleas,  November  22,  1855. 

[Reported  in  25  Laiv  Journal  Report,   Common  Pleas,  61.] 

Trover  for  casks  of  oil.  Pleas,  first,  not  guilty ;  and,  secondly,  that 
the  goods  were  not  the  goods  of  the  plaintiff.     Issues  thereon. 

The  action  Avas  tried  before  Jervis,  C.  J.,  at  the  sittings  for  London 
after  last  Trinity  term,  when  it  appeared  that  the  plaintiflf,  a  commis- 
sion merchant,  on  the  12th  of  March,  1855,  sold  to  the  defendant,  an 
oil  and  color  merchant,  through  Soanes  &  Sons,  brokers,  acting  on 
behalf  of  both  the  plaintiff  and  the  defendant,  five  tons  of  foreign  rape 

oil  on  the  following  contract :  — 

London,  March  12,  1855. 

Bought  for  account  of  Mr.  W.  A.  Rose,  of  U.  A.  Godts,  five  tons  of  first 

quality  foreign  refined  rape  oil,  at  53s.  per  cwt.,  usual  allowances.     To  be  free 

delivered  and  paid  for  in  fourteen  days  by  cash,  less  £2  10s.  per  cent  discount. 

(Signed)  Geo.  Soanes  &  Son,  Brokers. 

The  plaintiff,  on  receipt  of  the  sold  note  from  the  brokers,  gave  to 
the  wharfinger,  Humphery,  at  whose  wharf  he  had  some  oil,  the  fol- 
lowing transfer  order :  — 

London,  March  13,  1855. 
No.   1122. 

To  the  Superintendent  of  Hibernia  Wharf. 

Please  transfer  to  the  order  of  W.  A.  Rose,  Esq.,  ex  Neptune,  from  Havre, 
entered  with  charges,  from  mark  Nos.  46-56,  eleven  pipes  refined  rape  oil. 


(Signed) 


U.    A.    GODTS. 


I 


'^\; 


The  wharfnger  thereupon  gave  the  plaintiff  the  following  notice  of 
transfer,  directed  to  the  defendant :  — 

Hibernia  Wharf,  Southwark,  March  13,  1855. 
W.  A.  Rose, 

Sir,  — I  have  received  an  order  from  U.  A.  Godts,  for  46-56,  eleven  casks 

rape  oil,  ex  Neptune,  from  Havre,  which  are  transferred  to  your  name. 

(Signed)         For  John  Humphery,  T.  N.  Sampson. 

The  plaintiff's  clerk  immediately  went  with  this  notice  of  transfer 
to  the  defendant's  counting-house  and  delivered  it  to  the  defendant's 
clerk,  together  with  an  invoice  of  the  oils,  and  demanded  a  check  in 
payment ;  this  was  refused  by  the  defendant's  clerk,  on  the  ground 
that  the  plaintiff  was  not  entitled  to  be  paid  until  fourteen  days  after 
delivery.  The  plaintiff's  clerk  then  demanded  to  have  the  notice  of 
transfer  returned  to  him,  but  the  defendant's  clerk  refused  to  do  so 
an^  refined  it,  and  ^^  the  same  day  sent  to  the  wharfinger,  who 


vS 


r 


SECT.  VI,]  GODTS   V.  ROSE.  971 

delivered  to  the  defendant  a  portion  of  the  oil.  Before  the  whole  had 
been  delivered,  the  plaintiff  went  to  the  wharfinger  and  countermanded 
the  delivery ;  but  the  latter,  being  of  opinion  that  the  property  in  the 
oil  had  passed  to  the  defendant,  delivered  the  whole  to  him,  where- 
upon the  plaintiff  brought  this  action. 

The  broker  was  called  as  a  witness  for  the  plaintiff,  and  on  cross- 
examination  stated  that  the  commercial  meaning  of  the  contract  was 
that  the  seller  would  have  fourteen  days  to  deliver,  and  the  buyer  four- 
teen days  to  pay  after  delivery ;  that  it  was  customary  to  require  pay- 
ment on  delivery,  but  that  such  was  not  the  meaning  of  the  contract. 
On  re-examination,  however,  he  stated  that  the  seller  may  deliver 
within  fourteen  days  and  require  payment.  The  jury  found  that  the 
plaintiff's  clerk  did  not  intend  to  part  with  the  oil  or  the  notice  of 
transfer  without  the  check,  and  that  he  said  so  at  the  time.  The 
learned  judge  directed  a  nonsuit  to  be  entered,  and  reserved  leave  to 
the  plaintiff  to  move  to  enter  a  verdict  for  £265. 

£yles,  Serjt.,  having  obtained  a  rule  nisi  accordingly, 
Eaymond  now  showed  cause.     By  the  contract  the  property  in  the  . 
oil  and  the  right  to  the  possession  passed  to  the  defendant,  and  he 
might  have  seized  it  anywhere.     The  contract  means  that  the  delivery 
is  to  precede  payment,  as  in  Staunton  v.  Wood,^  and  parol  evidence 
was  not  admissible  to  explain  it.     [Jervis,  C.  J.     No  point  as  to  the 
admissibility  of  such  evidence  was  made   at  the  trial,  and  it  Avas  the 
defendant's  counsel  who  cross-examined  the  plaintiff's  witness  as  to 
the  meaning  of  the  contract.     The  result  of  that  evidence  was,  that 
delivery  and  payment  were  to  be  concurrent  acts  within  fourteen  days.] 
The  contract  speaks  for  itself,  and  it  is  similar  to  that  in  Spartali  v. 
Benecke,^  where  the  plaintiff  sold  wool  to  the  defendant,  "  to  be  paid 
for  by  cash  in  one  month,  less  £5  per  cent  discount,"  and  the  court 
held  that  the  vendee  was  entitled  to  a  delivery  of  the  wool  within  the 
month  without  payment  of  the  price.     So  here  the  vendee  is  entitled 
to  a  delivery  Avithin  fourteen  days,  and  the  vendor  is  not  entitled  to 
payment  until  fourteen  days  after  delivery.     If,  therefore,  the  defend- 
ant was  entitled  to  the  possession  of  the  goods  before  payment,  M'hen 
once  he  had  got  possession  he  was  entitled  to  keep  it,  and  the  plain- 
tiff's only  remedy  Avould  be  by  action  to  recover  the  price.     What 
passed  with  the  wharfinger  is,  therefore,  immaterial.     But  supposing 
the  right  of  possession  did  not  pass  to  the  defendant  by  the  contract, 
still  there  was  a  complete  delivery  of  the  goods  to  him,  inasmuch  .as 
when  the  plaintiff  sent  the  transfer  order  to  the  wharfinger,  the  latter 
transferred  the  oil  to  the  defendant's  name,  and  gave  him  notice  that 
he  had  done  so.     As  between  vendor  and  vendee  the  notice  Avas  im- 

1  16  Q.  B.  Rep.  638. 

2  10  Com.  B.  Rep.  212;  s.  c.  19  Law  J.  Rep.  (N.  S.)  C.  P.  293. 


972  GODTS   V.    ROSE.  [CHAP.  II. 

material,  and  if  a  transfer  was  necessary  to  pass  the  propei-ty  it  was 
given,  and  was  irrevocable.  In  Swanwick  v.  Sothern  ^  it  was  held 
that  if  the  identity  and  quantity  of  the  goods  are  ascertained,  the 
transfer  in  the  books  of  the  wharfinger  is  sufficient  to  pass  the  property 
in  the  goods  as  between  buyer  and  seller ;  and  in  this  case  no  point 
was  made  at  the  trial,  that  the  sale  was  not  of  any  specific  quantity  of 
oil.  If  the  plaintift"  intended  to  insist  on  his  right  to  payment  before 
delivery,  he  ought  to  have  done  so  before  giving  the  transfer  order ;  but 
when  he  had  given  that,  and  the  wharfinger  had  acted  upon  it,  it  was 
too  late  to  object  to  the  delivery  without  payment. 

Byles,  Serjt.,  and  //.  James^  in  support  of  the  rule.  The  property  in 
the  oil  and  the  right  of  the  possession  did  not  pass  by  the  contract  of 
sale,  the  contract  not  being  for  any  specific  oil.  The  vendor  might 
have  performed  his  contract  by  delivering  oil  from  any  of  his  ware- 
houses, and  it  cannot  be  contended  that  the  vendee  might  have  gone 
to  any  one  of  them,  and  seized  any  five  tons  answering  the  description 
in  the  contract.  The  present  case  is  distinguishable  from  Spartali  v. 
Benecke,  for  the  contract  there  was  silent  as  to  when  the  goods  were 
to  be  delivered,  but  here  they  are  to  be  "  free  delivered  and  paid  for 
in  fourteen  days  by  cash,"  the  time  applying  as  well  to  the  delivery  as 
to  the  payment,  and  the  vendee  was  not  entitled  to  delivery  without 
payment.  But  if  there  were  any  doubt  as  to  that,  it  was  cleared  up 
by  the  parol  evidence  introduced  by  the  defendant's  counsel  on  cross- 
examination.  As  to  the  other  point,  there  never  was  a  complete 
delivery  so  as  to  preclude  the  plaintiff  from  suing  in  trover.  The  oil 
was  to  be  free  delivered  where  the  vendee  pleased ;  he  was  not  bound 
to  accept  a  dehvery  at  the  wharfinger's,  nor,  on  the  other  hand,  was 
the  vendor  bound  to  deliver  that  specific  oil  at  that  particular  time  or 
place;  he  therefore  appends  a  condition  to  the  transfer  order,  that  it  is 
not  to  operate  unless  the  vendee  gives  a  check.  The  notice  to  the 
vendee  was  not  absolute,  but  conditional ;  and  with  the  condition  the 
vendee  refused  to  comply,  whereupon  the  plaintiff"  had  a  right,  which 
he  exercised,  to  revoke  the  authority  to  deliver  given  to  the  wharfinger. 
Until  the  defendant  accepted  the  delivery  to  the  wharfinger,  there  was 
no  delivery  to  bind  him  ;  there  could  be  none,  therefore,  to  bind  the 
plaintiff",  and  the  plaintiff'  could  not  have  sued  the  defendant  if  the 
latter  had  refused  to  accept  the  wharfinger  as  his  agent.  Where  prop- 
erty is  assigned  by  deed  to  a  trustee  in  trust  for  a  third  party,  the  deed 
is  revocable  until  assented  to  by  the  cestui  que  trust.  Garrard  v.  Lord 
Lauderdale  "^  and  Harland  v.  Binks.^  In  all  the  cases  in  which  it  has 
been  held  that  the  transfer  in  the  wharfinger's  books  amounts  to  a 
delivery,  the  vendee  has,  by  taking  the  transfer  order  himself  to  the 

1  9  Ad.  &  E.  895.  2  3  Sim.  1. 

3  15  Q.  B.  Rep.  713 ;  s.  c.  20  Law  J.  Rep.  (N.  S.)  Q.  B.  126. 


SECT.  VI.]  GODTS   V.  ROSE.  973 

wharfinger,  made  the  latter  his  agent.  Here  the  defendant's  option  of 
making  tlie  wharfinger  his  agent  was  subject  to  the  condition  of  first 
giving  the  phiintiff  a  check ;  he  refused  to  comply  with  that  condition, 
and  the  wharfinger,  therefore,  never  was  his  agent. 

Jervis,  C.  J.  I  am  of  opinion  that  this  rule  ought  to  be  made  abso- 
lute. Several  objections  have  been  made  to  the  maintenance  of  this 
action,  but  I  do  not  think  that  any  of  tlieni  are  entitled  to  prevail.  It 
is  first  said  that  parol  evidence  was  not  admissible  to  explain  the 
written  contract,  but  it  hardly  lies  in  the  mouth  of  the  defendant  to 
make  that  objection,  as  it  was  he  himself  who  extracted  the  evidence 
on  cross-examination  of  the  plaintiff's  witness.  The  result  of  it  was, 
that  the  seller  may  deliver  at  any  time  within  fourteen  days,  and  at  the 
time  of  delivery  require  payment.  Then  it  is  said  that  such  a  con- 
struction conflicts  with  the  decision  of  tliis  court  in  Spartali  v.  Ben- 
ecke ;  but  that  is  not  so.  The  contract  in  that  case  was  not,  as  here, 
that  the  goods  should  be  free  delivered  and  paid  for  within  a  specified 
time,  but  that  they  should  be  paid  for,  without  saying  when  they  were 
to  be  delivered,  within  a  specified  time.  The  court,  therefore,  in  that 
case  decided,  as  I  think  rightly,  that  the  buyer  was  entitled  to  a  deliv- 
ery of  the  goods  at  any  reasonable  time  after  the  date  of  the  contract, 
within  the  time  specified  ;  and  that  the  seller  was  not  entitled  to  pay- 
ment of  the  price  before  the  end  of  that  time.  But  in  this  case  the 
goods  are  to  be  delivered  and  paid  for,  that  is,  each  event  is  to  happen 
in  fourteen  days.  I  think,  therefore,  that  the  plaintift'  's  contention  is 
right,  and  it  was  supported  by  the  evidence  given  at  the  tiial,  that  the 
seller  had  fourteen  days  within  which  he  might  deliver,  and  that  he 
was  entitled  to  call  for  payment  at  the  period  of  delivery.  If  that  con- 
struction be  correct,  the  second  objection  made  by  Mr.  Raymond  is 
answered,  viz.,  that  the  contract  itself  passed  the  property  in  the  goods 
and  vested  the  right  to  possession  in  the  defendant,  for  that  could  not 
be  if  by  the  contract  the  goods  were  to  be  paid  for  on  delivery,  as  the 
property  could  not  pass  unless  payment  were  made.  But  it  is  further 
said  that  this  action  is  not  maintainable,  inasmuch  as  there  has  been  a 
complete  delivery.  Now,  the  facts  are  these  :  the  plaintifl"  sells  to  the 
defendant  a  certain  quantity  of  oil  not  ascertained ;  he  has  at  the  time 
oil  lying  at  the  wharfinger's,  and  on  the  day  following  the  contract  he 
sends  an  order  to  the  wharfinger  to  transfer  certain  of  that  oil  to  the 
defendant.  The  wharfinger  accordingly  makes  the  transfer  in  his 
books  to  the  defendant,  and  gives  the  plaintiff's  clerk  a  paper  acknowl- 
edging the  transfer;  the  clerk  goes  with  this  paper  to  the  defendant's 
counting-house,  and  demands  a  check  in  payment,  —  this  is  refused, 
but  the  defendant  retains  possession  of  the  paper,  and  the  jury  find 
that  the  plaintiff's  clerk  did  not  intend  to  part  with  the  paper  without 
receiving  a  check.  There  was,  therefore,  no  intention  to  pass  the 
property  in  the  paper  or  the  goods  without  payment ;  and  the  question 


974  GODTS   V.   EOSE.  [CHAP.  II. 

is,  whether  what  was  done  amounted  to  a  delivery.    No  doubt,  if  the 
vendor  had  given  the  vendee  the  transfer  order,  and  the  vendee  had 
taken  it  to  the  wharfinoer,  and  the  latter  had  assented  to  the  transfer, 
that  would  have  bound  the  vendor.     There  must  be  shown  to  have 
been  that  kind  of  triangular  contract  adverted  to  in  Williams  v.  Ever- 
ett,^ where  the  agent  of  the  one  party  becomes  by  agreement  between 
all  three  the  agent  of  the  other.     In  this  case  there  has  been  no  such 
agreement  of  attornment :  the  wharfinger  made  no  bargain  with  the 
vendee  to  hold  for  him,  nor  did  the  vendee  make  any  bargain  to  accept 
the  wharfinger  as  his  agent.     The  transfer  order  was  given  to  the  ven- 
dee only  on  a  condition  with  which  he  refused  to  comply,  and  there 
could  be,  therefore,  no  such  acquiescence  as  was  necessary  to  change 
the  property  in  the  goods  in  the  hands  of  the  wharfinger.     It  did  not 
occur  to  me  at  the  trial  that  there  was  the  distinction  which  has  been 
pointed  out  by  the  learned  counsel  for  the  plaintilF  between  this  and 
the  cases  where  the  transfer  order  has  been  carried  by  the  vendee  to 
the  wharfinger ;  but  I  am  now  of  opinion  that  the  nonsuit  was  wrong, 
and  that  the  plaintiff"  is  entitled  to  the  verdict. 

Williams,  J.     I  am  of  the  same  opinion.     It  is  not  necessary  for 
the  decision  of  this  case  to  put  a  construction  upon  the  sale  note  ; 
the  only  question  is,  whether  there  was  such  a  delivery  as  passed  the 
property  in  the  goods.     The  sale  was  not  of  any  specific  oil,  but  the 
plaintiflTwas  at  liberty  to  deliver  any  oil  answering  the  description  of 
that  contracted  for,  and  he  accordingly  sent  an  order  to  the  wharfinger 
to  transfer  certain  oil  at  his  wharf  belonging  to  the  plaintiflf  to  the 
defendant.     No  doubt  if  that  order  had  been  handed  to  the  defendant, 
and  he  had  taken  it  to  the  wharfinger,  and  it  had  been  agreed  between 
them  that  the  latter  should  hold  the  oil  for  the  defendant  as  his  agent, 
there  would  have  been  a  complete  transfer  and  delivery.     All  the 
cases  of  attornment,  as  has  been  pointed  out  by  the  lord  chief  justice, 
amount  to  an  arrangement  between  the  three  parties,  by  which  the 
agent  of  the  vendor  ceases  to  hold  for  him,  and  consents  to  hold  for 
the  vendee.     There  is  no  pretence  for  saying  that  there  was  any  such 
arrangement  here,  for  the  plaintiff"'s  clerk  refused   to  part  with  the 
notice  of  transfer,  except  on  the  condition  of  having  a  check,  and  the 
notice  was  in  fact  detained  from  him  by  what  amounted  to  force.    The 
case  is  the  same  as  if  the  plaintiflf,  before  any  transfer  by  the  wharf- 
inger, had  changed  his  mind,  and  told  the  wharfinger  not  to  deliver. 

Crowder,  J.  I  also  think  that  this  rule  should  be  made  absolute. 
It  is  not  necessary  to  put  any  construction  upon  the  bought  and  sold 
notes,  for  upon  the  evidence  given  by  a  witness  on  his  cross-examina- 
tion by  the  defendant's  counsel,  the  contract  was  understood  to  be  that 
the  delivery  and  payment  were  to  be  concurrent  acts  within  the  four- 

1  14  East,  582. 


SECT.  VI.]  GODTS   V.    ROSE.  975 

teen  days.  Then  the  question  is,  was  there  any  delivery  to  the  de- 
fendant ?  The  plaintiff  contends  tliat  there  was  no  intention  to  deliver 
except  on  payment,  and  that  under  those  circumstances  the  order 
was  given  to  the  Avharfinger  to  transfer.  That  order  in  itself  did  not 
absolutely  bind  the  goods,  nor  ojieratc  as  a  delivery.  Then  did  the 
wharfinger's  transfer  in  his  books  operate  as  a  delivery  ?  Until  that 
transfer  was  acce])ted  by  the  vendee  there  is  no  authority  for  saying 
that  it  did.  But  the  vendee  could  only  accept  the  transfer  on  condi- 
tion of  giving  the  vendor  a  check ;  he  refused  to  do  that,  and  there 
was,  therefore,  no  binding  acceptance  by  him  of  the  vendor's  offer  so 
as  to  complete  the  delivery. 

WiLLES,  J.  I  am  of  the  same  opinion,  whatever  construction  may 
be  put  upon  the  contract,  as  I  do  not  rely  upon  the  construction  of 
the  contract  nor  upon  the  color  given  to  it  by  the  evidence  at  the  trial. 
If  it  were  necessary  to  put  a  construction  upon  it,  I  should  think  that 
the  seller  was  entitled  to  payment  upon  delivery ;  and  I  do  not  say 
whether  the  evidence  was  or  was  not  admissible  to  explain  it.  INFy 
opinion  proceeds  upon  the  ground  that  the  property  which  the  seller 
had  in  these  goods  at  the  time  of  the  contract  was  never  divested. 
This  was  not  a  contract  for  the  sale  of  specific  oil,  but  of  any  oil  answer- 
ing a  certain  description  ;  possibly  evidence  might  have  been  given  to 
render  it  a  sale  of  specific  oil,  by  showing  that  the  parties  were  speak- 
ing of  some  particular  oil.  But,  however  that  may  be,  when  the  con- 
tract is  for  goods  "not  ascertained,  the  parties  have  first  to  agree  upon 
what  goods  are  to  be  delivered,  and  the  seller  may  send  and  the  buyer 
accept  any  answering  the  description  contracted  for.  Here  the  seller 
selected  eleven  pipes  lying  at  the  wharfinger's,  and  sent  his  clerk  to 
the  wharfinger  to  direct  the  latter  to  hold  them  for  the  buyer.  The 
wharfinger  assented  to  that  arrangement ;  but  as  yet  there  had  been 
no  assent  on  the  part  of  the  buyer.  The  clerk  then  went  to  the  buyer, 
and  told  him  that  he  might  have  that  oil  provided  he  gave  a  check  in 
payment.  In  one  sense,  the  buyer  assented  to  the  arrangement ;  but 
as  he  refused  to  give  the  check,  he  did  not  assent  in  the  sense  of  making 
a  contract,  and  there  was  no  complete  bargain  ad  idem  for  the  transfer 
of  this  particular  oil ;  and  the  property,  therefore,  never  passed  to  the 
buyer.  The  law  on  this  subject  is  to  be  found  in  the  judgment  of 
Parke,  J.,  in  Dixon  v.  Yates,^  that  in  the  case  of  a  sale  of  unascer- 
tained goods,  until  both  parties  have  assented  to  the  appropriation  of 
some  particular  goods  to  satisfy  the  contract,  the  property  in  them  does 
not  pass.  Here  there  was  no  such  assent  to  the  appropriation  of  this 
particular  oil ;  and  therefore  no  property  in  it  ever  passed  to  the  de- 
fendant. Hide  absolute. 

1  6  B.  &  Ad.  313 ;  s.  c.  2  Law  J.  Eep.  (N.  S.)  K.  B.  198. 


/ 

[chap.  II. 


/ 

AND  Another. 


/«» 


J 


^BROWNE  and^^Ano'Wer 

In  the  Exchequer,  June  12,  1858. 

[Reported  in  3  Hurlstone  ^  Norman,  484.] 

In  the  Exchequer  Chamber,  June  23, 1859. 

[Reported  in  4  Hurlstone  Sj-  Norman,  822.] 

^  Declaration.  Tliat  defendants  agreed  with  the  plaintiffs  to  buy  of 
them  a  certain  quantity,  to  wit,  ten  tons,  of  the  best  refined  rape  oil,  to 
be  shipped  free  on  board  at  Rotterdam  in  September,  1857,  at  £48  15s. 
per  ton ;  to  be  paid  for,  on  delivery  to  the  defendants  of  the  bills  of  lad- 
ing, by  bill  of  exchange  to  be  accepted  by  the  defendants  payable  three 
months  after  date,  and  to  be  dated  on  the  day  of  shipment  of  the  said 
oil.  And  although  Avithin  the  month  of  September,  1857,  the  plain- 
tiffs shipped  at  Rotterdam  a  certain  portion,  to  wit,  five  tons,  of  the 
best  refined  rape  oil  free  on  board  a  certain  shij)  called  the  Sophie,  and 
the  residue  thereof  free  on  board  a  certain  other  ship,  and  delivered  to 
the  defendants  the  respective  bills  of  lading  of  the  said  oil  duly  indorsed 
to  the  defendants ;  and  although  the  plaintiffs  performed  all  conditions 
precedent,  and  all  things  had  been  done  and  happened,  and  all  time 
had  elapsed,  to  entitle  the  jjlaintiffs  to  have  the  said  oil  paid  for  by  bill 
of  exchange  as  aforesaid,  and  to  maintain  this  action ;  yet  the  defend- 
ants made  default  in  paying  for  the  said  portion  of  the  said  oil  so 
shipped  on  board  the  said  ship  called  the  Sophie,  and  in  accepting  a 
bill  of  exchange  for  the  same.  There  was  also  a  count  for  goods  bar- 
gained and  sold,  and  goods  sold  and  delivered. 

Pleas  to  first  count.  First,  that  defendants  did  not  agree  with  plain- 
tiffs as  alleged.  Secondly,  that  the  plaintiffs  did  not  ship  the  said 
portion  of  the  oil  on  board  the  shijD  called  the  Sophie.  Thirdly,  that 
the  plaintiffs  did  not  deliver  to  the  defendants  the  bill  of  lading  of  the 
said  portion  of  oil  shipped  on  board  the  Sophie,  duly  indorsed  to  the 
defendants.  Fourthly,  that  the  plaintiffs  were  not  ready  and  willing 
to  deliver  the  said  portion  of  oil  shipped  on  board  the  Sophie,  or  the 
bill  of  lading  of  the  same  oil,  to  the  defendants,  in  accordance  with  the 
terras  of  the  said  agreement.  Fifthly,  that  the  said  agreement  was  for 
the  sale  often  tons  of  oil  generally,  and  not  of  any  specific  or  ascertained 
oil.  That  the  said  ship  called  the  Sophie  was  a  general  ship,  and  was  not 
^  a  ship  chartered  by  the  defendants  or  in  any  way  appointed  or  denoted 
by  them.  That  the  plaintifis,  when  they  shipped  the  said  portion  of  oil 
on  board  the  Sophie,  took  from  the  master  of  that  vessel  a  bill  of  lading 
of  the  said  oil,  making  it  deliverable  to  the  order  of  the  plaintiffe^or 


^ 


'/vc  /-yt 


JW-l^>^^     ^^   /)^M^^^-^^^^^ 


^ 


^^.jV?^^  i^^^^^  ^r^/^<^  ^2. 


r^ 


SECT.  VI.]  BROWNE   V.    HARE.  977 

their  assigns,  and  not  otherwise.  That  before  any  delivery  of  the  sai<l 
oil  to  the  defendants,  and  before  any  indorsement  or  delivery  of  the 
said  bill  of  lading,  or  of  any  bill  of  lading  of  the  said  oil,  to  the  defend- 
ants, the  said  ship  called  the  Sophie,  with  the  said  oil  on  board,  was 
totally  lost,  and  the  said  oil  then  became  and  was  without  any  neglect 
or  default  of  the  defendants  wholly  lost  and  destroyed.  Tliat  the  plain- 
tiffs never,  in  fact,  delivered  or  offered  to  deliver,  nor  have  they  been 
ready  and  willing  to  deliver,  the  said  oil  to  the  defendants ;  nor  have 
the  plaintiffs  ever  delivered  or  offered  to  deliver,  or  been  ready  and 
willing  to  deliver,  the  said  bill  of  lading  or  any  bill  of  lading  of  the 
said  oil  to  the  defendants  until  after  the  said  oil  had  been  so  wholly  lost 
and  destroyed  as  aforesaid.  That  when  the  plaintiffs  delivered  to  the 
defendants  the  said  bill  of  lading  of  the  said  oil  as  in  the  first  count 
mentioned,  the  plaintiffs  knew,  and  the  defendants  did  not  know,  that 
the  said  ship  and  the  said  oil  had  been  so  lost  and  destroyed  as  afore- 
said. That  the  defendants  have  not  derived  any  benefit  or  advantage 
whatever  or  any  possibility  of  benefit  or  advantage  under  the  said 
agreement,  or  received  any  consideration  or  value  whatever  for  the  lia- 
bility sought  to  be  imposed  on  them  in  this  action  by  the  plaintiffs.  To 
second  count,  never  indebted.     Issues  thereon. 

At  the  trial  before  Martin,  B.,  at  the  London  sittings  aflcr  Hilary  term, 
the  following  facts  appeared.  The  plaintiffs  were  merchants  at  Rot- 
terdam, and  the  defendants  merchants  at  Bristol.  On  the  9th  of  April, 
1857,  the  defendants  wrote  the  following  letter  to  one  Goolden,  a  broker 
at  Bristol,  who  had  before  negotiated  purchases  between  the  plaintiffs 
and  the  defendants :  — 

Messrs.  Browne  &Co.  may  send  us  20  tons  of  best  refined  rape  oil  in  Septem- 
ber or  October  next,  at  or  under  47s.  free  on  board. 

Goolden  accordingly  communicated  with  the  plaintiffs,  and  the  de- 
fendants afterwards  wrote  to  them  that  they  might  go  as  high  as  485. 
On  the  14th  the  defendants  wrote  to  the  plaintiffs  about  the  purchase 
of  some  black  lead,  and  stated  that  they  had  rather  that  the  plaintiffs 
would  communicate  Avnth  them,  but  that  all  their  transactions  in  oil 
might  go  on  through  Goolden.  After  some  further  correspondence 
between  the  parties,  a  contract  was  made,  through  Goolden,  for  the 
sale  by  the  plaintiffs  to  the  defendants  of  twenty  tons  of  the  best  refined 
rape  oil,  ten  tons  "  to  be  shipped  free  on  board  at  Rotterdam  in  Sep- 
tember, 1857,  at  £48  15s.  per  ton,  to  be  paid  for,  on  delivery  to  the 
defendants  of  the  bills  of  lading,  by  bill  of  exchange  to  be  accepted 
by  the  defendants,  payable  three  months  after  date,  and  to  be  dated  on 
the  day  of  shipment  of  the  oil;"  the  ten  other  tons  were  to  be  shipped 
in  October  on  the  same  terms.  On  the  3d  September  the  defend- 
ants requested  the  plaintiffs  to  send  ])art  of  the  oil  by  the  first  vessel 
fi'om  Rotterdam,  which  was  the  Sophie.     On  the  7th  September  the 


978  BROWNE   V.    HARE.  [CHAP.  11. 

plaintiiFs  wrote  to  Goolden,  who  informed  the  defendants  on  the  9th, 
that  five  tons  of  the  oil  would  be  shipped  on  the  following  day. 
On  the  8tli  September,  the  plaintiffs  shipped  on  board  the  Sophie,  which 
was  a  general  vessel  trading  from  Rotterdam  to  Bristol,  five  tons  of  the 
oil,  and  the  master  signed  a  bill  of  lading,  making  the  oil  deliverable 
"  unto  shippers'  order  or  their  assigns,  he  or  they  paying  freight,"  &c. 

On  the  same  day  the  plaintiffs,  having  indorsed  the  bill  of  lading 
specially  to  the  defendants,  and  made  out  an  invoice,  stating  the  oil  to 
have  been  shipped  by  order  of  Goolden  for  account  of  the  defendants, 
enclosed  in  a  letter  to  Goolden  the  bill  of  lading,  invoice,  and  a  bill  of 
exchange  drawn  on  the  defendants  in  accordance  with  the  contract. 
On  the  night  of  the  9th  the  Sophie  was  run  down  in  the  Bristol  Channel, 
and  the  oil  totally  lost.  The  plaintiffs'  letter  of  the  8th  arrived  at  Bristol 
on  the  afternoon  of  the  10th,  in  due  course  of  post,  but  after  business 
hours.  On  the  morning  of  the  11th,  Goolden  left  with  the  defendants 
the  bill  of  lading,  invoice,  and  bill  of  exchange  for  their  acceptance.  At 
that  time  he  knew  of  the  loss  of  the  Sophie.  In  about  two  hours  the 
defendants  returned  to  Goolden  the  documents  which  he  left  with  them, 
on  the  ground  that  under  the  circumstances,  they  were  not  liable  to 
pay  for  the  oil.  The  other  five  tons  arrived  on  the  28th  September, 
and  were  accepted  and  paid  for  by  the  defendants.^ 

The  learned  judge  was  of  opinion  that  under  these  circumstances 
the  plaintiffs  were  entitled  to  recover;  and  the  jury  found  a  verdict  for 
them,  stating  that  in  their  opinion,  according  to  mercantile  usage,  the 
risk  of  the  loss  of  the  oil  was  on  the  defendants.  Leave  was  then  re- 
served to  the  defendants  to  move  to  enter  the  verdict  for  them. 

Hugh  Hill^  in  last  Easter  term,  obtained  a  rule  nisi  accordingly, 
against  which 

Butt  and  PHdeaux  showed  cause  in  the  same  term  (May  6,  8).  The 
plaintiffs  are  entitled  to  recover  both  on  the  special  contract  and  on  the 
count  for  goods  sold  and  delivered.  The  delivery  was  completed  on 
the  shipment  of  the  oil  and  special  indorsement  of  the  bill  of  lading 
to  the  defendants.  Where  goods  are  sold  to  be  delivered  "free  on 
board,"  it  is  part  of  the  seller's  duty  to  ship  them,  but  the  buyer,  at 
whose  risk  they  are  from  the  time  of  shipment,  is  considered  to  be  the 
shipper.  Cowas-Jee  v.  Thompson.^  Goolden  was  the  agent  of  both 
parties  for  the  purpose  of  receiving  and  transmitting  the  documents. 
The  plaintiffs,  by  letter  of  the  7th  September,  informed  the  defend- 
ants that  the  shipment  would  be  made ;  and  if  the  defendants  intended 
to  repudiate  the  cargo,  on  the  ground  that  it  was  not  delivered  "  free 
on  board,"  they  should  have  so  stated  in  answer  to  the  plaintiffs 
letter,  and  not  have  waited  until  the  bill  of  exchange  was  presented  to 
them.     Richardson  v.  Dunn,**  Alexander  w.  Gardner.*     Under  the  cir- 

1  The  statement  of  the  case  has  been  slightly  abbreviated.  —  Ed. 

2  5  Moore,  P.  C.  165.  3  2  Q.  B.  218.  *  i  Bing.  N.  C.  671. 


SECT.  VI.]  BROWNE   V.    HARE.  979 

cunistances,  the  iDvoperty  in  the  oil  vested  absolutely  in  the  defendants. 
The  plaintifls  never  intended  to  preserve  their  right  to  it  until  the  bill 
of  exchange  was  accepted ;  for  if  so,  they  would  have  transmitted  to 
their  agent  the  bill  of  lading  indorsed  in  blank,  to  be  delivered  over 
only  in  case  the  acceptance  took  place.    Key  v.  Cotesworth.^    This  case 
is  distinguishable  from  Wait  v.  Baker,'^  for  there  the  vendor,  to  whose 
order  the  cargo  was  deliverable,  never  indorsed  the  bill  of  lading,  and 
there  was  nothing  which  amounted  to  an  appropriation,  so  as  to  pass 
the  property  to  the  vendees.     Here  there  Avas  a  special  indorsement 
to  the  defendants,  with  the  intention  to  vest  the  property  in  them.    In 
the  case  of  a  blank  indorsement,  there  must  be  a  delivery  to  the  ])arty 
as  indorsee,  in  order  to  constitute  an  indorsement  to  him :  Adams  v. 
Jones ;  ^  but  a  special  indorsement  operates  to  pass  the  property  to  the 
indorsee.     It  is  not  necessary,  however,  to  rest  the  case  on  the  bill  of 
lading,  for  that  is  a  mere  element  by  which  to  ascertain  the  intention 
of  the  parties.     The  delivery  on  board  the  ship,  for  the  defendants,  of 
goods  corresponding  with  the   order,  vested  the  property  in    them. 
Richardson  v.  Dunn.*     In  Mitchel  v.  Ede,^  the  goods  were  deUvered  on 
board  a  ship  Avhich,  though  it  in  tact  belonged  to  the  defendant,  ditFered 
in  no  respect  from  a  general  ship  ;  the  owner  of  the  goods  indorsed  the 
bill  of  lading  to  the  defendant  subject  to  a  condition,  and  there  was 
nothing  to  show  an  intention  to  consign  the  specific  property  to  him. 
Here  the  plaintiifs  clearly  intended  the  oil  for  the  defendants.     Ogle  v. 
Atkinson  '^  shows  that  an  unqualified  delivery  will  vest  the  property  in 
the  consignee,  irrespective  of  the  bill  of  lading. 

Jliiffh  Hill  and  Raymond^  in  support  of  the  rule.  The  only  differ- 
ence between  a  special  and  a  blank  indorsement  is  that  in  the  former 
case  the  person  is  indicated  to  whom  the  goods  are  to  be  dehvered :  in 
neither  case  is  the  property  transferred  until  delivery  of  the  bill  of 
lading.  Where  A.  specially  indorsed  certain  bills  to  B.,  sealed  them 
up  in  a  parcel,  and  left  them  in  charge  with  his  own  servant  to  be  given 
up  to  the  postman,  it  was  held  that  the  special  indorsement  did  not 
transfer  the  property  in  the  bills  till  delivery,  and  that  delivery  to  the 
servant  was  not  sufficient ;  though  it  would  have  been  otherwise  had 
the  delivery  been  made  to  the  postman.  Byles  on  Bills,  p.  Iii9,  7th  ed. 
The  delivery  on  board  the  ship  did  not  transfer  the  property  to  the 
defendants,  for  by  the  bill  of  lading  the  plaintiffs  reserved  to  them- 
selves a  control  over  the  goods.  Turner  v.  The  Trustees  of  the  Liver- 
pool Docks.^  There  Pattesou,  J.,  in  delivering  the  judgment  of  the 
court,  explains  the  decision  in  Ogle  v.  Atkinson."  Here  the  subject- 
matter  of  the  contract  was  unascertained  goods  of  a  particular  kmd, 

1  7  Exch.  595.  2  2  Exch.  1.  s  12  A.  &  E.  455,  459. 

*  2  Q.  B.  218.  5  11  A.  &  E.  888.  ^  o  Taunt.  759. 

1  6  Exch.  543.  8  5  Taunt.  759. 


980  BROWNE   V.    HARE.  [CHAP.  II. 

viz.,  ten  tons  of  the  best  refined  rape  oil,  and  the  plaintiffs  were  at 
liberty  to  deliver  any  ten  tons  of  oil  which  answered  that  descrijjtion. 
But  they  could  only  fulfil  their  contract,  so  as  to  entitle  them  to  the 
defendants'  acceptance  of  the  bills  of  exchange,  by  delivering  the  oil 
"  free  on  board."  Instead  of  doing  so,  they  get  the  master  to  sign 
bills  of  lading  making  the  oil  deliverable  to  their  order.  Shipment 
simjylicite?'  is  a  neutral  act,  and  may  be  for  the  benefit  of  the  vendors 
or  the  vendees,  but  the  vendors  having  chosen  to  place  the  master  un- 
der a  binding  contract  to  carry  for  them,  how  can  it  be  said  that  it  Avas 
a  contract  to  carry  for  the  vendees?  The  documents  must  be  looked 
at  as  the  indicia  of  title.  The  delivery  of  the  oil  and  acceptance  of  the 
bill  of  exchange  were  to  be  contemporaneous  acts,  and  if  the  defend- 
ants had  refused  to  accept  the  bill  after  obtaining  possession  of  the  oil, 
the  plaintiflTs  might  have  maintained  trover  for  it.  Godts  v.  Rose.^  If 
the  plaintiflTs  had  delivered  the  bill  of  lading  to  Goolden  for  the  purpose 
of  transferring  the  property  to  the  defendants,  and  had  afterwards  re- 
voked his  authority,  in  an  action  by  the  defendants  for  the  refusal  to 
deliver  they  could  not  have  said,  "  You  took  the  bill  of  lading  in  your 
own  name,  but  you  intended  it  for  us."  In  Cowas-Jee  v.  Thompson,^ 
the  bill  of  lading  made  the  goods  deliverable  to  the  consignee,  and  the 
delivery  was  complete  when  the  goods  were  shipped  on  board  the 
vessel.  But  where  goods  are  deliverable  to  the  shipper's  order,  though 
he  specially  indorses  the  bill  of  lading  he  may  at  any  time  before  it  is 
delivered  to  the  vendee  alter  the  destination  of  the  goods.  The  fact 
of  making  this  bill  of  lading  deliverable  to  the  shipper's  order  is 
conclusive  to  show  his  intention  to  preserve  his  right  of  property  in  the 
goods.  Wait  v.  Baker,^  Van  Casteel  v.  Booker,*  Ellershaw  v.  Magniac.^ 
In  Richardson  v.  Dunn  ^  there  was  no  shipment  under  a  bill  of  lading. 
In  Alexander  v.  Gardner''  the  principal  objection  was  that  the  property 
in  the  goods  did  not  pa^s  to  the  vendee  because  they  were  not  in  the 
possession  of  the  vendors  at  the  time  of  the  contract.  In  Key  u.  Cotes- 
worth  ^  the  bill  of  lading  made  the  goods  deliverable  to  the  vendees. 
Here  the  contract  would  remain  incomplete  until  the  delivery  of  the 
bill  of  lading  to  the  defendants ;  and  when  it  was  tendered  to  them  it 
was  mere  waste  paper,  for  at  that  time  the  goods  were  lost. 

Cur.  adv.  vult. 

The  learned  judges  having  differed  in  opinion,  the  following  judg- 
ments were  delivered. 

Beamwell,  B.  I  am  of  opinion  that  this  rule  should  be  made  ab- 
solute.    I  will  first  consider  the  actual  case  independent  of  the  plead- 

1  17  C.  B.  229.  -  5  Moore,  P.  C.  165. 

3  2  Exch.  1.  <  2  Exch.  691.  ^  g  Exch.  570,  n. 

6  2  Q.  B.  218.  "f  1  Bing.  N.  C.  671.  8  7  Exch.  595. 


SECT.  VI.]  BROWNE    V.    HARE,  981 

ings.  The  plaintiffs  agreed  to  sell  to  the  defendants,  and  the  defendants 
agreed  to  buy  of  the  plaintiffs,  a  quantity  of  oil,  the  particular  parcel 
not  being  ascertained.  In  addition  to  selling,  the  plaintiffs  ■were  to  ship 
the  oil  free  on  board  a  vessel  to  take  it  fi-om  the  plaintiffs  to  the  defend- 
ants. The  defendants  were  to  pay  on  delivery  of  the  bills  of  lading,  by 
bills  to  be  dated  on  the  day  of  shipment  of  the  oil.  Oil  was  shijtped 
by  the  plaintiffs  to  the  extent  of  about  twenty  tons.  Various  bills  of 
lading  in  sets  were  signed :  they  were  taken  deliverable  to  the  plain- 
tiffs' order.  One  of  a  set,  for  about  five  tons,  was  indorsed  by  them 
specially  to  the  defendants  ({.  e.  such  an  indorsement  was  written  on 
it)  and  tendered  to  the  defendants,  but  before  the  tender  the  ship  and 
oil  were  lo^  and  destroyed.  The  plaintiffs,  however,  on  the  7th  Sep- 
tember, wrote  to  Goolden  to  inform  the  defendants,  which  he  did  before 
the  loss  of  the  Sophie,  that  she  w'oiild  bring  five  tons  of  refined  rape  oil 
for  the  defendants ;  but  they  did  not  identify  or  appropriate  any  partic- 
ular oil,  nor  even  intimate  that  it  had  been  shipped,  —  })robably  it  had 
not  been,  as  the  bill  of  exchange  is  dated  the  8th.  This  contract  is 
essentially  a  contract  for  the  supply  of  unascertained  chattels,  and  I 
think  it  is  clear  law  that,  under  such  a  contract,  the  seller  can  have  no 
right  of  action  till  the  seller  has  done  an  act  which,  by  the  agreement 
between  him  and  the  buyer,  is  to  vest  the  property  in  the  buyer :  as, 
by  delivery  to  him,  or  to  a  carrier  for  him,  of  goods  corrcsjionding  with 
the  writing,  or  till  the  seller  has  appropriated  or  offered  to  appropriate 
and  supply  to  the  buyer  certain  chattels  which  correspond  with  the 
contract.  See  Blackburn  on  Contract  of  Sale,  pt.  2,  c.  1.  Have  either 
of  these  things  taken  place  here  ?  I  think  not.  An  appropriation  in 
the  seller's  own  mind,  a  mere  intent  to  api)ropriate,  —  a  matter  which 
the  seller  can  suppress  or  undo  at  pleasure,  —  will  not  suflice.  If  he 
offers  to  appropriate  particular  articles,  and  the  buyer  without  cause 
refuses  them,  a  right  of  action  for  not  accepting  vests ;  but  unless  there 
is  an  appropriation  offered,  and  accepted  or  refused,  there  is  no  cause 
of  action.  I  do  not  understand  there  is  any  doubt  on  the  law :  then  it 
remains  to  examine  the  facts.  I  think  it  immaterial,  but  the  Sophie 
was  selected  by  the  plaintiffs,  not  by  the  defendants.  If  she  had  been 
the  defendants'  ship,  and  the  oil  had  been  put  on  board  it,  as  it  might 
have  been  delivered  to  a  wagon,  that  would  have  been  a  delivery  to 
the  defendants,  assuming  the  oil  corresponded  with  the  contract.  So 
the  Sophie  being  as  it  were  a  earner's  ship,  the  oil  might  have  been  put 
on  board,  as  a  parcel  to  be  carried  by  land  may  be  given  to  a  common 
carrier,  so  as  to  vest  the  property  in  the  consignee  and  be  a  delivery  or 
not,  according  to  the  right  of  lien.  So  if,  after  the  shipment,  bills  of 
lading  had  been  taken  in  the  defendants'  name,  or  if  taken  in  the  plain- 
tiffs' name  they  had  been  indorsed  and  delivered  to  the  defendants 
while  the  goods  were  in  existence,  I  think  that  would  have  been  a 
compliance  with  the  contract ;  because,  even  assuming  the  property  is 
VOL.  I.  63 


982  BROWNE   V.   HARE.  [CHAP.  II. 

to  be  in  the  buyer  from  the  time  of  shipment,  and  that  the  seller  is  the 
buyer's  agent  to  ship,  still  I  think  he  may  exercise  that  agency  in  his 
own  name,  and  that  it  is  no  more  necessary  he  should  take  the  bill  of 
lading  in  the  buyer's  name  than  it  is  that  he  should  say  at  the  moment 
of  shipment,  "These  are  the  buyer's  goods,  I  ship  on  his  account."  In 
such  a  case  his  tender  of  the  bill  of  lading,  properly  indorsed  to  the 
buyer,  may  well  be  taken  to  show  he  was  acting  as  the  buyer's  agent 
in  the  shipment,  and  consequently  that  he,  in  effect,  shipped  the  goods 
for  him.  But  if  the  seller  had  the  right,  as  long  as  the  goods  were  in 
existence,  to  say  that  he  had  done  nothing  to  vest  the  property  in  the 
buyer,  that  he  never  offered  to  appropriate  them,  surely  it  was  too  late 
for  him  to  do  so  after  the  goods  were  lost.  Then  had  he  done  any 
thing  to  vest  the  property,  had  he  delivered,  had  he  offered  to  appro- 
priate this  oil  while  it  was  in  existence  ?  If  so,  when  ?  At  the  moment 
of  shipment?  Clearly  not.  How  could  it  be?  The  ship  was  not  the 
defendants';  the  oil  was  put  on  board  with  no  notice  that  it  was  for  the 
defendants ;  other  oil  was  put  with  it ;  and  it  was  in  the  power  of 
the  plaintiffs  to  appropriate  to  the  defendants  such  part,  or  no  part, 
of  the  whole,  as  they  pleased.  The  cases  referred  to  below  clearly  show 
there  was  no  delivery.  Was  it,  then,  when  the  plaintiffs  took  tbe  bill 
of  lading  ?  Clearly  not.  When  they  indorsed  it  ?  I  say,  as  clearly 
not,  for  there  was  nothing  to  prevent  their  erasing  that  indorsement, 
or  destroying  or  suppressing  that  bill  of  lading,  and  indorsing  another. 
Then  was  the  property  so  vested  or  appropriated  by  the  bill  of  lading 
so  indorsed  being  sent  to  Goolden  ?  That  depends  on  whether  Gool- 
den  was  in  any  way  the  agent  of  the  defendants,  and  otherwise  the 
case  is  as  though  the  sellers  had  themselves  brought  the  bill  of  lading 
to  Bristol :  they  retained  their  power  over  it  as  long  as  their  agent  held 
it.  Then  I  am  of  opinion  Goolden  was  in  no  way  defendants'  agent. 
It  is  said  the  sellers  intended  this  oil  for  the  defendants.  I  doubt  it 
not;  but  intention  is  immaterial  till  it  manifests  itself  in  an  act.  If 
a  man  intends  to  buy,  and  says  so  to  the  intended  seller,  and  he 
intends  to  sell,  and  says  so  to  the  intended  buyer,  there  is  a  contract  of 
sale ;  and  so  there  would  be  if  neither  had  the  intention.  If  there  is  a 
contract  of  sale,  and  the  seller  intends  to  appropriate  a  particular  chat- 
tel in  fulfilment  of  it,  and  the  buyer  intends  to  accept,  and  accepts,  the 
property  vests  in  him ;  and  so  it  would  had  there  been  no  such  inten- 
tion. If  the  buyer  refuses,  and  the  chattel  corresponds  with  the  con- 
tract, the  vendor  has  a  right  of  action,  not  because  of  his  intention,  but 
of  his  offer.  An  intention  not  communicated  to  the  buyer  is  imma- 
terial. Telling  it  to  an  indifferent  person  is  no  more  than  though  he 
had  noted  it  in  his  memorandum  book,  which  is  no  more  than  though 
it  existed  solely  in  his  own  mind. 

If  the  case  is  tried  by  the  pleadings,  I  come  to  the  same  conclusion. 
Either  the  shipment  was  to  be  for  the  defendants  at  the  time  of  ship- 


SECT.  VI.]  BROWNE   V.   HARE.  983 

ment,  or  it  M'as  to  be  appropriated  to  them  afterwards.  In  the  former 
case  the  declaration  must  be  taken  to  allege  such  a  shipment,  and  the 
second  plea  is  an  answer.  On  the  latter  view,  the  delivery  of  the  bill 
of  lading  must  be  taken  to  be  a  delivery  while  the  oil  was  capable  of 
appropriation,  and  then  the  fourth  pica  meets  the  case.  Anyliow  the 
fifth  j)lea  is  proved,  for  the  allegation  that  the  plaintiffs  knew  the  oil 
was  los*t,  and  the  defendants  did  not,  is  immaterial,  —  of  course  if  that 
plea  is  bad,  it  is  not  proved,  as  those  allegations  are  not. 

This  opinion  is  warranted  by  the  authorities.  If  no  property  vested 
in  the  defendants  while  the  goods  were  in  esse,  it  remained  in  the 
plaintiffs,  and  they  must  bear  the  loss.  The  following  authorities 
show  that  no  property  did  vest:  Turner  v.  The  Liverpool  Docks  ;^ 
Ellershaw  v.  Magniac,-  where  there  is  the  expression  in  the  judgment, 
"  Though  the  goods  might  have  been  purchased  with  the  intention  they 
should  be  delivered  to  Ellershaw,  that  intention  was  never  executed ; " 
Mitchel  V.  Ede ;  ^  Van  Casteel  v.  Booker.*  No  doubt  in  some  of  those 
cases  the  word  "  intention  "  is  used,  but  it  means  "  intention  indicated." 
In  the  judgment  in  Turner  v.  The  Liverpool  Docks  it  is  said :  "  The 
question  really  is  whether  any  and  what  effect  is  to  be  given  to  the 
terms  of  the  bill  of  lading ;  for  if  by  those  terms  they  reserved  to 
themselves  the  dominion  over  the  cotton,  it  would  not  pass  to  the 
assignees."  And  in  this  case  it  was  well  argued  by  3Ir.  Raymond, 
that  had  the  position  of  the  parties  been  reversed  the  defendants  could 
not  successfully  have  said,  "  You  took  the  bill  of  lading  in  your  own 
name,  but  you  intended  it  for  us."  But  "Wait  v.  Baker  ^  seems  to  me  in 
point,  and  the  reasoning  of  Baron  Parke  decisive.  Nay,  it  is  stronger 
than  the  present  case,  for  there  it  is  manifest  Lethbridge  had  intended 
the  bai-ley  for  the  defendant,  and  had  told  him  so ;  but  having  done 
an  act  which  retained  the  property  in  himself,  and  there  being  no  un- 
qualified tender,  it  was  held  not  to  pass  to  the  vendees.  In  conclusion, 
I  say  there  was  no  delivery  of  the  goods,  because  the  only  thing  that 
could  be  called  a  delivery  was  the  shipment,  and  that  was  none ;  for  the 
same  reason  there  was  no  bargain  and  sale,  which  suj^poses  the  goods 
are  ascertained ;  and  there  was,  for  the  same  reason,  no  offer  to  supply 
by  delivery  on  board,  and  no  offer  subsequent. 

Pollock,  C.  B.  I  have  to  deliver  the  judgment  of  my  brother 
Martin,  my  brother  Channell,  and  myself®  .  .  . 

If,  at  the  time  the  oil  was  shipped  at  Rotterdam,  the  plaintiffs  had 
intended  to  continue  their  ownership,  and  had  taken  the  bill  of  lading 
in  the  terms  in  which  it  was  made  for  the  purpose  of  contmuing  the 
ownership  and  exercising  dominion  over  the  oil,  they  would  in  our 

1  6  Exch.  543.  2  6  Exch.  670,  n.  3  n  A.  &  E.  888. 

*  2  Exch.  691.  5  2  Exch.  1. 

6  Uis  lordship's  statement  of  the  case  is  omitted. —  Ed. 


984  BROWNE    V.    HARE.  [CHAP.  II. 

opinion  have  broken  their  contract  to  ship  the  oil  "free  on  board,"  and 
the  property  would  not  have  passed  to  the  defendants ;  but  if  when 
they  shipped  the  oil  they  intended  to  perform  their  contract  and  deliver 
it  "  free  on  board "  for  the  defendants,  we  think  they  did  perform  it, 
and  the  property  in  the  oil  passed  from  them  to  the  defendants.  If, 
when  the  bill  of  lading  was  made  out,  they  of  purpose  and  design  had 
the  oil  made  deliverable  to  "shipper's  order"  for  an  advanta*ge  and 
benefit  to  themselves,  it  would  be  a  different  case ;  but  if  they  had  no 
object  in  the  matter,  —  and  they  clearly  had  none,  for  upon  the  same 
day  they  indorsed  it  specially  to  the  defendants,  and  transmitted  it  to 
Bristol,  —  we  think  it  is  exactly  the  same  thing  as  if  the  bill  of  lading 
had  originally  been  made  out  deliverable  to  the  defendants. 

It  was  said  that  so  long  as  the  bill  of  lading  was  in  the  hands  of  the 
plaintiffs  or  of  their  agent  Mr.  Goolden,  they  had  the  control  over  the 
oil,  and  no  doubt  they  had  to  a  certain  extent,  but  they  would  have 
had  precisely  the  same  control  whether  the  bill  of  lading  was  made 
out  deliverable  to  the  defendants  or  to  the  plaintiffs'  order,  and  in- 
dorsed by  them  to  the  defendants.  It  is  clear  that  it  was  intended  by 
the  contract  that  the  plaintiffs  should  have  this  control,  for  the  delivery 
of  the  bill  of  lading  to  and  the  acceptance  by  the  defendants  of  the 
bill  of  exchange  were  to  be  contemporaneous  acts,  and  the  plaintiffs  or 
their  agent  were  not  bound  to  deliver  the  bill  of  lading  until  they 
received  the  acceptance. 

In  all  the  cases  cited  on  behalf  of  the  defendants  the  bills  of  lading 
were  designedly  and  of  purpose  made  out  to  shipper's  order  to  prevent 
the  property  passing,  and  enable  the  vendor  to  retain  the  possession 
and  control  of  the  goods.  This  distinguishes  them  from  the  present 
case.  As  to  the  contract  in  the  bill  of  lading  being  originally  made 
with  the  plaintiffs,  we  do  not  think  it  at  all  affects  the  tenns  as  to  the 
shipment  "free  on  board,"  and  especially  since  the  statute  18  &  19 
Vict.  c.  Ill,  which  transfers  the  contract  of  the  bill  of  lading  to  the 
indorsees. 

In  our  opinion,  therefore,  the  law  coincides  with  the  view  taken  by 
the  jviry,  and  the  plaintiffs  are  entitled  to  recover  upon  the  special 
count.  We  also  think  they  are  entitled  to  recover  upon  the  count  for 
goods  sold  and  delivered,  for  upon  the  delivery  on  board  the  general 
ship,  we  consider  the  property  vested  in  the  defendants,  and  that  there- 
fore this  count  is  maintainable. 

It  was  said  that  the  defendants  could  not  insui-e  the  oil.  This  is  not 
so  in  fact,  for  by  a  letter  of  the  7th,  which  was  communicated  to  them 
on  the  9th,  they  were  informed  that  the  shipment  would  take  place  on 
the  following  day ;  but  whether  they  had  the  opportunity  to  insure  or 
not  is  immaterial  to  the  present  question,  which  depends  upon  the  law 
as  to  contracts  and  the  transfer  of  property  to  a  vendee  upon  a  sale. 


I 


SECT.  VI,]  BROWNE   V.    HARE.  985 

The  court  having  accordingly  discharged  the  rule,  the  defendants 
appealed  to  the  Exchequer  Chamber. 

Raymond  argued  for  the  api)ellants  (the  defendants)  in  last  Easter 
vacation'  (May  17).      The  decision   of  the  Court   of  Exchequer  is 
erroneous.     In  order  to  entitle  the  plaintiffs  to  succeed,  they  must 
satisfy  the  court  that  the  oil  at  the  time  it  was  lost  was  the  pro]»erty 
of  the  defendants;  or  that  they  delivered  to  the  defendants  the  bills  of 
lading  duly  indorsed,  so  as  to  have  a  right  to  call  on  them  to  accept 
the  bill  of  exchange.     It  appears  by  the  case  that  Goolden  was  the 
general  agent  of  Browne  &  Co. ;  but  it  is  assumed  that  he  was  also 
the  agent  of  Hare  &  Co.  for  the  purpose  of  receiving  the  shii)ping 
documents.     First:  no  pi'operty  in  any  specific  oil  passed  by  tlie  con- 
tract, which  would  be  performed  by  the  delivery  of  any  oil  of  the 
particular  description  mentioned  in  it.     The  shipment  on  board  the 
Sophie  did  not  transfer  the  property.     The  Sophie  was  a  general  ship  ; 
and  if  there  had  been  simply  a  shipment  of  oil  corresponding  with  the 
contract,  that  might  have  been  a  delivery  to  the  vendees ;  but  w^hen 
the  vendors  shipped  the  oil,  they  took  from  the  master  bills  of  lading 
making  it  deliverable  "  unto  shippers'  order  or  their  assigns."     Wait 
V.  Baker  -  is  an  express  authority  that  under  such  circumstances  no 
property  passed.     [Crompton,  .1.     In  that  case  the  vendor  kept  his 
hand  upon  the  goods,  by  not  indorsing  the  bill  of  lading  to  the  ven- 
dee.]    Lord  Stowell,  in  his  judgment  in  the  case  of  The  Packet  de 
Bilboa,^  said :  "  The  ordinary  state  of  conmierce  is,  tlmt  goods  ordered 
and  delivered  to  the  master  are  considered  as  delivered  to  the  con- 
signee, whose  agent  the  master  is  in  this  respect;    but  that  general 
contract  of  the  law  may  be  varied  by  special  agreement,  or  by  a  par- 
ticular prevailing  practice,  which  presupposes  an  agreement  amongst 
such  a  descrii)tion  of  merchants."     There  is  no  use  in  a  bill  of  lading 
by  which  goods  are  deliverable  "  to  shipper's  order,"  except  as  showing 
that  he  reserves  to  himself  the  proi)erty.     [Cromptox,  J.     Is  there 
any  difference  between  a  shipper  taking  a  bill  of  lading  in  his  own 
name  and  indorsing  it  over  to  the  consignee,  and  jmtting  in  the  con- 
signee's name  at  fiirst  ?]     In  the  former  case  the  property  in  the  goods 
remains  in  the  shipper;  and  the  master  undertakes  to  carry  and  deliver 
for  him.     When  the  consignee's  name  is  on  the  bill  of  lading,  it  is  a 
contract  by  the  master  to  carry  for  and  deliver  to  him.     Here  the 
shippers  would   have  committed  no  breach  of  contract  if  they  had 
assigned  the  bill  of  lading  to  any  third  person.     The  vendees  had  no 
power  to  compel  a  delivery  of  these  specific  goods.     [Willes,  J.     The 
vendors  sent  the  bill  of  lading  to  Goolden,  the  common  agent  of  both 
parties.     The  jury  have  found  that  there  was  an  apju-opriation  in  fact 

1  Before  Erie,  J.,  Williams,  J.,  Crowder,  J.,  Crompton,  J.,  Willes,  J.,  and  Hill,  J. 

2  2  Exch.  1.  ^  '2  Hoi).  Adm.  133,  134* 


986  BROWNE    V.    HARE.  [CHAP.  II. 

because  they  have  found  that  according  to  mercantile  usage,  the  risk 
of  the  loss  of  the  oil  was  on  the  vendees.]     It  is  submitted  that  Gool- 
den  was  not  the  agent  of  Hare  &  Co.     The  documents  were  sent  to 
him  to  deliver  to  them  upon  their  acceptance  of  the  bill  of  exchange. 
The  judgment  of  the  majority  of  the  court  below  proceeds  on  the  . 
assumption  that  the  vendors  intended  to  pass  the  property;  but  why 
should  they  have  taken  a  bill  of  lading  by  which  the  cargo  was  de- 
liverable to  themselves  unless  they  meant  to  retain  a  control  over  it  ? 
[Ceompton,  J.,  referred  to  Fragano  v.  Long.^]     There  was  nothing  to 
prevent  Goolden  from  altering  the  disposition  of  the  goods,  if  they  had 
arrived,  and  the  vendees  had  refused  to  accept  .the  bill  of  exchange. 
But  the  oil  was  not  in  existence  at  the  time  Goolden  left  the  bill  of 
lading  with  Hare  &  Co.,  and  therefore  was  incapable  of  being  trans- 
ferred.    Hastie  v.  Couturier.^     It  is  incumbent  on  the  consignees  to 
show  an  appropriation  by  consent  of  the  parties,  or  some  act  which 
per  se  transferred  the  property.     Whatever  may  have  been  the  inten- 
tion of  the  consignors,  they  were  at  liberty  to  alter  it.     The  Aurora,^ 
The  Josephine.*     [Ceompton,  J.     The  law  is  correctly  stated  by  Lord 
Brougham  in  his  judgment  in  Cowas-Jee  v.  Thompson,^  viz.,  "That 
when  goods  are  sold  in  London,  free  on  board,  the  cost  of  shipping 
them  falls  on  the  seller,  but  the  buyer  is  considered  as  the  shipper."] 
Goolden  would  not  have  been  liable  if,  with  the  authority  of  Browne 
&  Co.,  he  had  refused  to  deliver  the  bill  of  lading  to  Hare  &  Co. 
Brind  v.  Hampshire.^     [Willes,  J.,  referred  to  Williams  v.  Everett.'^] 
Prideaux  {Butt  with  him),  for  the  plaintiffs  (May  18).      Goolden 
was  the  broker  acting  for  both  parties.     [Willes,  J.     In  cases  where 
the  broker  gets  a  commission  upon  sales,  one-half  fi-om  one  party  and 
the  other  half  from  the  other,  it  is  the  common  practice  for  all  subse- 
quent matters  relating  to  the  sale  to  be  transacted  through  the  broker. 
Erle,  J.     If  Goolden  was  the  agent  of  both  parties,  the  appellant's 
case  is  not  arguable.]     The  fifth  plea  was  not  proved ;  it  states  that 
the  Sophie  was  a  general  ship  not  appointed  or  in  any  way  denoted 
by  the  defendants.     But  the  evidence  is,  that  the  defendants  requested 
the  plaintiffs  to  send  part  of  the  oil  by  the  first  vessel,  and  that  the 
Sophie  was  the  first  vessel.     The  next  allegation  not  proved  is,  that 
"  before  the  indorsement  of  the  bill  of  lading  the  ship  was  lost."     The 
plea  is  either  bad  or  a  denial  of  the  shipment  under  the  contract.     If 
it  admits  a  shipment  under  the  contract,  it  is  bad.     The  effect  of  the 
shipment  is  to  transfer  not  only  the  property,  but  the  possession  of  the 
goods.     But  it  would  be  sufficient  to  entitle  the  plaintiffs  to  recover  if 
the  property  in  the  goods  was  transferred  to  the  defendants.     The 

1  4  B.  &  C.  219.  2  9  Exch.  102.  »  4  Rob.  Adm.  218. 

4  4  Eob.  Adm.  25.  5  5  Moo.  P.  C.  165,  173. 

«  1  M.  &  W.  356.  ^  14  East,  582. 


SECT.  VI.]  BROWNE   V.    HARE.  987 

effect  of  the  contract  is,  that  the  defendants  purchased  the  oil  free  on 
board,  and  the  property  passed  on  such  sliipment,  though  payment  was 
not  to  be  made  until  the  .delivery  of  the  bills  of  lading.     The  words 
"free  on  board"  mean  that  the  oil  was  to  be  put  on  board  at  the 
expense  of  the  consignors,  and  when  on  board  to  be  at  the  risk  of  the 
consignees.     In  Cowas-Jee  v.  Thompson,^  goods  contracted  to  be  sold 
and  delivered  "  free  on  board,"  to  be  paid  for  by  cash  or  bills  at  the 
option  of  the  purchasers,  were  delivered  on  board,  and  receipts  taken 
from  the  mate  by  the  lighterman  employed  by  the  sellers,  who  handed 
the  same  over  to  them.     The  sellers  apprised  the  purchasers  of  the 
delivery ;  the  purchasers  elected  to  pay  by  bills,  which  they  accepted. 
The  sellers  retained  the  mate's  receipts  for  the  goods,  but  the  master 
signed  a  bill  of  lading  in  the  purchasers'  names.     The  purchasers  be- 
came insolvent  while  the  bill  was  running.     It  was  held  that  on  the 
delivery  of  the  goods  on  board  the  vessel,  they  were  no  longer  in 
transitu,  and  therefore  could  not  be  stopped  by  the  sellers.     The  case 
of  Turner  v.  The  Trustees  of  the  Liverpool  Docks  -  is  distinguishable 
from  the  present  case,  because  there  the  vendors  retained  the  goods 
under  their  oAvn  control,  by  taking  bills  of  lading  making  the  goods 
deliverable  to  their  own  order,  and  indorsing  them  to  their  own  agents. 
The  distinction  between  the  two  classes  of  cases  is  pointed  out  by  Mr. 
Blackburn  *  in  commenting  on  the  case  of  Fragano  v.  Long.*     [Cuomp- 
TON,  J.     That  case  is  a  strong  authority  in  favor  of  the  plaintiffs.] 
Risk  is  a  test  of  property.     From  the  time  of  the  shipment  the  goods 
were  at  the  risk  of  the  consignees.     If  the  goods  had  been  shipped 
without  taking  a  bill  of  lading,  it  must  be  admitted  that  the  property 
would  have  passed  at  the  time  of  the  shipment.     Here  the  property 
passed  at  the  moment  when  the  goods  were  shipped  in  pursuance  of 
the  contract.     There  is  evidence  that  the  goods  were  so  shipped,  and 
the  jury  have  found  the  fact.     If  the  contract  would  have  been  com- 
pletely fulfilled,  so  as  to  i>ass  the  property  without  the  bill  of  lading, 
the  taking  of  a  bill  of  lading,  and  indorsing  it  to  the  defendants,  which 
was  done  in  furtherance  of  the  contract,  cannot  alter  the  position  of 
the  parties.     The  sending  of  the  bill  of  lading  so  indorsed  to  Gooldeu 
showed  the  intent  of  the  i)laintiffs  to  perform  their  agreement.     It  is 
said  that  in  Wait  v.  Baker  ^  the  words  "  free  on  board "  were  in  the 
contract.     But  it  was  not  shown  to  have  been  the  intention  of  the 
vendor  to  fulfil  the  contract.     [Williams,  J.     It  is  sufiicient  for  your 
aro-uraent  that  the  court  viewed  it  in  that  way.]     Here  the  plaintiffs 

1  5  Moo.  P.  C.  165.  In  Couturier  v.  Hastie,  5  II.  L.  673,  it  was  said  :  "  The  goods 
are  eitlier  shipped  '  free  on  board,'  wlien  they  are  thenceforward  at  tlie  risk  of  the 
vendee,  or  they  are  shipped  '  to  arrive,'  which  saves  the  vendee  from  all  risk  till  thej 
are  safely  brought  to  port." 

2  6  Exch.  54o.  3  Blackburn  on  the  Contract  of  Sale,  128. 
<  4  B.  &  C.  219.                    5  2  Exch.  1. 


988  BROWNE   V.    HARE.  [CHAP.  II. 

did  all  they  contracted  to  do.  [Crompton",  J.  In  Turner  v.  The 
Trustees  of  the  Liverpool  Docks  ^  the  court  seem  to  affirm  the  propo- 
sition, that  if  a  vendor  says,  "  I  will  send  goods  so  as  to  be  delivered  if 
the  vendee  pays  for  them,"  it  shows  that  he  is  shipping  to  himself. 
Williams,  J.  The  argument  for  the  plaintiffs  may  be  naiTowed  to 
this,  —  that  there  is  no  difference  whether  the  bill  of  lading  makes  the 
goods  deliverable  to  the  vendors'  ordei",  and  they  indorse  it  to  the  con- 
signees, or  whether  it  makes  the  goods  deliverable  to  the  consignees.] 
It  is  said  that  the  plaintiffs  might  have  struck  out  the  indorsement, 
and  Brind  v.  Hampshire  ^  was  relied  upon.  But  by  the  shipment,  in 
performance  of  the  contract,  the  property  passed,  and  it  could  not 
afterwards  be  divested  by  any  act  of  the  i^laintiffs.  In  The  Packet  de 
Bilboa,^  the  goods  were  sent  at  the  risk  of  the  shipper,  and  the  prop- 
erty in  them  had  not  passed  to  the  consignee.  In  The  Aurora^  and  The 
Josephine  ^  there  was  nothing  to  take  the  property  out  of  the  shippers  ; 
the  shipments  were  not  under  contracts. 

Raytnond^  in  reply.     The  mere  fact  of  putting  goods  on  board  a 
ship  amounts  to  nothing.     In  order  to  ascertain  its  effect,  the  contract 
and  character  of  the  shipment  must  be  considered.     At  the  time  of 
this  shipment  three  bills  of  lading  ^  were  taken,  making  the  goods  de- 
liverable to  the  order  of  the  vendors  or  their  assigns.     The  taking  of 
such  bills  did  not  show  an  intention  to  ship  the  goods  to  the  defend- 
ants in  pursuance  of  the  contract.     If,  after  the  indorsement  of  one 
bill  of  lading  and  before  it  was  handed  to  the  defendants,  the  plaintiffs 
had  thought  it  convenient  to  alter  the  destination  of  the  shipment, 
they  could  have  done  so.     Down  to  the  time  of  the  delivei-y  of  the 
bill  of  lading  the  plaintiffs  could  have  enforced  a  claim  to  the  oil  as 
against  the  defendants.     [Willes,  J.     Suppose  I  order  of  a  person 
goods  to  be  shipped  "  free  on  board,"  and  a  bill  of  lading  is  sent  by 
post,  or  by  a  messenger,  and  before  it  reaches  its  destination  the  ship 
is  lost.     Erle,  J.     There  the  bill  of  lading  would  be  out  of  the  legal 
control  of  the  party,  and  the  property  would  pass.]     Here  there  was  a 
contract  for  a  bill  of  lading  which  the  defendants  were  to  have.     The 
shipment  did  not  pass  the  property,  because  the  plaintiffs  did  an  act 
which  retained  the  property  in  themselves  at  the  instant  of  the  ship- 
ment.    The  exj^ression  "free  on  board  "  means  only  that  the  vendor 
shall  pay  all  expenses  till  the  property  is  shipped.     It  is  said  that  the 
bill  of  lading  may  be  disregarded ;    but  if  there  had  been  none,  and 
the  plaintiffs  had  wished  to  retain  the  property  in  themselves,  they 
would  have  said  to  the  master,  "  You  shall  carry  the  goods  for  me." 
That  is  in  fact  exactly  what  they  have  now  done.     Merely  writing  the 

1  6  Exch.  543.  2  i  m.  &  W.  365.  3  2  Rob.  Adm.  133. 

<  4  Rob.  Adm.  218.  5  4  Rob.  Adm.  25. 

"  This  fact  does  not  appear  in  the  report  of  the  case  in  the  court  below. 


SECT.  VI.]  BROWNE   V.    HARE.  989 

defendant's  name  on  the  bill  of  lading,  without  delivery,  was  no  in- 
dorsement. Marston  v.  AUen,^  Wait  v.  Baker  -  shows  that  the  de- 
fendants could  not  have  maintained  trover  for  the  oil  if  the  j)laintilis 
had  chosen  to  indorse  one  of  the  bills  of  lading  to  some  one  else. 

Cu7'.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Erlk,  J.  In  this  case  we  are  of  opinion  that  the  judgment  of  the 
court  below  should  be  aifirmed. 

The  contract  was  for  the  purchase  of  unascertained  goods,  and 
the  question  has  been,  when  the  property  passed.  For  the  answer 
the  contract  must  be  resorted  to ;  and  under  that  we  think  the  prop- 
erty passed  when  the  goods  were  placed  "free  on  board,"  in  perform- 
ance of  the  contract. 

In  this  class  of  cases  the  passing  of  the  property  may  depend, 
according  to  the  contract,  either  on  mutual  consent  of  both  parties,  or 
on  the  act  of  the  vendor  communicated  to  the  purchaser,  or  on  the  act 
of  the  vendor  alone. 

Here  it  passed  by  the  act  of  the  vendor  alone.  If  the  bill  of  lading 
had  made  the  goods  "to  be  deliA^ered  to  the  order  of  the  consignee," 
the  passing  of  the  property  would  be  clear.  The  bill  of  lading  made 
them  "  to  be  delivered  to  the  order  of  the  consignor,"  and  he  indorsed  it 
to  the  order  of  the  consignee,  and  sent  it  to  his  agent  for  the  consignee. 
Thus  the  real  question  has  been  on  the  intention  with  which  the  bill  of 
lading  was  taken  in  this  form ;  whether  the  consignor  shipped  the 
goods  in  performance  of  his  contract  to  place  them  "  free  on  board," 
or  for  the  purpose  of  retaining  a  control  over  them  and  continuing  to 
be  owner,  contrary  to  the  contract,  as  in  the  case  of  Wait  v.  Baker, 
and,  as  is  explained  in  Turner  v.  The  Trustees  of  the  Liverpool  Dock,' 
and  Van  Casteel  v.  Booker.^  The  question  was  one  of  fact,  and  must  be 
taken  to  have  been  disposed  of  at  the  trial ;  the  only  question  before 
the  court  below  or  before  us  being,  whether  the  mode  of  taking  the 
bill  of  lading  necessarily  prevented  the  property  from  passing.  In  our 
opinion  it  did  not,  under  the  circumstances,  and  therefore  the  judgment 
must  be  affirmed.  Judgment  a-ffirmed. 

1  8  M.  &  W.  494.  2  2  Exch.  1. 

3  6  Exch.  543.  *  2  Exch.  091. 


990  FALKE  V.   FLETCHER.  [CHAP.  II. 


FALKE  V.  FLETCHER. 
In  the  Common  Pleas,  January  16, 1865, 

[Reported  in  34  Law  Journal  Reports,  Common  Pleas,  146.] 

This  was  an  action  tried,  before  Blackburn,  J.,  at  the  summer  assizes 
at  Liverpool,  1864. 

The  action  was  brought  for  the  conversion  of  1000  tons  of  salt.  The 
defendant  pleaded  not  guilty,  and  that  the  salt  was  not  the  property  of 
the  plaintiff. 

It  appeared  at  the  trial  that  the  plaintiff  was  a  salt  merchant,  carry- 
ing on  business  at  Liverpool,  and  that  the  defendant  was  the  owner  of 
a  vessel  called  the  Savoir  Faire.  In  the  month  of  November,  1863, 
one  De  Mattos,  a  merchant  in  London,  through  the  plaintiff,  chartered 
the  Savoir  Faire  to  load  a  complete  cargo  of  salt  and  proceed  there- 
with to  Calcutta ;  the  captain  to  apply  to  the  plaintiff  for  cargo  and 
ciistom-house  business. 

It  was  proved  that  De  Mattos  was  frequently  in  the  habit  of  employ- 
ing the  plaintiff  to  charter  vessels  for  the  conveyance  of  salt,  and  that 
the  course  of  business  was  for  the  plaintiff  to  purchase  the  cargo,  and 
to  load  it  in  his  own  lighters  and  at  his  own  expense.  That  in  the 
course  of  doing  so  he  took  the  mate's  receipts,  which  were  made  out 
in  his  own  name,  and,  when  the  whole  cargo  was  loaded,  he  took  bills 
of  lading  in  his  own  name.  These  he  sent  to  De  Mattos,  with  invoices 
of  the  price  of  the  salt,  and  received  in  exchange  De  Mattos's  accept- 
ances for  the  amount.  The  plaintiff  charged  no  commission  to  De 
Mattos,  but  charged  such  a  price  for  the  salt  as  would  remunerate  him 
for  his  trouble. 

This  course  was  followed  in  the  present  instance,  until  about  1000 
tons  of  salt  were  loaded,  when  the  plaintiff,  having  heard  that  De 
Mattos  had  stopped  payment,  declined  to  load  any  more.  The  defend- 
ant thereupon  filled  up  the  ship  on  his  own  account.  The  plaintiff 
demanded  of  the  captain  bills  of  lading  in  his  own  name  for  the  salt  on 
board  in  exchange  for  the  mate's  receipts.  These  the  defendant  re- 
fused to  permit  him  to  give,  and  the  plaintiff  thereupon  sent  the  mate's 
receipts  to  his  agents  at  Calcutta,  with  directions  to  them  to  claim  the 
salt  on  its  arrival.  This  was  done,  but  the  captain  refused  to  deliver 
up  the  salt. 

The  learned  judge  directed  the  jury  that,  if  the  property  in  the  salt 
remained  in  the  plaintiff,  the  sailing  away  fi-om  Liverpool  after  the  de- 
mand and  refusal  of  the  bills  of  lading  was  a  conversion  by  the  defend- 
ant; and  that,  if  the  plaintiff  did  not  intend  to  part  with  the  property 


SECT.  VI.]  FALKE   V.    FLETCHER.  991 

in  the  salt  when  he  placed  it  on  hoard,  it  remained  in  him  as  against 
De  Mattos  and  also  as  against  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiiF,  with  damages,  £582  195. 
6c?.,  the  damages  being  estimated  on  the  assumption  that  there  had 
been,  in  accordance  with  the  direction  of  the  learned  judge,  a  conversion 
at  Liverpool. 

Edward  James  now  moved  for  a  new  trial,  on  the  ground  of  mis- 
direction, and  that  the  damages  were  wrongly  estimated,  there  having 
been  no  conversion  until  the  vessel  reached  Calcutta.  He  contended 
that  the  salt  having  been  purchased  by  the  plaintiff,  as  agent  for  De 
Mattos,  and  delivered  on  board  a  ship  chartered  by  De  Mattos,  the 
property  in  it  had  passed  to  Do  Mattos,  and  that  the  defendant  had  a 
right  to  refuse  to  give  bills  of  lading  made  out  in  the  name  of  any  other 
person  than  De  Mattos. 

Erle,  C.  J.  I  am  of  opinion  that  there  ought  to  be  no  rule  in  this 
case.  The  plaintiff  was  in  reality  in  the  situation  of  an  unjjaid  vendor. 
Having  undertaken  to  procure  salt  as  agent  for  De  Mattos,  he  puts  it 
on  board  a  ship  chartered  by  him  for  De  Mattos,  and  takes  the  mate's 
receipts  in  his  own  name.  Upon  this  the  proper  question  was  submit- 
ted to  the  jury,  namely,  whether  the  plaintiff  intended  thereby  to  vest 
the  property  in  the  salt  in  De  Mattos,  or  whether  he  intended  to  retain 
the  control  over  it  which  he  would  have  if  such  was  not  his  intention  ; 
and  the  jury  have  found  that  question  in  favor  of  the  plaintiff.  Then 
the  question  is,  whether  there  was  a  conversion  by  the  cajitain's  sailing 
away  from  Liveqiool  and  refusing  to  give  the  plaintiff  bills  of  lading 
in  his  own  name.  By  reason  of  his  doing  so,  goods  to  which  the  plain- 
tiff was  entitled  have  been  absolutely  lost  to  him ;  and  I  think  the 
learned  judge  was  right  in  saying  that,  under  the  circumstances,  there 
was  a  conversion  Avhen  the  defendant  caused  the  goods  wrongfully  to 
be  taken  out  of  the  control  of  the  plaintiff. 

Williams,  J.  I  am  of  the  same  opinion.  It  is  a  pure  matter  of 
fact :  What  was  the  intention  of  the  plaintiff  in  putting  the  goods  on 
board  ?  There  was  evidence  upon  this  point  which  might  have  justi- 
fied the  jury  in  finding  either  way.  One  of  the  circumstances  to  be 
taken  into  consideration  was,  that  the  plaintiff  was  also  the  agent  for 
the  vendee,  and  no  doubt  that  was  pressed  on  the  part  of  the  defend- 
ant upon  the  jury.  As  to  the  damages,  it  is  clear  that  as  soon  as  the 
plaintiff  was  deprived  of  the  power  to  exercise  his  right  to  resume  pos- 
session of  the  goods  there  was  a  conversion. 

WiLLES,  J.  I  am  also  of  opinion  that  the  learned  judge  left  the  proper 
question  tothe  jury ;  namely,  whether,  looking  at  all  the  circumstances, 
there  was  an  intention  by  the  plaintiff  to  appropriate  the  salt  to  De 
Mattos  and  to  pass  the  property  to  him  when  he  ]nit  it  on  board  the 
vessel.  Looking  to  the  course  of  dealing  between  the  parties,  I  think 
it  is  clear  that  the  jury  were  right.     The  practice  of  sending  the  bill  of 


992  MOAKES   V.    NICHOLSON.  [CHAP.  II. 

lading  together  with  the  invoice  direct  to  the  principal  produced  great 
hardships  in  Key  v.  Cotesworth,^  the  goods  having  got  into  the  hands 
of  a  bankrupt  consignee.  That  eventually  led  to  a  practice  being  adopted 
similar  to  that  in  Turner  v.  The  Trustees  of  the  Liverpool  Docks  ;  ^ 
namely,  for  the  merchant  to  ship  the  goods  on  board  on  his  own  ac- 
count. That  was  the  course  of  business  adopted  in  previous  transac- 
tions between  the  plaintiff  and  De  Mattos,  and  there  is  every  reason  to 
suppose  that  in  this  case  also  he  meant  to  retain  that  security.  With 
respect  to  the  argument  that  has  been  used,  that  the  plaintiff  put  the 
goods  on  board  as  agent  for  De  Mattos,  that  appears  to  me  to  be  only 
one  circumstance  in  the  case,  and  not  a  conclusive  one.  In  one  sense, 
no  doubt,  he  was  the  agent  of  De  Mattos ;  but  for  the  purpose  of  con- 
sidering this  question  he  must  be  treated  as  a  vendor,  as  was  done  in 
Feise  v.  Wray.^  With  respect  to  the  conversion,  I  am  satisfied  that 
the  learned  judge  was  right  in  his  direction  to  the  jury. 

Keating,  J.,  concurred.  Bule  refused. 


MOAKES  V.  NICHOLSON. 
In  the  Exchequer,  Mat  31,  1865. 

{Reported  in  34  Law  Journal  Reports,  Common  Pleas,  273,  and  in  19   Common  Bench 

Reports,  New  Series,  290.] 

In  this  case  the  plaintiff  sought  to  recover  damages  for  the  conversion 
of  a  cargo  of  coal;  and  the  following  facts  were  proved  at  the 
trial. 

On  the  9th  of  December,  1864,  at  Hull,  a  person  named  Pope  bought 
of  a  person  named  Josse  a  quantity  of  coal,  and  a  great  deal  of  evi- 
dence, oral  and  written,  was  given  at  the  trial  in  order  to  show  the 
terms  of  the  sale,  the  defendant  contending  that  by  the  terms  of  this 
sale  there  was  to  be  "  payment  in  cash  against  bill  of  lading  in  the 
hands  of  Josse's  agent  in  London,"  and  that  it  was  not  the  intention  of 
the  parties  that  the  property  in  the  goods  should  pass  till  payment. 
The  coal  at  the  time  of  the  contract  was  lying  undistinguished  in  a 
heap  at  Josse's  yard,  containing  a  much  larger  quantity  than  that  con- 
tracted for,  and  it  was  to  be  shipped  on  board  a  vessel  which  was  char- 
tered by  Pope  in  his  own  name  and  on  his  own  behalf,  to  carry  it  to 
London.     On  the  13th  of  December,  whilst  the  whole  or  all  but  a  very 

1  7  Exch.  Rep.  595 ;  s.  c.  22  Law  J.  Rep.  (n.  s.)  Exch.  4. 

2  6  Exch.  Rep.  543  ;  s.  c.  20  Law  J.  Rep.  (n.  s.)  Exch.  393. 

3  3  East,  93. 


SECT.  VI.]  MOAKES    V.    NICHOLSON.  993 

small  portion  of  the  coal  was  still  undistinguished,  Pope  sold  the  coal 
he  had  contracted  for  to  the  plaintiff  on  the  Coal  Exchange  in  London. 
The  plaintiff  resold  on  the  same  day  at  a  higher  price,  and  before  ac- 
tion had  paid  Pope.  By  the  19th  of  December  the  coal  was  shipped, 
and  the  captain  signed  three  bills  of  lading,  stating  the  coal  was  to  be 
delivered  to  "  Pope  or  order  "  on  being  paid  freiglit  and  demurrage  as 
by  charter-party.  One  only  of  these  bills  was  stamped,  and  this  Josse 
retained ;  the  second,  together  with  an  invoice  and  a  letter  announcing 
the  loading,  was  sent  on  the  19th  of  December  to  Pojdc,  who  received 
them  next  day.  Josse,  not  being  able  to  get  his  money  from  Pope,  sent 
the  stamped  bill  of  lading  to  the  defendant,  his  agent,  with  directions 
to  stop  the  delivery  of  the  coal ;  and  the  captain,  under  the  defendant's 
directions,  refused  to  deliver  to  those  claiming  through  Pope,  and  the 
defendant  himself  took  the  cargo. 

The  jury  found  that  the  sale  was  for  cash,  and  the  learned  judge 
directed  a  verdict  for  the  plaintiff,  and  gave  the  defendant  leave  to 
move  to  set  this  verdict  aside  and  enter  one  for  himself,  on  the  grounds 
that  on  the  facts  admitted  and  proved  the  defendant  was  entitled  to 
the  verdict,  that  the  defendant  had  a  right  to  stop  the  coals  m  transitu^ 
and  that  neither  Pope  nor  the  plaintiff  had  any  right  to  the  property 
and  possession  of  the  coals. 

A  rule  nisi  having  been  obtained  pursuant  to  such  leave, 
D.  D.  Keane  and  Barnard  now  showed  cause.     There  was  a  com- 
plete delivery  of  the  coals  to  Pope  when  they  were  delivered  on  board 
the  vessel  chartered  by  him.    The  Isle  of  Arran  was  demised  to  Po])e : 
the  transit  therefore  was  at  an  end  when  the  coals  were  shipped.    The 
property  and  the  possession  had  both  passed,  and  the  vendor  could  have 
no  right  to  intercept  them.    [Wili.es,  J,    The  coals  were  dehvered  sub- 
ject to  a  condition  that  the  property  was  not  to  pass  until  payment.] 
The  answer  to  that  is,  that  they  were  delivered  on  board  the  buyer's 
vessel  to  one  who  was  the  buyer's  servant,  the  document  of  title  being 
made  out  in  his  name.     [Willes,  J.    They  were  put  on  board  under  a 
contract  made  under  such  circumstances  that  it  w  as  no  contract  at  all.] 
The  vendor  might,  no  doubt,  as  in  Turner  w.  The  Trustees  of  the  Liv- 
erpool Docks,  6  Exch.  543,  have  so  fi-amed  the  bill  of  lading  as  to 
reserve  to  himself  the  jus  dispo7iencU  ;  but  he  has  not  taken  that  pre- 
caution.    In  Joyce  v.  Swann,  17  C.  B.  84,  it  was  held,  that,  where  from 
all  the  facts  it  may  fairly  be  inferred  that  it  was  the  intention  of  the 
seller  to  pass  the  property  in  goods  shipi)ed  to  order,  the  mere  circum- 
stance of  the  bill  of  lading  being  taken  in  the  name  of  the  seller,  and  re- 
maining unindorsed,  will  not  prevent  its  passing.     Here  every  act  of  the 
seller  is  inconsistent  with  what  the  defendant  now  contends.     ["Willes, 
J.     Joyce  V.  Swann  hardly  touches  this  case.     Here   the  goods  were 
absolutely  delivered  to  the  buyer,  and  vested  in  him,  unless  the  words 
"  payment  against  bill  of  lading  in  the  hands  of  my  agent  in  London  " 


994  MOAKES   V.    NICHOLSON.  [CHAP.  II. 

created  a  condition  subsequent,  by  which  in  default  of  payment  the 
coals  were  to  revest  in  the  seller.]  There  is  nothing  here,  it  is  submit- 
ted, which  could  amount  to  a  condition  subsequent.  It  would  be  man- 
ifestly unjust  to  allow  the  defendant,  who  has  put  Pope  in  a  position  to 
pass  himself  off  as  the  true  owner  of  the  coals,  to  turn  round  and  claim 
them  against  a  bond  fide  purchaser  from  Pope. 

J.  A.  Russell  and  Thesiger,  in  support  of  the  rule.  The  contract  un- 
der which  the  coals  were  put  on  board  the  Isle  of  Arran  was,  that 
they  should  be  paid  for  in  cash  against  the  bill  of  lading;  and  the  only  bill 
of  lading  now  in  question  is  that  which  was  retained  by  the  seller  and 
transmitted  to  his  agent  in  order  to  get  the  cash  in  pursuance  of  the 
tei'ms  of  that  contract.  The  result  is,  either  that  the  property  in  the 
coals  never  vested  in  Pope  at  all,  or  vested  only  subject  to  the  con- 
dition that  it  should  revest  in  the  seller  on  non-performance  of  the 
condition.  Until  Pope  obtained  the  stamped  bill  of  lading,  he  could 
acquire  no  property  at  all.  The  finding  of  the  jury  concludes  the  mat- 
ter. If  the  plaintiff  chose  to  deal  with  Pope  in  the  absence  of  the  only 
document  that  could  give  him  title,  he  must  take  the  consequences.  He 
cannot  be  in  any  better  position  in  regard  to  title  than  Pope  himself 
stood  in.  In  the  cases  i-elied  on  for  the  plaintiff,  the  bill  of  lading  had 
been  handed  over :  here  it  was  retained.  [Erle,  C.  J.  The  plaintiff 
bought  without  a  bill  of  lading?]  He  bought  on  the  12th  of  December. 
The  bill  of  lading  was  dated  the  19th.  Whether  or  not  the  property 
vests  in  the  buyer  in  all  cases  depends  upon  the  terms  of  the  contract. 
See  Wilmshurst  y.  Bow^ker,  2  M.  &  G.  792,  3  Scott,  N.  R.  272 ;  in  eiTor, 
7  M.  &  G.  882,  8  Scott  N.  R.  571 ;  Brandt  v.  Bowlby,  2  B.  &  Ad.  932 ; 
Browne  v.  Hare,  4  Hurlst.  &  N.  822 ;  Blackburn's  Contract  of  Sale,  135. 
Here  the  terms  of  the  contract  clearly  negative  the  passing  of  any 
property  until  the  price  was  paid,  and  the  bill  of  lading  handed  over. 
[WiLLES,  J.,  referred  to  Smith's  Mercantile  Law,  5th  edit.  464  et  seq.^ 
where  the  authorities  are  discussed.] 

Erle,  C.  J.  I  am  of  opinion  that  the  rule  to  enter  the  verdict  for 
the  defendant  should  be  made  absolute.  Moakes  brino-s  his  action  on 
the  ground  that  the  property  in  the  cargo  of  coals  seized  by  the  defend- 
ant belonged  to  him.  It  appears  that  the  coals  were  sold  by  Josse  to 
Pope,  and  by  Pope  to  Moakes.  One  material  question  is,  whether 
Moakes  could  have  any  better  title  to  the  coals  than  Pope  had.  I  think 
not.  That  is  undoubtedly  not  clear  as  a  general  proposition ;  because, 
if  Josse  had  so  dealt  with  Pope  as  to  put  him  in  the  position  of  an  os- 
tensible owner,  by  intrusting  him  with  the  documents  of  title,  it  might 
be  that  Moakes  might  have  acquired  a  title  to  the  coals,  though  his 
vendor  Pope  had  none.  But  no  such  point  can  arise  here,  because  by 
the  terms  of  the  contract  it  was  distinctly  understood  between  Josse 
and  Pope  that  the  property  in  the  coals  was  only  to  vest  in  the  latter 
upon  the  payment  by  him  of  cash  against  the  bill  of  lading ;  and  this 


SECT.  VI.]  MOAKES   V.    NICHOLSON.  995 

condition  never  was  complied  witli.     This  being  so,  whilst  the  coals 
remained  an  unascertained  quantity,  Moakes  entered  into  a  contract 
with  Poi)e,  under  which  in  my  opinion  he  took  precisely  the  same  title 
as  Pope  had  as  between  him  and  Jesse.     The  sole  question  therefore 
is,  what  was  the  intention  of  the  parties?    The  property  could  not  pass 
out  of  Josse,  unless  there  was  a  sale  by  him  with  the  intention  that  the 
property  should  pass  to  the  vendee.     Now,  it  was  clearly  the  intention 
of  Josse — and  the  jury  have  so  found  —  to  retain  the  property  until 
his  agent  in  London  should  receive  the  cash  against  the  ])ill  of  lading. 
If  that  was  the  clear  intention  of  Josse,  the  property  did  nut  pass. 
That  this  was  the  contract,  is  clear  from  the  correspondence.     The  de- 
livery of  the  coals  on  board  a  ship  chartered  by  Pope  has  no  effect 
whatever  in  passing  the  property.     If  the  intention  was  that  the  ship 
should  be  regarded  as  the  warehouse  of  Josse  until  the  hnpiK'uing  of 
the  event  contemplated,  viz.,  the  payment  of  the  price,  the  putting  the 
coals  on  board  did  not  alter  the  position  of  the  contracting  parties.    At 
the  time  Moakes  made  his  contract  with  Pope,  there  had  been  no  de- 
livery, and  no  bill  of  lading  existed.     He  therefore  cannot  say  that  he 
was  misled  by  Pope's  being  permitted  to  hold  himself  out  as  the  true 
owner.     Upon  the  whole,  therefore,  I  think  no  property  passed   to 
Pope,  and  that  the  now  plaintiff  cannot  be  in  a  better  position  than 
Pope. 

Byles,  J.  I  am  of  the  same  opinion.  I  must  confess  I  had  at  first 
entertained  some  doubt,  because  I  thought  the  sale  to  the  plaintiff  took 
place  after  the  shipment  and  after  the  bill  of  lading  had  been  handed 
to  Pope.  But  it  turns  out  that  that  is  not  so.  The  coals  in  question 
were  not  loaded,  nor  even  distinguished  from  the  rest  of  the  coals  in 
the  vendor's  yard.  It  is  plain,  therefore,  that  no  property  passed  at  the 
time  of  the  sale.  And  it  would  seem  from  the  cases  cited  that  none 
passed  at  the  time  of  the  shipment.  The  putting  the  coals  on  board 
the  Isle  of  Arran  was  clearly  not  intended  by  the  parties  to  be  a  de- 
livery so  as  to  vest  the  property  in  the  vendee.  According  to  the  evi- 
dence and  the  finding  of  the  jury,  the  captain  was  a  sort  of  supercargo  : 
the  goods  were  not  to  become  the  property  of  Pope  until  the  conditions 
of  the  contract  were  satisfied.  Apart  from  the  representations  of  the 
vendor,  therefore,  it  is  plain  that  the  plaintift'  could  have  no  projierty 
in  the  coals.  The  case  appears  to  me  to  be  perfectly  clear  and  free 
from  doubt. 

IvEATUNG,  J.  I  am  of  the  same  opinion.  The  course  adopted  by  the 
vendor  to  retain  the  property  in  the  coals,  and  the  control  over  them, 
was  undoubtedly  somewhat  slovenly  and  unbusiness-like.  But  that  his 
intention  was  that  the  property  in  the  coals  should  not  jiass  to  the 
vendee  until  payment,  is  clear  beyond  all  question.  The  finding  upon 
that  is  quite  in  accordance  with  the  evidence.  That  being  so,  nothing 
which  took  place  afterwards  has  at  all  altered  the  rights  of  any  of  the 


996  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

parties.  I  characterize  the  proceeding  as  slovenly  and  nnbusiness- 
like,  because  circumstances  might  have  occurred  which  might  have 
placed  the  vendor  in  a  precarious  position  as  to  the  property  in  the 
coals ;  for,  though  he  may  have  supposed  he  amply  secured  himself  by 
stamj^ing  only  one  of  the  bills  of  lading  and  retaining  that  one  in  his 
own  possession,  yet  if  the  unstamped  bill  of  lading  which  was  transmit- 
ted to  Pope  had  been  produced  to  the  plaintiff  at  the  time  he  bought 
the  cargo,  and  the  plaintiff  had  acted  upon  it,  a  question  would  have 
arisen  which  might  have  placed  the  defendant's  right  in  some  jeopardy. 
But,  at  the  time  the  plaintiff  bought  and  paid  for  the  coals,  the  subject- 
matter  of  the  contract  had  not  been  ascertained. 

Rule  absolute. 


SHEPHERD  V.  HARRISON  and  Another. 
In  THE  Queen's  Bench,  January  15, 1869. 

«      ^  i^  [Reported  in  Law  Reports,  4  Quee:n's  Bench,  196.] 

J   .^  In  the  Exchequer  Chamber,  May  11,  1869. 

\    \  -<^  y  [Reported  in  Law  Reports,  4  Queen's  Bench,  493. J 

V^   In  the  House  of  Lords,  April  27,  28, 1871. 

"%  1  [Reported  in  Law  Reports,  5  House  of  Lords,  116.] 

Declaration  for  the  conversion  of  two  hundred  bales  of  cotton. 
Pleas:  1.  Not  guilty.  2.  That  the  goods  were  not  the  plaintiff's. 
Issue  thereon. 

At  the  trial  before  Mellor,  J.,  at  the  Manchester  spring  assizes,  1868, 

a  verdict  was  entered  by  consent  for  the  i^laintiff  for  £1251  13s.  8c?., 

subject  to  the  opinion  of  the  court  upon  a  case  of  which  the  folio-wing 

is  the  substance  :  — 

-  ,   s  The  plaintiff  is  a  cotton  and  general  merchant,  carrying  on  business 

J  J  7^      at  Manchester,  under  the  style  of  John  Shepherd  &  Co.     The  defend- 

v^      ^     ants  are  the  owners  of  the  screw-steamer  Olinda,  of  Liverpool.     Paton, 

nI-^    ^      Nash,  &  Co.  are  merchants  at  Pernambuco  in  the  Brazils,  and  George 

-^     Paton  &  Co.,  who  carry  on  business  at  Liverpool  as  merchants,  are 

the  Liverpool  correspondents  of  Paton,  Nash,  &  Co. 

Before  April,  1866,  several  transactions  had  taken  place  between  the 

plaintiff  and  Paton,  Nash,  &  Co.     In  all  these  (except  upon  one  occa- 

sion,  in  1865,  when  Paton,  Nash,  &  Co.  purchased  cotton  for  the  plain- 

"^  \s      tiff),  Paton,  Nash,  ^  Cp^cted  as  agents  for  the  sale  of  goods  consigned 


^.L^:.  ^'^  I  ^i^,§   :^ 


SECT.  VI.]  SHEPHERD   V.    HARRISON.  997 

to  them  by  the  plaintiff.  In  the  letter  of  Paton,  Xasli,  &  Co.  to  the 
plaintiff,  announcing  the  purchase  on  his  account,  in  18G5,  and  that 
they  had  forwarded  the  cotton  by  the  Spray,  tliey  said,  "By  the 
English  steamer  of  13th  prox.  we  sliall  send  bill  of  lading  and  value  on 
you  for  cost."  And  George  Paton  &  Co.  afterwards  wrote  to  the 
l^laintiff :  "  Herewith  we  beg  to  hand  you  bill  lading  of  two  hundred 
and  forty  bags  cotton  per  Spray.  We  presume  our  Pernambuco  friends 
have  made  a  mistake  in  sending  it  under  cover  to  us.  We  also  enclose 
draft  on  your  good  selves  for  £2072  9s.  Qd.,  which  we  will  thank  you  to 
return  with  the  needful." 

In  April,  1866,  the  plaintiff  sent  to  Paton,  Nash,  &  Co.  a  letter 
enclosing  an  order  to  buy  for  him,  not  exceeding  one  tliousand  bales  of 
cotton,  firsts,  with  from  two  hundred  and  fifty  to  three  hundred 
seconds,  or  a  proportionate  less  quantity  of  each  at  a  certain  price. 
This  order  was  not  executed  by  them ;  and  on  the  7th  of  September, 
1867,  the  plaintiff  sent  another  order  for  the  same  amount  as  to  quan- 
tity, but  at  a  less  price,  to  which  Paton,  Nash,  &  Co.  replied  on  the 
28th  of  September,  1867,  acknowledging  the  order,  and  adding,  "You 
do  not  mention  whether  jjart  of  the  order  is  to  go  against  your  funds 
lying  here,  but  we  suppose  you  intend  it  as  a  remittance."  Further 
correspondence  ensued,  the  j^laintiff  reducing  his  limit  as  to  price, 
owing  to  falls  in  the  market ;  and  in  a  letter  of  the  25th  of  October, 
1867,  he  wrote,  "Pray  don't  make  the  mistake  you  did  before  about 
our  funds  in  your  hands;  they  never  were  intended  to"  be  applied  to 
pay  for  cotton  purchases,  but  to  wait  instructions." 

On  the  5th  of  October,  1867,  seven  hundred  and  forty-seven  bales  of 
cotton  had  been  purchased  by  Paton,  Nash,  &  Co.,  on  account  of  the 
plaintiff,  and  they  wrote  on  that  day,  saying  what  they  had  purchased, 
adding,  "  On  reading  over  your  order  again,  we  are  impressed  that  you 
wish  us  to  draw  for  the  amount  of  invoice,  and  not  to  deduct  net  pro- 
ceeds in  our  hands,  and  Ave  therefore  shall  value  upon  you  on  forward- 
ing bill  of  lading."  They  also  wrote  another  letter  to  the  plaintiff  the 
same  day :  "  We  beg  now  to  enclose  invoices  of  three  hundred  and 
thirty-nine  bales  cotton  per  Capella,  costing  £1616  Ss.  Sd.,  and  two 
hundred  and  eight  ditto  by  La  Plata,  costing  £883  7s.  Id.  We  have 
drawn  upon  you,  as  per  note  at  foot,  for  the  sum,  to  which  we  beg  your 
protection.  We  are  afraid  the  Capella  will  not  be  able  to  take  the 
other  two  hundred  bales,  therefore  it  will  be  as  well  to  insure  per 
steamer  or  sailing  vessel.  Note  of  drafts.  No.  926,  tavor  of  Messrs. 
G.  Paton  &  Co.,  £1616  Ss.  Sd. ;  No.  927,  do.,  £883  7s.  Id.  The  bills 
lading  will  be  handed  to  you  by  Messrs.  G.  Paton  &  Co." 

The  invoices  were  made  out  "  on  account  and  risk  of  Messrs.  John 

Shepherd  &  Co."     These  two  lots  were  duly  received  by  the  plaintiff, 

under  bills  of  lading,  which  were  forwarded  by  Paton,  Nash,  &  Co.  to 

G.  Paton  &  Co.,  and  by  them  to  the  plaintiff,  together  with  the  two 

VOL.  I.  64 


998  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

bills  of  exchange,  with  a  letter  saying :  "  We  also  enclose  bills  for  £1616 
8s.  Sd.  and  £883  7s.  Id.,  respectively,  to  which  please  do  the  needful, 
and  return  to  us  in  course."  The  plaintiff  accepted  the  bills,  and  re- 
turned them  to  G.  Paton  &  Co.,  in  a  letter  of  the  18th  of  November, 
1867,  saying,  as  to  one  of  the  lots,  "  with  the  reservation  as  to  the  me- 
diums and  seconds  not  being  bought  according  to  our  instructions.  In 
case,  therefore,  of  any  loss  arising  from  the  sale  of  these,  we  must  claim 
against  you."  A  long  correspondence  ensued  between  the  plaintiff  and 
G.  Paton  &  Co.,  as  to  whether  or  not  the  plaintiff's  order  had  been 
complied  with.     The  plaintiff  paid  the  two  bills  at  inaturity. 

The  remaining  two  hundred  bales  purchased  by  Paton,  Nash,  &  Co. 
were  shipped  by  them  in  defendant's  screw-steamer,  the  Olinda,  and 
they  wrote  to  the  plaintiff  on  the  12th  of  November,  1867:  "Enclosed 
please  find  invoice  and  bill  of  lading  of  two  hundred  bales  cotton, 
ship])ed  per  Olinda,  S.  S.,  costing  £861  2s.  7d.  at  21i,  Rs.  9725.696,  and 
which  we  hope  may  prove  correct  and  satisfoctory.  We  have  advanced 
the  captain  of  the  Capella  £55  6s.  Qd.  as  per  receipt  enclosed,  to  be 
deducted  from  the  fi-eight  on  your  cotton,  and  on  which  you  have  five 
per  cent  commission,  an<l  insurance  £2  15s.  4f?.  to  cover  the  advance. 
We  have,  therefore,  drawn  upon  you  for  £916  9s.  Id.,  draft  No.  935, 
favor  of  Geo.  Paton  &  Co.,  to  which  we  beg  your  protection." 

The  sum  of  £916  9s.  Id.  was  arrived  at  by  adding  to  £861  2s.  Id. 
(the  price  of  the  two  hundred  bales),  £55  Gs.  Qd.,  which  had  been  ad- 
vanced by  Paton,  Nash,  &  Co.  to  the  captain  of  the  Capella ;  and  the 
I^laintiff,  when  the  cotton,  ex  Capella,  was  delivered  to  him,  paid  the 
fi-eight,  less  £55  6s.  Qd. 

The  above  letter  and  the  invoice  were  forwarded  by  Paton,  Nash,  & 
Co.  from  Pernambuco  direct  to  the  plaintiff.  The  invoice  was  headed 
"Invoice  of  two  hundred  bales  of  cotton  shipped  per  Olinda,  S.  S.,  for 
Liverpool,  on  account  and  risk  of  Messrs.  John  Shejjherd  &  Co."  The 
bill  of  exchange  and  bill  of  lading  mentioned  in  the  letter  were  for- 
warded by  Paton,  Nash,  &  Co.,  not  to  the  plaintiff,  but  to  G.  Paton  & 
Co.,  who  sent  them  forward  to  the  plaintiff  on  the  arrival  of  the  Olinda 
at  Liverpool  on  the  5th  of  December,  1867,  in  the  following  letter  of 
that  date :  "  Our  Pernambuco  letters  to  12th  ult.  are  just  to  hand,  and 
we  beg  to  enclose  bill  of  lading  for  two  hundred  bales  cotton  shipped 
by  Messrs.  Paton,  Nash,  &  Co.,  per  Olinda,  S.  S.,  on  your  account.  We 
hand  also  their  draft  on  your  good  selves  for  cost  of  the  cotton,  to 
which  we  beg  your  protection  (£916  9s.  1(7.)." 

The  bill  of  lading  was  :  "  Shipped  on  board  the  Olinda,  &c,,  by 
Paton,  Nash,  &  Co.,  two  hundred  bags,  containing  nine  hund:-ed  and 
twenty  arrobas  and  four  pounds  net  weight  of  cotton  .  .  .  unto  ordei",  or 
to  his  or  their  assigns,  he  or  they  paying  freight  on  delivery  in  cash,  with- 
out deduction,  at  the  rate  oi'^d.  sterling  per  pound  net  weight;"  and  was 
indorsed:  "Pernambuco,  13th  November,  1867.    Paton,  Nash,  &  Co." 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  '  999 

The  plaintiff  replied  to  G.  Paton  &  Co.'s  letter  as  follows:  "6th 
December,  18G7.  Your  favor  of  yesterday  is  received,  with  inclosures. 
On  reference  to  invoices  and  bills  of  exchange  which  we  have  accepted, 
we  find  that  they  have  been  drawn  in  excess  of  price  mentioned  in 
order  ;  there  is  also  a  quantity  styled  'mediums'  that  we  did  not  order 
at  all ! !  These,  with  the  hostile  ])osition  you  have  taken  with  regard 
to  the  two  hundred  and  eight  bales  ex  La  Plata,  stand  in  the  way  of 
our  accepting  the  bill  of  exchange  now  enclosed.  We  shall  place  the 
two  hundred  bales  ex  Olinda  in  another  broker's  hands,  and,  as  soon  as 
we  learn,  we  shall  inform  you  their  opinion  of  them." 

The  plaintiff  accordingly  retained  the  bill  of  lading  and  returned  the 
bill  of  exchange  unaccepted ;  and  it  was  thereupon  protested  by  G. 
Paton  &  Co. 

The  plaintiff  forwarded  the  bill  of  lading  for  the  two  himdred  bales 
ex  Olinda  to  his  Liverpool  brokers,  Eason,  Barry,  &  Co.,  with  instruc- 
tions to  pay  the  freight  and  obtain  the  cotton.  They  accordingly  pre- 
sented the  bill  of  lading,  paid  £90,  the  approximate  fi-eight  of  the  two 
hundred  bales,  and  obtained  the  defendant's  signature  to  a  deliveiy 
order  on  the  master  porter  on  the  9th  of  December,  1807.  At  this 
time  the  defendants  knew  nothing  of  the  above  circumstances  under 
which  the  plaintiff  held  the  bill  of  lading ;  but  G.  Paton  &  Co.  having 
made  a  communication  to  the  defendants,  and  demanded  possession  of 
the  cotton  under  a  dujjlicate  bill  of  lading  which  they  held,  and  having 
indemnified  the  defendants,  they  refused,  on  the  lUth  of  December,  to 
deliver  the  cotton  to  Eason,  Barry,  &  Co.,  saying  they  should  deliver 
to  G.  Paton  &  Co. 

From  the  time  the  order  for  the  one  thousand  bales  was  given  up  to 
the  time  of  the  commencement  of  this  action,  Paton,  Nash,  &  Co.  had 
in  their  hands  at  Pernambuco  money  and  goods  of  the  plaintiff  to  the 
amount  of  £3000,  or  thereabouts. 

It  was  agreed  that  the  court  should  have  power  to  draw  any  infer- 
ences of  fact  which  a  jury  might  draw. 

The  question  for  the  court  was,  whether  the  plaintiff  is  entitled  to 
recover  in  this  action  or  not. 

Quahi,  Q.  C.  {Jordan  Avith  him),  for  the  plaintiff.  The  question  is 
whether,  looking  at  the  correspondence  and  the  facts,  the  property  in 
the  cotton  passed  to  the  plaintiff,  or  Avhether  it  was  a  condition  ]>rece- 
dent  that  he  should  accept  the  bill  of  exchange  for  the  amount.  If  the 
former,  the  plaintiff  is  entitled  to  recover ;  if  the  latter,  the  defend- 
ants, the  ship-owners,  were  justified  in  refusing  to  let  the  plaintiff 
have  the  cotton,  and  in  handing  it  over  to  the  agents  of  Paton,  Nash, 
&  Co.,  under  the  duplicate  bill  of  lading.  No  doubt  the  bill  of  ladiuo- 
makes  the  cotton  deliverable  to  consignors'  order,  and  that  circum- 
stance was  relied  on  in  the  judgment  in  Turner  y.  Liverpool  Docks 
Trustees,^  as  showing  the  intention  that  the  property  should  not  pass 

1  6  Ex.  543 ;  20  L.  J.  (Ex.)  393. 


1000  SHEPHERD   V.   HARRISON.  [CHAP.  II. 

at  once  to  the  consignees;  but  the  ch-cumstances  of  that  case  differ 
materially  from  the  present.  There  the  bill  of  exchange  was  discounted 
or  sold  by  the  consignors,  and  the  bill  of  lading  specially  indorsed  was 
handed  to  the  purchasers  as  a  security ;  in  the  present  case  the  bill  of 
lading  was  indorsed  in  blank  at  Pernambuco,  and  sent  with  the  bill 
of  exchange  to  the  agents  of  the  consignors,  and  by  them  handed  over 
to  the  plaintiff;  the  passage  in  the  letter  of  the  agents  in  1865  shows 
that  this  was  a  mistake,  and  the  transaction,  therefore,  was  precisely 
the  same  as  if  the  bill  of  exchange  and  bill  of  lading  had  been  sent 
direct  to  the  plaintiff.  There  was  the  greatest  confidence  evidently 
reposed  in  the  plaintiff  by  both  Paton,  Nash,  &  Co.  and  their  agents ; 
and  it  is  only  in  time  of  peril  and  suspicion  that  the  practice  obtains  of 
attaching  the  bill  of  exchange  to  the  bill  of  lading,  and  making  the 
acceptance  or  even  payment  of  the  one  a  condition  precedent  to  the 
delivery  of  the  other.  See  per  Crompton,  J.,  in  Giirney  v.  Behrend;^ 
but  then  this  intention  is  shown,  as  Lord  Campbell  points  out,  by 
attaching  the  two  documents.  In  Wilmshurst  v.  Bowker,"^  the  facts 
were  very  similar  to  the  present,  and  the  Court  of  Exchequer  Chamber 
unanimously  reversed  a  considered  judgment  of  the  Common  Pleas, 
and  held  that  by  the  delivery  of  goods  by  the  vendor  to  the  master  of 
a  vessel  for  account  and  at  the  risk  of  the  vendee  (as  in  the  present 
case),  and  by  the  transmission  of  the  indorsed  bill  of  lading  with  the 
bill  of  exchange  to  the  vendee,  the  property  at  once  passed  to  the  ven- 
dee, and  the  acceptance  of  the  bill  of  exchange  was  only  a  condition 
subsequent,  making  the  default  of  acceptance  only  a  breach  of  contract. 
[Hannen,  J.  Moakes  v.  Nicolson  ^  shows  it  is  a  question  of  intention.] 
No  doubt ;  and  Key  v.  Cotesworth  *  shows  that  the  inference  to  be 
drawn  is  that  the  acceptance  of  the  bill  of  exchange  was  not  a  condi- 
tion precedent. 

IToIker,  Q.  C,  for  the  defendants.  The  question  is,  what  was  the  inten- 
tion of  Paton,  Nash,  &  Co.,  as  evidenced  by  what  they  did  and  wrote ; 
and  so  far  from  it  being  their  practice  to  transmit  the  bill  of  exchange 
and  bill  of  lading  direct  to  the  plaintiff,  both  on  the  former  occasion  and 
in  the  present  instance  they  send  the  documents  to  their  agents,  for  the 
obvious  purpose  that  they  may  get  the  bill  of  exchange  accepted  before 
parting  with  the  bill  of  lading ;  and  the  fact  of  the  agents  having 
parted  with  the  bill  of  lading  without  getting  the  acceptance  cannot 
affect  the  case.  In  all  the  cases  in  which  property  has  been  held  to 
pass  without  the  acceptance  of  the  bill  of  exchange,  the  bill  of  lading 
has  been  indorsed  to  and  sent  direct  to  the  purchasers.  See  Maclach- 
lan  on  Shipping,  p.  343.  Here  the  bill  of  lading  was  indorsed  in 
blank,  and  sent  to  the  agents  not  of  the  plaintiff,  but  of  Paton,  Nash, 

1  3  E.  &  B.  at  pp.  630,  631.  2  7  M.  &  G.  882. 

8  19  C.  B.  (n.  s.)  290;  34  L.  J.  (C.  P.)  273.  *  7  Ex.  595;  22  L.  J.  (Ex.)  4. 


SECT.  VI.]  SHEPHERD   V.    HARRISON.  1001 

&  Co.  Brandt  v.  Bowlby  ^  is  undistinguishable  from  the  present  case. 
Wait  V.  Baker,^  Van  Casteel  v.  Booker,^  and  Jenkyns  v.  Brown,*  are 
also  in  point  for  the  defendants.  In  the  Last  case  the  court  say  that 
the  taking  of  a  bill  of  lading  deliverable  to  the  shij^per's  own  order  is 
nearly  conclusive  evidence  that  the  property  was  not  intended  to  pass. 
Stress  has  been  laid  on  the  invoice  being  made  out  on  account  and  at 
the  risk  of  the  plaintiff;  but  that  fict  existed  in  Turner  v.  Liverpool 
Docks  Trustees,^  and  was  held  immaterial  to  affect  the  question.  That 
case  is  even  stronger  than  the  present,  as  the  delivery  there  was  on 
board  the  vendees'  own  ship.  But  the  fact  of  the  bill  of  lading  being 
made  to  vendors'  order  was  held  to  show  almost  conclusively  the  inten- 
tion not  to  part  wath  the  jus  disjionencli.  Ellershaw  v.  Magniac  ®  is  to 
the  same  effect;  so  also  is  Sheridan  v.  New  Quay  Company." 

Quain^  Q.  C,  in  reply.  The  material  fact  has  been  overlooked  that 
during  the  whole  of  the  transaction,  Paton,  Nash,  &  Co.  had  in  their 
hands  goods  or  money  of  the  plaintiff  to  the  extent  of  £3000.  Brandt 
V.  Bowlby  is  distinguishable ;  there  the  bill  of  lading  sent  to  the  pur- 
chaser had  not  been  indorsed.  In  Wait  v.  Baker  and  Jenkyns  v. 
Brown,^  the  indorsed  bill  of  lading  had  been  handed  to  third  persons 
as  a  security  for  the  payment  of  the  bills  of  exchange ;  and  in  all  the 
other  cases  cited  for  the  defendants,  the  bills  of  lading  had  been  so 
dealt  with  by  the  vendors. 

CocKBUEN,  C.  J.  I  am  of  opinion  that  our  judgment  must  be  for  the 
defendants.  I  agree  that,  in  one  point  of  view  in  which  the  case  can 
be  looked  at,  the  question  is  one  of  intention ;  viz.,  what  was  the 
intention  of  Paton  &  Co.,  of  Pernambuco,  in  sending  over  this  bill  of 
lading  ?  I  agree  that  this  is  a  matter  as  to  which  we,  having  power  to 
draw  inferences  of  fact,  must  make  up  our  minds  upon,  and  decide ;  but 
I  think  we  cannot  decide  it  inde})endently  of  the  authorities  to  which 
our  attention  has  been  called.  I  think  those  authorities  are  conclusive 
as  to  the  inference  which  we  ought  to  draw,  independently  of  what 
may  be  my  own  opinion  as  to  the  inference  to  be  drawn  fi'om  the  facts 
we  have  before  us. 

Cases  wei'e  cited  by  Mr.  Quain  with  a  view  of  pointing  out  the  infer- 
ence we  ought  to  draw  in  an  opjiosite  conclusion  to  that  which  I  feel 
myself  compelled  to  draw.  Those  cases  are  certainly  very  strong 
indeed,  and  conclusive  to  show,  sujtposing  the  consignor  of  goods  sends 
them  to  this  country  accompanied  by  bills  of  lading  and  bills  of  ex- 
change which  are  to  be  accepted  by  the  consignee  of  the  goods  as  the 
consideration   for  the   consignment,  that  where  the  consignor  sends 

12B.  &Ad.  932.  .    ^  2  Ex.  1 ;  17  L.  J.  (Ex.)  307. 

3  2  Ex.  691;  18  L.  J.  (Ex.)  9.  •*  14  Q.  B.  496,  502;  19  L.  J.  (Q.  B.;  286,  288. 

5  6  Ex.  543 ;  20  L.  J.  (Ex.)  393.        6  g  Ex.  570,  n. 

7  4  C.  B.  (N.  8.)  618;  28  L.  J.  (C.  P.)  58. 

8  14  Q.  B.  496 ;  19  L.  J.  (Q.  B.)  286. 


1002  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

those  documents  direct  to  the  consignee,  that  ought  to  lead  to  the 
inference,  and  only  properly  lead  to  the  inference,  that  he  intended  the 
consignee  should  have  at  once  the  disposal  of  the  property  and  posses- 
sion of  the  goods  consigned,  leaving  to  him,  as  a  matter  simply  of 
obligation  under  the  contract,  to  return  the  bills  of  exchange  accepted, 
not  as  a  condition  precedent  to  the  property  vesting,  but  simply  as  a 
matter  of  contract.  But,  on  the  other  hand,  the  authorities  are  equally 
good,  to  my  mind,  to  show,  where  the  consignor  sends  the  bill  of  lading 
to  an  agent  in  this  country  to  be  by  him  handed  over  to  the  consignee, 
and  accompanies  that  with  bills  of  exchange  to  be  accepted  by  the  con- 
signee, that  that  indicates  a  different  intention  ;  A'iz.,  that  the  handing 
over  the  bill  of  lading  and  the  acceptance  of  the  bill  or  bills  of  exchange 
should  be  concurrent  parts  of  one  and  the  same  transaction. 

The  case  of  Brandt  v.  Bowlby,^  to  which  our  attention  was  called  by 
Mr.  Holker,  appears  to  me  to  be  conclusive  of  the  present  case.     That 
case  has  not  the  additional  circumstances  which  Mr.  Quain  referred  to 
as  being  the  reason  of  the  decision  in  the  case  of  Turner  v.  Liverpool 
Docks  Trustees,^  and  the  other  cases  cited  by  Mr.  Holker.    There  is  no 
such  circumstance  in  the  case  of  Brandt  v.  Bowlby  as  the  parting  with 
the  bills  of  exchange  and  bills  of  lading,  and  handing  them  to  the  trans- 
feree of  those  bills.    All  that  happened  in  that  case  was  this  :  The  con- 
signor of  the  goods  sends  to  the  consignee,  with  the  usual  invoice,  an 
unindorsed  bill  of  lading.     He  sends  an  indorsed  bill  of  lading,  as  in 
the  pi-esent  case,  to  his  agent,  accompanied  by  the  bill  of  exchange,  to 
be  by  the  agent  presented  to  the  consignee  for  acceptance ;  the  bill  of 
lading  to  be  delivered  to  the  consignee  at  the  same  time.     Now,  that 
was  considered  as  conclusive  to  show  that  the  consignor  did  not  intend 
that  the  property  should  vest  at  once  in  the  consignee,  but  only  upon 
condition  of  the  accej^tance  of  the  bill  of  exchange  being  accomphshed. 
It  is  true  that  in  that  case  there  was  the  additional  circumstance,  which 
was  relied  on  as  by  no  means  an  immaterial  one  to  distinguish  that 
case  from  this,  that  an  unindorsed  bill  of  lading  was  sent  to  the  con- 
signee.    Here  we  have  as  a  fact,  not  an  unindorsed  bill  of  lading  sent 
to  the  consignee,  but  no  bill  of  lading  at  all  sent.     I  see  no  difference 
in  principle  between  sending  a  bill  of  lading,  which,  not  being  indorsed,  is 
inoperative  and  amounts  to  nothing,  and  not  sending  a  bill  of  lading  at  all. 
The  case  of  Brandt  v.  Bowlby,  therefore,  seems  to  be  on   all-fours 
with  the  present,  and  conclusive  of  it.     I  think  also,  as  to  the  other 
cases  cited  by  Mr.  Holker,  the  additional  circumstance  of  the  bills  of 
exchano-e  drawn  on  the  consignee  having  been  made  over  to  a  third 
party  for  consideration  makes  no  difference.     All  that  can  be  said  is, 
that  a  consignor  who  sends  a  cargo  to  England,  and  draws  bills  of  ex- 
change on  his  consignee,  and  who  makes  over  his  right  to  a  third  party, 

1  2  B.  &  Ad.  932.  «  6  Ex.  543 ;  20  L.  J.  (Ex.)  898. 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  1003 

had  a  right  to  retain  the  bill  of  lading  until  the  bill  of  exchange  has 
been  accepted;  and,  until  the  bill  is  accepted,  it  would  be  the  duty  of 
the  third  party  not  to  hand  over  the  bill  of  lading,  because  the  indorse- 
ment of  the  bill  of  exchange  and  the  handing  of  the  bill  of  lading  to 
him  is  putting  the  third  party  in  the  place  of  the  original  party,  the 
consignor.     I  think,  therefore,  we  are  concluded  by  those  cases. 

How  those  cases  would  have  been  decided,  if  presented  in  a  form 
which  occurred  to  my  mind  more  than  once,  is  another  thing ;  but  it 
will  be  obvious  that,  to  do  justice  between  the  parties,  it  was  right  that 
the  bills  of  exchange  not  having  been  accepted  by  the  party  to  whom 
the  goods  were  consigned,  the  consignor  should  not  be  i)rejudiced  by 
having  the  bill  of  lading  operate  to  transfer  the  property  for  which  he 
has  not  got  any  consideration  or  equivalent.  Those  decisions  did  jus- 
tice between  the  parties  under  the  circumstances  which  presented  them- 
selves. 

The  question  might  have  been  presented  in  another  form.  If  it  is 
true  that  until  the  bills  of  exchange  are  accepted  as  the  consideration 
for  handing  over  the  bills  of  lading,  the  property  does  not  pass,  I  am 
very  much  afraid,  if  the  property  perished,  it  would  be  very  questionable 
whether  the  consignor,  who  has  bought  the  goods  upon  the  order  of 
his  i)rinci]ial,  and  who  has  paid  his  money  for  them,  might  not  be  unable 
to  recover  the  money.  I  confess  I  should  ])refer  to  put  the  case  upon 
a  ditterent  ground,  which  would  be  equally  favorable  to  the  defendants 
here,  and  which  seems  to  me  to  secure  the  rights  of  all  parties  more 
effectually.  That  consideration  is  an  additional  reason  in  my  mind  for 
decidino-  this  case  in  favor  of  the  defendants.  The  consi!j;nor  is  acting: 
in  the  foreign  country  as  the  agent,  buying  goods  for  a  i)rincipal  here, 
not  as  the  purchaser  of  goods  who  sells  on  his  own  account  to  a  con- 
signee in  this  country.  Upon  the  agent  buying  them  he  at  once  ships 
the  goods  on  account  of  and  risk  of  his  principal  here ;  and  he  calls 
upon  that  princi]»al  to  insure  the  goods.  And  it  strikes  me,  as  a  possi- 
ble view  of  the  case,  that  it  may  be  well  contended  that  the  property 
in  the  goods  would  at  once  pass  to  the  consignee ;  but  then,  inasmuch 
as  the  agent  has  paid  the  money  by  means  of  which  the  goods  have 
been  obtained  for  the  principal,  the  case  might  be  treated  as  altogether 
analogous  to  the  case  of  seller  and  buyer ;  and  as  the  seller  of  goods 
has  a  lien  upon  them  for  the  price  until  he  is  j)aid,  so  the  agent,  laying 
out  his  money  on  the  goods  for  his  principal,  ought  by  analogy  to  have 
a  lien  upon  the  goods  uutil  he  has  been  repaid  the  m<jney  which  he  has 
laid  out  in  the  purchase  of  them.  Apply  that  to  the  present  facts. 
Paton  &  Co.,  at  Pernambuco,  having,  as  the  agents  of  the  plaintiff,  pur- 
chased goods  for  him,  and  laid  out  their  money  for  him,  although  the 
property  in  these  goods  may  pass  to  the  ]»rincipal,  are  entitled  to  hold 
possession  of  those  goods  against  him,  until  they  have  been  recouped 
the  amount  which  they  have  laid  out  in  order  to  acquire  those  goods 


1004  SHEPHERD    V.    HARRISON.  [CHAP.  II. 

for  him.  It  is  the  same  thing  if,  instead  of  taking  the  price  of  the 
goods  in  money,  they  agree  to  take  bills  of  exchange,  because  they 
would  equally  be  entitled  to  have  a  lien  upon  the  goods  until  they  are 
satisfied  either  in  the  shape  of  money  or  negotiable  bills  of  exchange. 
In  that  point  of  view  the  defendants  would  be  entitled  to  say  to  the 
plaintiff:  "Although  the  property  in  these  goods  has  passed  to  you,  the 
persons  who  bought  these  goods  for  you,  and  laid  out  their  money  in 
the  purchase  of  them,  are  entitled  to  hold  possession  of  the  goods  as 
against  the  right  which  otherwise  would  attach  to  the  property,  and  as 
against  you  they  are  entitled  to  be  recouped  the  money  which  they 
have  laid  out,  before  the  goods  are  handed  over  to  you."  We  are  not 
driven  to  look  at  the  case  in  the  present  instance  as  a  case  of  a  lien  by 
which  the  parties  are  entitled  to  retain  possession  of  the  goods  until 
they  are  paid  the  amount  which  they  have  laid  out,  for  I  think  the  case 
is  concluded  by  the  authorities  cited  on  the  part  of  the  defendants  by 
Mr.  Holker,  and  therefore  our  judgment  will  be  for  the  defendants. 

Mellor,  J.  I  am  of  the  same  opinion.  It  appears  with  reference 
to  the  interest  of  Paton  &  Co.,  of  Pernambuco,  in  these  goods,  that  the 
substance  of  the  transaction  was  this :  Although  they  purchased  them 
on  account  of  a  principal  at  Manchester,  yet,  still  from  the  very  nature  of 
the  things,  they,  having  found  the  money,  must  be  taken  to  be  buying 
for  him  on  a  condition  or  promise  on  his  part  of  furnishing  them  with 
funds,  that  is  to  say,  by  accepting  bills  of  exchange  for  the  money 
which  they  had  advanced  on  his  account.  The  case  may  very  shortly 
be  disposed  of  on  the  ground  that  there  are  one  or  two  facts  which 
appear  to  me,  according  to  the  decision  in  the  case  of  Turner  v.  Liver- 
pool Docks  Trustees,^  to  be  conclusive.  One  is  the  form  of  the  bill  of 
lading  which  is  made  to  the  consignors  or  their  order,  and  it  is  indorsed 
in  blank  and  sent  to  their  agents,  which  is  strong  to  show  that  they  cer- 
tainly did  not  intend  it  to  be  handed  over  to  Messrs.  Shephei'd,  of  Man- 
chester, without  the  bill  being  accepted  which  they  sent  with  it.  I 
cannot  find  out  any  reason  why  they  should  send  the  bill  of  lading  so 
indorsed  accompanied  by  the  draft,  unless  it  was  that  they  might  have 
the  bill  of  exchange  accepted  at  the  time  when  the  bill  of  lading  was 
handed  over.  This  appears  to  me,  according  to  the. judgment  delivered 
by  Patterson,  J.,  in  Turner  v.  Liverpool  Docks  Trustees,^  to  be  a  gov- 
erning fict;  against  which  it  appears  to  me  there  is  nothing  in  the  case 
to  outweigh  it.  Although  in  some  of  the  cases  cited  there  were  addi- 
tional facts  which  might  afford  additional  evidence  of  intention  on  the 
part  of  the  consignors,  yet  the  absence  of  these  ficts  do  not  appear  to 
me  at  all  to  affect  the  ground  on  which  our  judgment  ought  to  proceed. 
The  above  facts  appear  pregnant  in  themselves,  and  I  can  come  to  no 

1  6  Ex.  543;  20  L.  J.  (Ex.)  393. 

2  6  Ex.  at  p.  567  ;  20  L.  J.  (Ex.)  at  pp.  399,  400. 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  1005 

Other  conclusion  than  that  it  was  the  intention  of  the  consignors,  in 
sending  the  bill  of  lading  so  indorsed  accompanied  by  the  bill  of  ex- 
change to  their  agents,  to  retain  the  right  of  property  until  the  bill  was 
accepted.  Then  all  that  the  agents  do  is  this.  On  receiving  the  bill 
of  lading  and  the  draft  they  send  them  at  once  to  Mr.  Shepherd,  ac- 
companied by  this  letter:  " Our  Pernambuco  letters  to  the  I'ith  ult. 
are  to  hand,  and  we  beg  to  enclose  bill  of  lading  of  200  bales  of  cotton 
shipped  by  Paton,  Nash,  &  Co.,  on  your  account.  We  hand  also  their 
draft  on  your  —  good  —  selves  for  cost  of  cotton  to  which  we  beg  your 
protection."  Now,  I  thnik  the  fair  inference  is  this,  that  these  gentle- 
men had  great  confidence  in  the  plaintiff,  and  they  therefore  do  not 
say :  "  Accei)t  the  draft,  and  then  you  shall  have  the  bill  of  lading  ;  " 
but  "We  send  the  draft  for  your  acceptance,  together  with  the  bill  of 
lading."  I  think  the  meaning  of  that  is,  "  We  send  you  the  bill  of  lad- 
ing, relying  that  you  will  accept  the  draft."  I  think  when  the  ijlaintiff 
did  not  accept  the  draft,  the  agents  were  justified  in  what  they  did  in 
preventing  the  delivering  the  cotton  to  the  plaintiff's  agents  in  Liver- 
pool; and  that  the  defendants  were  justified  in  obeying  the  orders  of 
Paton  &  Co.'s  agents. 

Hannen,  J.,  concurred. 

Hayes,  J.  I  am  entirely  of  the  same  opinion.  It  would  make  no 
difference  whether  this  were  the  case  of  principal  and  agent,  or  buyer 
and  a  seller.  There  is  no  doubt  that  if  it  were  the  case  of  an  unpaid 
vendor  he  would  want  the  money,  and  that  circumstance  would  be 
clear  proof  to  show  he  did  not  intend  to  part  with  the  goods  until  he 
took  money  or  security  for  it.  Here  the  agents  in  this  country  did  not 
insist  on  having  the  bill  accepted  before  handing  over  the  bill  of  lading, 
because  they  knew  the  parties  were  respectable.  When  a  person  i)arts, 
or  is  about  to  part  with  his  goods,  he  expects  to  get  a  consideration  for 
them ;  and  that  being  so,  in  this  case,  instead  of  sending  the  bill  of 
lading  to  the  person  to  whom  they  send  the  invoice,  Paton  &  Co.  send 
the  invoice  to  the  person  for  whom  they  have  bought,  and  they  send 
the  bill  of  lading  to  their  own  agents  Avith  the  bill  of  exchange.  What 
is  that  for?  Why,  to  keep  control  over  the  property  until  the  transac- 
tion is  closed  by  the  bill  of  exchange  being  accepted,  and  the  bill  of 
lading  handed  over  in  return.  If  the  plaintiff  had  gone  to  the  Liver- 
pool house  and  said  :  "  I  do  not  mean  to  accept  this  bill ;  I  do  not  think 
your  princii)als  have  bought  the  goods  according  to  my  order,  but  I  will 
trouble  you  to  give  me  the  bill  of  lading,"  nobody  can  doubt  that  the 
answer  would  have  been  :  "  We  cannot  let  you  have  it."  Does  not  this 
show  what  really  was  the  intention  ?  It  seems  to  me,  therefore,  that 
as  soon  as  Paton  &  Co.'s  agents  found  the  bill  of  exchange  was  not  to 
be  accepted,  they  acted  properly  in  issuing  the  duplicate  bill  of  lading 
which  they  had  kept  in  hand,  and  so  obtaining  possession  of  the 
goods. 


1006  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

The  effect  of  the  transaction  appears  to  me  very  clear,  and  Turner 
V.  Liverpool  Docks  Trustees/  and  the  other  cases  referred  to,  are 
authorities  that  judgment  ought  to  be  for  the  defendants. 

Judgment  for  the  defendants. 

Error  having  been  brought  upon  the  foregoing  judgment  to  the 
Exchequer  Chamber, 

Jordan  (with  him,  Quain,  Q.  C),  for  the  plaintiff,  urged  the  same 
arguments  as  in  the  court  below,  and  cited  the  same  cases,  and  distin- 
guished those  cited  for  the  defendants  in  the  court  below.  He  also 
cited  Walley  v.  Montgomery,'^  Joyce  v.  Swann,''  Dracachi  v.  Anglo- 
Egyptian  Navigation  Company,^  and  Coxe  v.  Harden ;  ^  and  he  relied 
especially  on  the  last  case,  as  undistinguishable  from  the  present.^ .  .  . 
He  also  contended  that,  at  all  events,  the  plaintiff  was  entitled  to  retain 
the  bill  of  lading  and  return  the  bill  of  exchange  unaccepted,  inasmuch 
as  it  was  drawn  for  a  price  beyond  the  limit  given  by  the  plaintiff,  and 
also  for  a  sum  in  excess  of  what  was  due  for  the  particular  cotton. 

Holker,  Q.  C.  (with  him.  Gully),  for  the  defendants,  w\as  not  called 
upon. 

Kelly,  C.  B,  The  case  has  been  very  ably  argued  by  the  counsel 
for  the  plaintiff,  and  if  any  doubt  could  have  been  raised  in  my  mind 
it  must  have  been  suggested  by  that  argument,  but  on  looking  at  the 
whole  case  I  have  no  doubt  in  the  matter.  The  real  questions  are 
rather  questions  of  fact  than  of  law ;  but  we  have  the  assistance  of 
many  decided  cases,  and  of  what  has  fallen  from  learned  judges,  to 
guide  us  as  to  the  conclusion  to  be  arrived  at,  and  as  to  the  inferences 
to  be  drawn  from  the  facts  disclosed.  The  circumstances  of  the  case 
are  somewhat  different  from  those  of  any  case  hitherto  before  the  courts. 
[The  Lord  Chief  Baron  went  through  the  facts.]  The  first  question 
is,  whether  the  plaintiff  had  a  right  to  refuse  acceptance  of  the  bill  of 
exchange  and  yet  retain  the  bill  of  lading,  and  obtain  possession  of  the 
goods  from  the  defendants,  the  ship-owners.  In  other  words,  whether 
the  property  in  the  cotton  had  actually  vested  in  the  plaintiff,  Avho  was 
consignee,  so  as  to  entitle  him*  to  keep  the  bill  of  lading  and  refuse 
acceptance  of  the  draft,  subject  to  a  cross  action  by  the  consignors,  or 
whether  the  plaintiff  was  bound  in  law,  according  to  the  contract,  actual 
or  implied  by  law,  to  accept  the  draft  as  a  condition  to  his  being  enti- 
tled to  keep  the  bill  of  lading.  The  contract  between  the  parties  was 
not  reduced  to  writing ;  and  the  question,  therefore,  depends  entirely 
on  the  correspondence  set  out  in  the  case,  and  the  acts  shown  to  have 
been  done;  and  we  must  infer  what  were  the  respective  rights  and 

1  6  Ex.  543  ;  20  L.  J.  (Ex.)  398. 

2  3  East,  585.  3  17  c.  B.  (n.  s.)  8-1. 
4  Law  Rep.  3  C.  P.  190.                         5  4  East,  211. 

*>  The  learned  couusel  stated  that  case. — Ed. 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  1007 

duties  of  the  parties  from  this  correspondence  and  these  acts.  The 
letter  from  Paton,  Xash,  &  Co.,  of  the  12th  of  November,  1867,  is  the 
first  letter  having  an  immediate  bearing  on  the  question.  This  letter, 
enclosing  an  invoice  (by  which  it  was  stated  that  the  cotton  was  shipped 
on  account,  and  at  the  risk  of  the  plaintiff)  did  not  contain  a  bill  of 
ladino-,  althoufrh  we  find  in  the  letter  the  exi)ression  :  "  Enclosed  please 
find  invoice  and  bill  of  lading  of  200  bales  of  cotton,  per  Olinda. 
The  consignors  had,  hoAvever,  obtained  bills  of  lading  from  the  captain, 
making  the  cotton  deliverable  to  their  order  or  assigns,  and  they  in- 
dorsed the  bills  of  lading,  and  they  forwarded  them,  not  direct  to  the 
plaintiff,  but  sent  them  Avith  the  h'lW  of  exchange  in  a  letter  to  their 
own  agents  at  Liverpool ;  but  what  directions  this  letter  contained  we 
are  not  informed ;  we  only  know  that  the  consignors  did  transmit  the 
bill  of  lading  to  their  agents. 

Here,  then,  was  a  purchase  of  cotton  on  account  of  the  plaintiff,  and 
a  consignment  of  cotton  to  the  plaintiff,  with  invoices  made  out  in  his 
name,  and  further,  "on  account  and  at  the  risk"  of  the  consignee;  no 
bills  of  lading  sent  to  him,  but  all  sent  to  the  agents  of  the  consignors, 
and  to  them  only.      What  are  we,  who  are  to  draw  inferences  of  fact, 
to  determine  is  the  effect  of  these  facts  ?     On  the  authority  of  Coxe  v. 
Harden,^  we  are  called  upon  by  the  plaintiff's  counsel  to  hold,  as  mat- 
ter of  law,  that,  by  the  mere  fact  of  the  shipment  being  on  account 
and  at  the  risk  of  the  consignee,  the  property  in  the  goods  so  shi]iped 
at  once  and  in-evocably  vested  in  the  consignee.     I  am  of  opinion 
that  it  did  not.      No  doubt,  in  the  case  of  Coxe  v.  Harden,  if  Ave  look 
at  a  single  sentence  in  the  judgment  of  Grose,  J.,  that  such  a  shipment 
vested  the  property  in  the  consignees  by  law,  subject  only  to  be  divested 
by  stoppage  in  transitu,  and  had  this  been  laid  down  as  an  abstract 
proposition  of  laAV  independent  of  the  particular  circumstances  of  the 
case,  it  Avould  be  entitled  to  Aveight,  and  would  be  for  the  respectful 
consideration  of  this  court.     But  the  facts  of  that  case  justified  the 
language.    The  bill  of  lading  Avas  transmitted  direct  to  the  consignees, 
unindorsed  it  is  true,  but  it  enabled  them  to  get  possession  of  the  goods, 
Avhether  rightly  or  Avrongly  as  far  as  the  caj^tain  was  concerned  is  im- 
material ;  and  there  was  nothing  in  the  circumstances  of  tlie  case  to 
shoAV  that  the  delivery  of  the  goods  was  subject  to  any  condition  Avhat- 
ever,  and  the  transaction  Avas  closed  excejit  only  the  payment  of  the 
money.    Therefore  the  judgment  in  that  case  cannot  be  taken  as  laying 
it  down  as  a  proposition  of  laAv,  that  u]ion  the  shipment  of  goods  on 
the  consignee's  account  and  risk,  the  property  necessarily  vests  in  him; 
and  it  leaves  the  question  open  to  be  decided  by  the  peculiar  f:icts  of 
each  case.     In  the  present  case,  besides  the  fact  of  the  invoice  being 
on  account  and  risk  of  the  plaintiff,  there  is  one  fact  peculiar  io  it,  that 

1  iEnsi,  211,218. 


1008  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

the  letter  from  Paton,  Nash,  &  Co.,  of  the  12th  of  November,  forward- 
ing the  invoice,  and  giving  the  account  to  the  plaintiiF,  says  the  bill  of 
lading  is  also  enclosed,  whereas  they  transmitted  it  through  their  own 
agents,  accompanied  by  the  bill  of  exchange  for  the  price  of  the  goods. 
What  is  the  inference  to  be  drawn  ?  That  the  consio-nors  take  the  bill 
of  lading  deliverable  to  their  own  order,  and  transmit  the  bill  indorsed 
to  their  agents,  though  we  have  not  the  letter  to  the  agents  before  us, 
is  cogent  to  lead  us  to  surmise  that  the  agents  were  authorized,  if  not 
directed,  to  take  the  course  they  pursued,  and  which  it  was  their  duty 
to  take  if  they  had  no  directions,  viz.,  to  send  the  bill  for  acceptance, 
and  not  finally  part  with  the  bill  of  kding  until  they  had  the  accept- 
ance. And  the  inference  I  draw  from  the  facts  and  course  of  dealing, 
so  far  as  it  is  disclosed,  is  that  the  accejatance  of  the  bill  of  exchange 
was,  if  not  a  condition  precedent,  to  be  a  concurrent  act  with  the  de- 
livery of  the  bill  of  lading.  Stress  has  been  laid  upon  the  expression 
in  the  letter,  "  Enclosed  please  find  invoice  and  bill  of  lading ; "  and  it 
was  urged  that  the  bill  of  lading  was  omitted  by  mistake ;  and  it  was 
further  urged  that  in  a  former  transaction  the  omission  was  stated  to 
be  a  mistake.  But  I  do  not  draw  any  such  inference ;  the  letter  was 
written  by  a  clerk,^  and  I  should  rather  infer  that  when  it  came  to  for- 
warding the  letters  with  the  documents,  the  principals  withdrew  the 
bill  of  lading,  though  from  the  hurry  of  business  the  expression  in  the 
letter  was  left  as  it  was.  Moreover,  on  the  former  occasion  it  was 
the  agents,  and  not  the  principals,  who  said  the  sending  of  the  bill  of 
lading  under  cover  to  the  agents  was  a  mistake ;  and  what  the  con- 
signors did  on  the  former  occasion  is  precisely  what  they  did  in  the 
present  instance,  and  what  they  had  done  throughout  their  transactions 
with  the  plaintiff,  viz.,  to  forward  the  bill  of  lading  under  cover  to  their 
agents.  We  cannot,  therefore,  draw  any  inference  in  favor  of  the  plain- 
tiflT  from  this  expression  in  the  letter  of  the  12th  of  November,  1867. 
On  the  contrary,  the  inference  is  strongly  the  other  way  when  we  advert 
to  the  letter  of  the  consignors'  agents  to  the  plaintiff  of  the  5tli  of 
December,  and  the  letter  of  the  consignors  to  the  plaintiff  of  the  pre- 
vious October,  which  are  conclusive  to  show  that  the  intention  was 
(and  the  question  is  one  of  intention  only),  that  the  bills  of  lading  were 
to  be  handed  to  the  plaintiff  by  the  consignors'  agents,  as  the  consign- 
ors tell  him  they  will  be,  on  the  plaintiff  accepting  the  draft  drawn  by 
the  consignors  upon  him,  —  that»  the  handing  over  the  bill  of  lading 
and  the  accepting  the  draft  were  to  be  concurrent  acts.  Throughout 
the  transaction,  the  course  has  uniformly  been  for  the  consignors, 
though  shipping  the  goods  on  account  and  at  the  risk  of  the  consignee, 
to  transmit  the  bills  of  lading,  not  direct  to  the  plaintiff,  but  through 
their  own  agents  with  the  bill  of  exchange ;  with  the  obvious  purpose 

1  The  letters  of  Paton,  Nash,  &  Co.  were  all  signed  per  pro. 


SECT.  VI.]  SHEPHERD   V.    HARRISON.  1009 

and  intention  to  prevent  the  passing  of  the  property  until  the  hills  of 
exchange  had  been  accepted. 

But  another  point  was  made  for  the  plaintiff;  it  was  insisted,  what- 
ever the  course  of  deahng  might  have  been,  that  the  plaintiff  had  drawn 
for  a  larger  sum  than  was  due  for  the  price  of  the  goods,  and  that  the 
price  exceeded  the  plaintiff's  limit;  and,  therefore,  that  he  was  not 
bound  to  accept  the  bill  of  exchange,  and  might  retain  the  bill  of  lad- 
ing. Possibly  he  was  not  bound  to  accept  the  bill,  though  I  do  not 
find  any  express  limitation  in  the  plaintifl^'s  letter  to  the  lower  price, 
and  the  consignoi-s  seem  to  have  a  discretion  left  them  in  the  matter. 
But,  at  all  events,  he  had  no  right  to  repudiate  the  contract  in  part ;  if 
he  did  not  accept  the  bill,  he  could  have  no  right  to  the  goods.  On 
the  former  occasion,  it  may  be  observed,  although  he  made  objections 
to  the  price,  the  plaintiff  accepted  and  ultimately  paid  the  bills. 

For  the  above  reasons,  my  opinion  is  that  the  intention  evidenced  by 
the  letters  and  acts  of  the  parties  was,  that  the  bill  of  lading  was  only 
to  be  handed  over  by  the  agents  and  retained  by  the  plaintiff  on  his 
accepting  the  bill  of  exchange;  and,  consequently,  that  the  plaintiff 
had  no  right  to  the  cotton  ;  and  that  the  judgment  pronounced  by  the 
Court  of  Queen's  Bench,  in  favor  of  the  defendants,  was  right,  and 
ought  to  be  affirmed. 

WiLLES,  J.     I  am  of  the  same  opinion. 

CHAX^^ELL,  B.  I  only  wish  to  add  a  few  words.  It  is  quite  clear 
that  the  bill  of  lading  as  to  the  200  bales  per  Olinda  was  not  covered 
by  the  letter  of  the  12th  of  November ;  it  is  equally  clear  that  the  bill 
of  lading  was  sent  to  the  consignors'  agents,  and  not  to  the  plaintiff,  the 
consignee ;  but  I  am  not  quite  satisfied,  that,  if  the  bill  of  lading  had 
been  covered  by  the  letter,  Avbich  says,  "We  have  therefore  drawn 
upon  you  a  draft  so  and  so,  in  favor  of  our  agents,  to  Avhich  we  beg 
your  protection,"  the  plaintiff  Avould  have  been  entitled  to  keep  it  with- 
out accepting  the  draft ;  for  what  the  consignors  said  may  well  amount 
to  saying :  "  We  send  you  a  bill  of  exchange  for  the  price  of  the  cot- 
ton for  your  acceptance,  and  the  bill  of  lading,  which  you  may  keep  on 
condition  of  your  returning  the  draft  accepted."  The  i»laintiff,  how- 
ever, clearly  repudiated  the  contract  as  far  as  he  could,  on  the  ground 
that  his  Umit  of  price  had  been  exceeded  ;  and  he  had,  therefore,  no 
right  to  the  goods ;  but  if  the  bill  of  lading  had  been  covered  by  the 
letter,  I  doubt  whether  it  would  have  altered  the  case. 

MoN'TAGUE  Smith,  J.  I  am  also  of  opinion  that  the  judgment 
should  be  affirmed. 

Cleasby,  B.  I  am  not  prepared  to  dissent  from  the  conclusion  of 
the  rest  of  the  court,  although  I  entertained  considerable  doubt.  Look- 
ing at  the  question  as  one  of  intention,  I  think  when  goods  are  shipped 
for  and  on  account  and  at  the  risk  of  the  consignee,  j^rhna  facie  it 
must  be  the  intention  to  pass  the  property  to  the  consignee.     Still,  the 


1010  SHEPHERD   V.   HARRISON.  [CHAP.  II. 

question  really  depends  on  what  disposition  the  consignors  intended  to 
make  of  the  bill  of  lading;  if  they  had  sent  it  to  the  plaintiff,  I  cannot 
doubt  the  property  would  have  been  intended  to  pass ;  they  did  not, 
however,  do  so,  but  forwarded  it  to  their  agents  in  a  letter ;  we  have 
not  that  letter  before  us ;  the  letter,  as  it  seems  to  me,  would  have  been 
evidence,  and  would  have  put  an  end  to  all  doubt.  Not  having  the 
letter,  I  must  consider  on  whom  the  burden  of  proof  lies  ;  and  as  the 
goods  are  shipped  for  and  at  the  risk  of  the  plaintiff,  and  the  consignors 
send  him  a  letter  not  inconsistent  with  his  having  the  property  in  the 
goods,  it  did  seem  to  me  that  this  would  shift  the  burden  of  proof  from 
the  plaintiff,  and  make  it  incumbent  on  the  defendants  to  show  that  the 
intention  of  the  consignors  was  not  to  pass  the  property  to  the  plaintiff, 
by  showing  the  terms  of  the  letter  in  which  they  forwarded  the  bill  of 
lading  to  their  agents.  That  was  my  difficulty.  However,  there  are 
many  facts  in  the  case,  tending  to  the  conclusion  at  which  the  court 
has  arrived ;  and  I  am  not  prepared  to  express  a  formal  dissent  from 
the  judgment  in  favor  of  the  defendants.  Judgment  affirnied. 

From  the  foregoing  judgment  error  was  brought  to  the  House  of 
Lords. 

Sir  R.  Palmer^  Q.  C,  and  Mr.  T.  H.  Jordan^  for  the  plaintiff  in  error. 
The  fiicts  here  show  that  the  plaintiff  was  entitled  to  this  cotton,  and 
the  law  is  in  accordance  with  the  facts.  The  sending  of  an  invoice 
and  a  bill  of  lading  to  a  consignee  vests  in  him  the  property  in  the 
goods,  subject  only  to  be  divested  by  the  consignor's  right  to  stop  the 
goods  in  transitu  in  case  of  the  consignee's  insolvency.  Walley  v. 
Montgomery.^  So  absolutely  was  the  j^roperty  there  considered  to  be 
vested  in  the  consignee  that,  the  consignor's  agent  having  under 
another  bill  of  lading  obtained  possession  of  the  cargo,  it  was  held 
that  an  action  of  trover  was  maintainable  against  him,  without  even  a 
tender  of  the  payment  of  the  freight  being  made  to  him  or  to  the  cap- 
tain. The  right  here  was  complete  not  only  by  the  shipping  on  board 
"on  account  and  risk"  of  the  plaintiff,  as  declared  both  by  the  letters 
and  the  invoices ;  but  also  by  the  transmission  to  the  i^laintiff  of  the 
bill  of  lading  itself.  There  was  no  feeling  of  misgiving  as  to  payment, 
no  idea  of  any  necessity  to  stop  in  transitu  /  for  the  house  at  Pernam- 
buco  had  in  hand  ample  funds  belonging  to  the  plaintiff;  and  conse- 
quently when  the  invoices  were  sent  there  could  be  no  doubt  of  the 
intention  to  make  the  plaintiff  the  absolute  owner  of  the  cotton.  The 
acceptance  of  the  bill  of  exchange  was  not  a  condition  precedent  to 
the  plaintiff's  right  to  the  possession  of  the  cotton.  Coxe  v.  Harden  ^ 
is  perhaps  a  still  stronger  authority  for  asserting  that,  on  the  shipment 
of  goods  on  account  and  at  the  risk  of  the  consignee,  the  title  to  the  goods 

1  3  East,  585.  2  4  East,  211. 


I 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  1011 

vests  absolutely  in  him.  [Lokd  Cairns.  There  the  consignee  was  in 
actual  possession  of  the  goods,  by  the  caittaiii  liaviug  (k-liverecl  them  to 
him.]  Lord  EUenborough  there  said  :  ^  "  The  goods  were  originally  pur- 
chased for  Oddy  &  Co.  by  their  order,  and  shipped  for  their  use  and  at 
their  risk  ;  they  were  therefore  entitled  to  the  ]>ossession  of  them  as  soon 
as  they  arrived,  the  shippers  not  having  stojijicd  them  in  transitu.^''  And 
Mr.  Justice  Grose  said :  "  They  were  originally  ordered  to  be  sh"ip])ed 
by  Oddy  &  Co.,  under  whom  the  defendants  claim ;  they  were  accord- 
ingly shijtped  on  account  of  Oddy  &  Co.,  and  at  their  risk;  that  vested 
the  i)roperty  in  them  by  hiLW,  subject  only  to  the  shipj^ers'  stopping  the 
goods  hi  transiifuP  The  lord  chief  baron  in  this  case,  quoting  that 
passage  and  acknowledging  its  weight  as  an  abstract  proposition  of 
law,  tried  to  get  rid  of  it  by  applying  it  subject  to  the  particular  cir- 
cumstances of  this  case.  But  the  circumstances  here  do  not  justify 
sucli  application.  The  possession  of  large  funds  on  the  credit  side  of  the 
plaintiff's  account  renders  it  impossible  to  believe  that  there  was  any 
notion  of  treating  him  as  a  customer  whose  solvency  was  doubted.-  .  .  . 
Brandt  v.  Bowlby  ^  was  relied  on  in  the  court  below,  but  does  not  seem 
an  authority  here ;  for  the  circumstances  there  were  very  peculiar,  and 
the  person  in  whom  the  property  of  the  wheat  would  have  vested  had 
not  only  sent  to  cancel  his  order  before  the  shipment  was  made,  but 
had  afterwards  confirmed  that  cancellation ;  his  own  conduct,  as  Lord 
Tenterden's  judgment  shows,  precluded  him  from  setting  up  what 
would  otherwise  have  been  an  absolute  title.  Wait  v.  Baker*  does  not 
affect  the  present  case ;  for  not  only  was  the  bill  of  lading  made  out 
in  the  usual  form  to  the  shipper's  order,  but  the  vendee  at  one  time 
refused  to  receiA'e  the  bill  of  lading,  asserting  that  the  cargo  was  infe- 
rior to  sample,  and  on  that  refusal  the  bill  of  lading  was  indorsed  to 
the  plaintiffs.  [Lord  Cairns.  Do  not  the  circumstances  here  show 
that  the  vendors  reserved  their  control  over  the  property?]  They  do 
not;  they  contradict  that  idea.  The  letter  about  the  money  of  the 
plaintiff  in  the  hands  of  Paton  &  Co.,  the  forms  of  the  invoices,  the 
notice  enclosed  "  please  find  invoice  and  bill  of  lading,"  the  transmis- 
sion of  the  bill  of  lading  of  this  very  cotton  itself,  the  letter  of  George 
Paton  &  Co.  in  1865,  in  which  they  say  that  the  transmission  to  them, 
and  not  to  the  plaintiff,  of  the  bill  of  lading  was  a  mistake,  and  a  letter 
in  which  they  suggest  to  the  plaintiff  that  he  should  insure,  all  show 
an  intention  at  once  to  vest  in  the  jdaintilf  the  title  to  the  jn-operty, 
and  that  it  had  vested  in  him.  In  Joyce  v.  Swaun^  it  was  held  that 
there  may  be  a  complete  contract  so  as  to  pass  the  goods  fi-om  the 

1  4  East,  217. 

^  The  learned  counsel  here  cited  Guruey  v.  Behrend,  3  El.  &  Bl.  G22 ;  Wilmshurst 
V.  Bowker,  7  M.  &  Gr.  882  ;  and  Key  v.  Cotesworth,  7  Exch.  595.  —  Ed. 
3  2  B.  &  Ad.  932.  4  2  Exch.  1. 

6  17  C.  B.  (n.  s.)  84. 


1012  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

seller  to  the  buyer,  although  the  price  has  not  been  definitely  agreed  on 
between  them.  Where  from  all  the  facts  it  may  fairly  be  inferred  that 
it  was  the  intention  of  the  seller  to  pass  the  jjroperty  in  goods  shipped 
to  order,  the  mere  circumstance  of  the  bill  of  lading  being  taken  in 
the  name  of  the  seller,  and  remaining  unindorsed,  will  not  prevent  its 
passing.  Upon  this  principle  it  was  that  in  Browne  v.  Hare  ^  the  ven- 
dee was  treated  as  having  the  property  in  a  quantity  of  rape  oil  vested 
in  him,  and  was  held  liable  to  pay  for  it  after  it  had  been  wholly  lost 

Mr.  HolJcer,  Q.  C,  and  Jfr.  Gulhj,  for  the  defendants  in  error,  were 

ailed  on. 
At  the  conclusion  of  the  argument  on  behalf  of  the  plaintiff  in  error 
their  lordships  delivered  judgment  as  follows:  — 

Lord  Chelmsford. 

My  lords,  your  lordships,  I  believe,  consider  it  unnecessary  to  hear 
any  argument  on  the  part  of  the  defendants.  The  question  for  you 
to  determine  is  whether  the  defendants,  the  owners  of  the  vessel 
Olinda,  were  bound  to  deliver  to  the  plaintiff  200  bales  of  cot- 
ton which  were  shipped  by  Paton,  Nash,  &  Co.  from  Pernambuco, 
and  invoiced  "on  account  and  at  the  risk"  of  the  plaintiff,  and 
whether  they  are  liable  to  an  action  for  the  non-delivery.  The  ques- 
tion is  one  entirely  of  fact,  depending  upon  the  circumstances  stated 
in  the  special  case,  and  upon  inferences  which  the  courts  below  were 
at  liberty  to  draw  fi'om  those  facts.  [His  lordship  stated  them,  and  he 
referred  particularly  to  the  letter  in  which  it  was  said :  "  On  reading 
over  your  order  again,  we  are  impressed  that  you  wish  us  to  draw  for 
the  amount  of  invoice,  and  not  to  deduct  net  proceeds  in  our  hands, 
and  we  therefore  shall  value  on  you  on  forwarding  bills  of  lading."] 

That  therefore  was  the  course  of  dealing  which  thenceforth  was  to 
take  place  between  the  parties  with  regard  to  consignments  made  by 
Paton,  Nash,  &  Co.  on  the  orders  of  Mr.  Shepherd.  Accordingly, 
after  the  cotton  was  purchased  by  Paton,  Nash,  &  Co.,  parts  of  it  were 
sent  in  two  vessels  called  the  Capella  and  La  Plata,  and  the  other  part 
in  the  Olinda,  on  which  the  present  question  arises. 

Now,  when  the  cotton  was  shipped  on  board  the  Capella  and  the  La 
Plata,  bills  of  lading  were  sent  (and  this  is  a  most  important  circum- 
stance) not  to  Mr.  Shepherd,  but  to  the  agents  of  Paton,  Nash,  &  Co., 
Messrs.  George  Paton  &  Co.  of  Liverpool ;  and  the,  letter  of  the  25th 
of  October  announcing  that,  says :  "  The  bills  lading  will  be  handed 
over  to  you  by  Messrs.  George  Paton  &  Co."  Accordingly  George 
Paton  &  Co.  sent  the  bills  of  lading  to  the  plaintiff,  and  also  enclosed 
the  bills  for  acceptance  in  a  letter  of  the  16th  of  November,  in  which 

1  3  H.  &  N.  484  ;  4  H.  &  N.  822. 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  1013 

they  say  :  "  We  beg  to  hand  you  herewith  bills  of  lading  for  339  bales 
cotton  per  Capella  and  208  bales  cotton  per  La  Plata,  received  this 
morning  from  our  Pernambuco  friends.  We  also  enclose  bills  on  your 
good  selves  for  £1616  8s.  Scl,  and  £883  Is.  Id.,  to  which  please  do  the 
needful  and  return  to  us  in  course." 

Did  Mr.  Shepherd  the  plaiutift"  then  believe  that  he  would  not  be 
entitled  to  receive  the  cotton  upon  these  bills  of  lading  so  sent  to  him, 
without  his  accepting  the  bills  of  exchange?  Why,  what  does  he  say 
in  his  letter?  He  says:  "Your  favor  of  the  16th  instant  is  to  hand, 
bringing  two  bills  for  acceptance,  which,  as  desired,  we  now  return  ac- 
cepted, but  with  the  reservation  as  to  tlie  mediums  and  seconds  not 
beinir  bought  according  to  our  instructions."  And  then  he  makes  an 
apology  for  not  having  sent  the  bills  of  exchange  immediately,  for  he 
says:  "Your  letter  did  not  arrive  on  Saturday  till  after  offices  were 
closed,  say  1  P.  M." 

It  appears  to  me  that  this  is  very  important  indeed,  as  showing  the 
nature  of  the  transactions  between  the  parties,  to  consider  what  was 
done  with  regard  to  a  portion  of  this  order,  and  that  the  bills  of  lading 
were  sent  to  the  agents  of  Paton,  ISTash,  &  Co.,  and  not  to  the  plaintiff, 
apparently  preserving  to  Paton,  Nash,  &  Co.  the  Jus  disponendi  over 
these  goods,  and  not  passing  the  actual  absolute  property  in  them  to 
the  plaintiff. 

Then  with  regard  to  the  200  bales  of  cotton  in  question,  the  course  of 
proceeding  appears  to  have  been  this  :  They  were  shipped  on  board  the 
defendants'  vessel,  the  Olinda;  and  a  letter  of  the  12th  of  November 
was  written,  on  which  stress  has  been  laid  -^-ith  regard  to  one  passage 
which  it  contains  :  "  Enclosed  please  find  invoice  and  bill  of  lading  of 
200  bales  cotton  shipped  per  Olinda."  Hence  it  is  said  that  there  was 
evidently  the  intention,  originally  at  all  events,  to  send  the  bill  of 
lading  to  the  plaintiff,  and  not  to  the  agents  of  Paton,  Nash,  &  Co.  But 
I  confess  it  appears  to  me  that  the  former  dealings  with  regard  to  the 
other  parcels  of  cotton  sent  by  the  Capella  and  La  Plata,  transmitting 
the  bills  of  lading  upon  those  occasions  to  the  agents  of  Paton,  Xash, 
&  Co.,  and  not  to  the  plaintiff,  very  strongly  lead  me  to  the  conclusion 
that  it  was  a  mistake  to  say  that  they  intended  to  enclose  the  bill  of 
lading.  Probably  when  they  came  to  look  at  the  letter  they  said  : 
"  Oh,  this  will  not  do ;  we  don't  intend  to  send  the  bill  of  lading  to  the 
plaintiff;"  and  therefore  they  altered  the  destination  of  it  by  sending 
it  to  their  agents  instead  of  to  the  plaintiff. 

Then  the  agents,  George  Paton  &  Co.,  Avrite  on  the  5th  of  December 
to  the  plaintiff:  "Our  PcTuambuco  letters  to  12th  uU.  are  just  to  hand 
and  we  beg  to  enclose  bill  of  lading  for  200  bales  cotton  shipped  by 
Messrs.  Paton,  Nash,  &  Co.,  per  Olinda,  S.  S.,  on  your  account.  We 
hand  also  their  draft  on  your  good  selves  for  costs  of  the  cotton,  to 
VOL.  I.  65 


1014  SHEPHERD    V.    HARRISON.  [CHAP.  II. 

which  we  beg  your  protection."  Now  what  must  Mr.  Shepherd  have 
understood,  having  regard  to  previous  dealings  with  respect  to  the  other 
portions  of  the  cotton  ?  What  must  he  have  understood  by  this  letter 
of  George  Paton  &  Co.,  the  agents,  but  this,  that  he  was  not  to  deal 
with  the  bill  of  lading  unless  he  accepted  the  bill  of  exchange  which 
was  sent  at  the  same  time?  I  think  there  can  be  no  doubt  whatever 
that  that  would  be  the  fair  and  proper  impression  made  by  this  letter 
on  his  mind,  having  regard  to  previous  transactions. 

In  answer  to  that  he  writes  to  them :  "  On  reference  to  invoices  and 
bills  of  exchange  which  we  have  accepted,  we  find  that  they  have  been 
drawn  in  excess  of  price  mentioned  in  order ;  there  is  also  a  quality 
styled  '  mediums '  that  we  did  not  order  at  all.  These,  with  the  hostile 
position  you^  have  taken  with  regard  to  the  208  bales  ex  La  Plata,  stand 
in  the  way  of  our  accepting  the  bill  of  exchange  now  enclosed.  We 
shall  i^lace  the  200  bales  ex  Olinda  in  another  broker's  hands,  and  as 
soon  as  we  learn,  we  shall  inform  you  their  ojiinion  of  them." 
Well,  he  did  so.  He  sent  back  their  bill  of  exchange  unaccepted, 
and  then  2:)laced  the  bill  of  lading  in  his  own  broker's  hands,  Messrs. 
Eason,  Barry,  &  Co. 

It  has  been  said  that  upon  that  bill  of  lading,  if  the  plaintiff's  agent 
had  acted  promjitly,  he  might  and  would  have  received  and  would  have 
been  entitled  to  receive  the  cotton  ex  the  Olinda.  What  would 
have  been  the  consequence  of  that  it  is  unnecessary  for  us  to  say. 
Under  these  circumstances,  if  it  is  clear  that  he  was  not  entitled  to  use 
the  bill  of  lading  without  accepting  the  bills  of  exchange,  it  is  possible 
that  an  action  of  trover  might  have  been  brought  against  him  had  he 
got  possession  of  the  cotton,  and  that  the  damages  would  have  been 
the  amount  of  the  bills  of  exchange  which  he  was  bound  to  accept. 
But  it  is  unnecessary  for  us  to  consider  that  question.  Before  any  use 
had  been  made  of  the  bill  of  lading,  George  Paton  &  Co.  interfered ; 
they  produced  their  bill  of  lading  and  demanded  possession  of  the 
goods  under  an  indemnity,  and  the  goods  were  given  up  to  them. 

The  question  then  is,  whether  under  these  circumstances  the  plain- 
tiff was  entitled  to  the  possession  of  the  goods.  The  question  with 
regard  to  the  property  may,  perhaps,  be  a  different  question  ;  but  the 
question  now  is,  whether  he  was  entitled  to  have  the  possession  of  the 
goods  on  the  production  of  the  bill  of  lading,  and  whether  the  defend- 
ants are  liable  to  an  action  of  trover  for  refusing  to  deliver  the  cot- 
ton to  him,  and  for  delivering  it  to  George  Paton  &  Co. 

Now  that  being,  as  I  have  already  said,  a  question  of  fact,  and  of 
inference  to  be  derived  fi-om  the  circumstances  stated  in  the  special 
case,  we  have  had  the  opinion  of  two  courts,  —  I  should  say  the  unani- 
mous opinion,  notwithstanding  some  slight  doubt  intimated  by  Baron 
Cleasby,  —  of  nine  judges  on  the  subject,  that  the  plaintiff  under  the 
circumstances  was  not  entitled  to  the  possession  of  the  cotton. 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  1015 

But  it  is  said  on  the  part  of  the  phiintifF,  that  the  inference  of  foot  is 
onl}-  to  be  drawn  with  reference  to  decisions  which  have  been  made 
with  regard  to  documents  which  pass  the  property  in  goods ;  and  we 
have  been  referred  to  cases  to  show  that  where  -goods  are  shijjped  on 
account  of  and  at  the  risk  of  a  consignee,  the  absolute  property  in  the 
goods  vests  in  him,  subject  only  to  a  right  on  the  part  of  the  consignor 
to  stop  in  transitu.  Some  strong  cases  have  been  cited  on  that  sub- 
ject, and  particularly  two  before  Lord  Ellenborough  (Walley  v.  Mont- 
gomery ^  and  Coxe  u.  Harden  '^).  In  the  case  of  Coxe  v.  Harden,  the 
consignee  had  obtained  possession  of  the  goods,  which  Ellenborough 
said  removed  the  difficulty  which  stood  in  the  way  of  the  consignees, 
namely,  the  circumstance  of  the  captain  having  signed  the  bills  of  lad- 
ing in  such  terms  as  did  not  entitle  them  to  call  upon  him  for  a  delivery 
under  their  bill  of  lading,  which  was  unindorsed ;  showing  therefore 
that  upon  a  shipment  with  an  invoice  on  account  and  at  the  request  of 
the  consignee,  the  consignor  may  impose  conditions  on  the  delivery  of 
the  possession. 

Now  that  this  is  always  a  question  of  intention  appears  to  me  to  be 
decided  by  the  case  of  Moakes  v.  Nicolson.^  .  .  .* 

My  lords,  in  a  book  to  which  my  noble  and  learned  friend  near  me 
(Lord  Cairns)  has  referred  me,  and  which  appears  to  be  very  ably 
wi-itten,  on  the  sale  of  personal  property,^  the  authorities  on  the  sub- 
ject of  reservation  of  the  J  us  disponendi  are  all  collected,  and  the  whole 
matter  is  summed  iip  clearly  and  distinctly  in  the  following  passage: 
"  The  following  seem  to  be  the  principles  established  by  the  foregoing 
authorities :  first,  where  goods  are  delivered  by  the  vendor  in  pursuance 
of  an  order  to  a  common  carrier  for  delivery  to  the  buyer,  the  delivery 
to  the  carrier  passes  the  property,  he  being  the  agent  of  the  vendee  to 
receive  it,  and  the  delivery  to  him  being  equivalent  to  a  delivery  to  the 
vendee ;  secondly,  where  goods  are  delivered  on  board  of  a  vessel  to  be 
carried,  and  a  bill  of  lading  is  taken,  the  delivery  by  the  vendor  is  not 
a  delivery  to  the  buyer,  but  to  the  captain  as  bailee  for  delivery  to  the 
person  indicated  by  the  bill  of  lading  as  the  one  for  -whom  they  are  to 
\)Q  carried.  This  principle  runs  through  all  the  cases,  an<l  is  clearly 
enunciated  by  Parke,  B.,  and  by  Byles,  J.,"  in  two  cases  to  which  refer- 
ence is  there  made.*^ 

Under  these  circumstances  I  apprehend  your  lordships  can  entertain 
no  doubt  whatever  that  the  judges  of  the  Court  of  Queen's  Bench  and 
the  judges  of  the  Court  of  Exchequer  Chamber  came  to  a  right  conclu- 

1  3  East,  585.  ^  4  East,  211,  217.  ^  19  c.  B.  (n.  s.)  290. 

*  His  lordship  stated  that  case. — Ed. 

5  Benjaniiu's  "  Treatise  on  the  Law  of  Sale  of  Personal  Property,"  book  ii.  c.  6, 
p.  288. 

6  Wait  V.  Baker,  2  Ex.  1 ;  Moakes  v.  Nicolson,  19  C.  B.  (n.  s.)290;  34  L.  J.  (C. 

P.)  273. 


1016 


SHEPHERD   V.    HARRISON. 


[chap.  TT. 


sion  upon  the  facts  which  were  before  them,  and  that  the  plaintiff  was 
not  entitled  to  recover  in  this  action  against  the  defendants  for  the 
non-delivery  to  him  of  the  cotton  in  question.  I  therefore  advise  your 
lordships  that  the  judgment  of  the  court  below  should  be  affirmed. 

Lord  Westbuet. 

Out  of  respect  for  the  elaborate  argument  that  we  have  heard  I  shall 
say  a  very  few  words,  though  they  are  probably  unnecessary.  I  take 
the  law  to  be  perfectly  clear,  and  I  think  the  inferences  that  ought  to 
be  derived  from  the  facts  in  this  case  are  also  clear.  The  house  at  Per- 
nambuco  accepted  a  commission. and  agency  to  buy  cotton  on  behalf  of 
Shepherd  &  Co.,  the  present  appellants.  They  did  so,  and  they  paid 
for  that  cotton  out  of  their  own  money.  It  was  expressly  agreed  that 
funds  which  they  happened  to  be  in  possession  of,  belonging  to  Shep- 
herd &  Co.,  should  be  altogether  separated  from  the  transaction,  and 
should  not  be  resorted  to  for  the  purposes  of  the  cotton  purchase. 
They  shipped  the  cotton  on  board  the  Olinda,  —  I  am  speaking  of  the 
200  bales ;  and  when  they  delivered  the  cotton  to  the  captain  of  the 
Olinda,  they  took  from  him  the  ordinary  bill  of  lading  to  their  own 
order. 

Now  what  was  the  effect  of  that  transaction  in  law  and  according  to 
mercantile  usage  ?  The  effect  Avas  this,  that  they  controlled  the  pos- 
session of  the  captain,  and  made  the  captain  accountable  to  deliver  the 
cotton  to  the  holder  of  the  bill  of  lading.  The  bill  of  lading  was  the 
symbol  of  property,  and  by  taking  the  bill  of  lading  they  kept  to  them- 
selves the  right  of  dealing  with  the  property  shipped  on  board  the 
vessel.  They  also  kept  to  themselves  the  right  of  demanding  posses- 
sion from  the  captain.  They  had  therefore  all  the  incidents  of  property 
vested  in  themselves.  Now  that  was  by  no  means  inconsistent  with 
the  special  terms  of  the  shipment,  namely,  that  the  cotton  was  shipped 
on  account  of  and  at  the  risk  of  the  buyers.  That  is  perfectly  consist- 
ent with  the  property  as  evidenced  by  the  bill  of  lading  remaining  in 
the  possession  of  the  vendors  of  the  cotton  in  question. 

Then,  if  that  be  so,  it  is  incumbent  on  the  buyer  to  adduce  circum- 
stances to  control  the  legal  effect  of  that  transaction,  and  to  show  that 
the  evidence  of  ownership  and  of  the  right  to  deal  with  the  property 
consequent  on  the  authority  of  the  bill  of  lading  are  controlled  by 
other  facts,  and  that  it  was  not  intended  to  retain  the  right  of  posses- 
sion and  the  interest  in  the  property  shipped,  and  the  right  of  disposing 
of  it  in  the  holder  of  the  bill  of  lading.  Undoubtedly  the  obligation  to 
show  this  lies  upon  the  individual  who  contradicts  what  would  other- 
wise be  the  ordinary  legal  conclusion  fi-om  that  transaction. 

Well,  then,  what  are  the  circumstances  which  are  relied  on  for  that 
puri)ose  ?  First  of  all  our  attention  is  directed  to  the  letter  of  the  12th 
of  November,  in  which  it  appears  that  by  an  accidental  slip  of  the 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  1017 

pen,  —  not  corrected,  I  admit,  —  the  bill  of  lading  is  spoken  of  as  ac- 
companying the  invoice  which  the  letter  covers.  Certainly  that  was 
not  the  course  of  dealing  between  the  parties;  for  in  no  case  had  the 
bill  of  lading  been  sent  by  the  vendors  of  the  cotton  to  Shepherd,  the 
buyer;  but  on  all  former  occasions  the  bills  of  lading  had  been  sent  to 
the  agent  of  the  vendor.  Messrs.  Shepherd  had  therefore  no  right 
whatever  to  infer  from  past  experience,  that  it  was  the  intention  of  the 
parties  to  send  them  the  bill  of  lading,  which  in  reality  the  letter  did 
not  cover,  or  that  they  were  bound  by  having  used  that  expression  to 
send  to  them  the  bill  of  lading.  It  was  a  mere  accidental  mistake, 
which  oufjht  not  to  affect  at  all  the  legal  conclusion  to  be  derived  from 
the  transaction. 

Then  we  come  to  another  inquiry  which  is  most  important,  which  is 
this :  With  w^hat  intent  and  what  reasonable  expectation,  and  for  what 
purpose,  were  the  bill  of  lading  and  the  bill  of  exchange  sent  to  the 
present  plaintiff  by  the  Liverpool  house,  Paton  &  Co.,  who  were  the 
asrents  of  the  house  in  Pernambuco  ?  Now  I  think  no  man,  certainly  no 
lawyer,  would  consider  that  the  letter  was  written  with  any  other  con- 
viction in  the  mind  of  the  writer  than  this,  that  it  would  not  be  con- 
sistent Avith  courtesy  towards  a  house  like  that  of  Shepherd  &  Co.,  to 
say :  "  Remember,  you  are  not  to  possess  yourselves  of  the  bill  of  lad- 
ing until  you  have  accepted  the  bill  of  exchange."  That  is  not  said  in 
terms,  but  it  is  indicated  by  the  transaction.  And  I  have  no  doubt 
that  there  is  not  an  honorable  man  of  business  in  Liverpool  that  would 
have  hesitated  even  for  a  moment  to  derive  that  conclusion  from  the 
language  of  the  letter,  and  that  if  he  did  not  choose  to  accept  the  bill 
of  exchange  he  would  have  sent  back  both  the  bill  of  lading  and  the 
bill  of  exchange.  The  facts  are  plain,  and  I  cannot  but  hold  that  that 
w^as  the  inference  which  the  Liverpool  house  intended  should  be  drawn 
fi-om  their  sending  the  two  documents  together ;  namely,  to  intimate 
their  expectation  that  the  one  would  not  be  retained,  namely,  the  bill 
of  lading,  unless  the  bill  of  exchange  should  be  accepted.  Unfortu- 
nately, it  appears  from  another  letter  that  there  has  been  some  slight 
misunderstanding  or  ill-will  between  the  parties,  and  accordingly  the 
course  is  adopted  of  sending  back  tlie  bill  of  exchange  unaccepted,  and 
retaining  the  bill  of  lading.  I  think  the  retention  of  the  bill  of  lading 
(without  intending  to  convey  the  slightest  imputation  on  the  character 
of  other  parties)  was  contrary  to  what  you  may  call  the  truth  and 
honor  of  the  case.  I  think  the  truth  of  the  case  was  this,  that  the  two 
documents  were  originally  intended  to  be  dependent  the  one  on  the 
other,  and  that  they  were  sent  together  under  the  conviction  and  in 
the  co'ntidence  that  the  bill  of  exchange  would  be  accepted  and  returned 
to  the  sender  in  consideration  of  the  bill  of  lading.  That,  however,  was 
not  done,  and  therefore  I  take  it  that  the  bill  of  lading  acquired  in  that 
manner  gave  no  right  of  property  to  the  present  appellant,  and  that 


1018  SHEPHEED    V.    HARRISON.  [CHAP.   II. 

the  judgment  of  the  court  below  was  therefore  correct,  and  ought  to 
be  affirmed. 

Lord  Colonsat. 

My  lords,  it  appears  to  me  on  consideration  of  the  case  stated  and 
the  authorities  we  have  heard  that  the  question  comes  in  the  present 
case  to  this :  Quo  animo  were  the  bill  of  lading  and  the  bill  of  exchange 
sent  by  the  Pernambuco  house  to  their  agents  in  Liverpool,  and  by 
them  sent  to  Shepherd  ?  I  think,  looking  to  the  circumstances  in  which 
the  parties  were  placed,  looking  to  the  manner  in  which  the  previous 
bills  of  lading  and  bills  of  exchange  in  regard  to  the  other  parcels  of 
cotton  were  dealt  with,  the  plain  meaning  and  intention  of  the  parties 
was  this,  that  the  bill  of  lading  should  be  retained  only  if  the  bill  of 
exchange  were  accepted ;  and  therefore  it  was  incumbent  on  the  plain- 
tiff here,  if  he  meant  to  refuse  the  acceptance  of  the  bill  of  exchange, 
to  return  also  the  bill  of  lading.  That  being  so,  I  am  clearly  of  opinion 
that  the  judgment  of  the  court  below  was  correct. 

Lord  Cairns. 

My  lords,  this  is  an  action  founded  on  a  right  of  property,  and  in 
order  to  succeed  the  plaintiff  in  the  action  must  show  that  at  some 
period  or  another  the  property  in  this  cotton  passed  to  him.  Now  the 
first  question  necessary  to  ask  in  this  case  is.  When  did  the  property 
pass  to  the  plaintiff?  It  must  have  been  either  at  Pernambuco  by 
what  was  done  there,  or  at  Liverpool  by  what  was  done  there.  Did  it 
pass  to  the  plaintiff  by  what  was  done  at  Pernambuco?  There  was  an 
order  given  to  the  house  at  Pernambuco  to  buy  and  ship  cotton.  Two 
portions  of  the  cotton  were  shipped  in  the  Capella  and  the  La  Plata, 
and  a  third  portion  in  the  Olinda.  In  the  invoice  the  goods  are 
described  as  being  shipped  on  account  and  at  the  risk  of  the  plaintiff. 
But  along  with  the  invoice  a  bill  of  lading  was  taken  from  the  captain 
making  the  cotton  deliverable  not  to  the  plaintiff,  but  to  the  shipper  on 
board.  It  is  perfectly  well  settled  that  in  that  state  of  things  the  entry 
upon  the  invoice  stating  the  goods  to  be  shipped  on  account  and  at  the 
risk  of  the  consignee  is  not  conclusive,  but  may  be  overruled  by  the 
circumstance  of  the  jus  disponencU  being  reserved  by  the  shij^per 
through  the  medium  of  the  bill  of  lading. 

In  this  particular  case,  if  I  am  to  judge  by  what  is  done  at  Pernam- 
buco, I  own  I  have  not  the  slightest  doubt.  I  see  that  upon  the  two 
previous  occasions  when  the  cotton  was  shipped  by  the  Capella  and 
the  La  Plata,  the  bills  of  lading  were  taken  in  the  same  form  as  in  the 
present  case,  and  those  bills  of  lading  were  immediately  transmitted  to 
Liverpool  along  with  the  bills  of  exchange  which  were  to  be  accepted 
against  the  cotton ;  and  the  present  plaintiff,  at  the  same  time  that  he 
was  advised  of  the  shipment,  was  also  informed  that  the  bills  of  lading 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  1019 

and  the  bills  of  exchancfe  had  been  transmitted  together  to  tlie  ajrent  of 
the  ship])er  in  Liverpool.  I  do  not  believe  there  is  a  merchant  in  Eng- 
land that  would  have  had  any  doubt  that  the  meaning  of  that  was, 
You  shall  have  the  bill  of  lading  when  you  accept  the  bill  of  exchange. 
In  the  present  case  the  only  difterence  was,  that  in  the  letter  advising 
the  shipments  there  Avas  a  statement  in  the  first  instance  that  the  bill 
of  lading  of  the  cotton  shipped  in  the  Olinda  was  sent  directly  to  the 
person  to  whom  the  letter  was  written,  namely,  the  |)laintitf.  That 
has  been  very  much  relied  on  in  the  argument  on  behalf  of  the  plain- 
tiff; but  it  appears  to  me  to  make  not  for  but  against  the  ])laintiff, 
because  in  point  of  fact  the  bill  of  lading  was  not  enclosed  in  the  letter ; 
and  I  cannot  account  for  the  fact  that  it  was  not  enclosed  except  on 
this  theory,  that  when  the  letter  came  to  be  closed  those  who  were 
closing  it  took  notice  that  if  the  bill  of  lading  was  enclosed  they  would 
lose  control  over  the  property,  and  that  therefore  they  must  not  do 
that  which  in  the  first  instance,  either  carelessly  or  forgetfully,  they  had 
stated  they  would  do,  but  that  they  must  send  the  bill  of  lading  to 
their  agent  in  Liverpool,  as  they  had  done  with  the  former  bills  of  lad- 
ing. Because  if  that  had  not  been  the  case  the  mode  of  remedying  the 
omission  to  enclose  the  bill  of  lading  would  have  been  to  write  another 
letter,  stating  that  they  had  forgotten  to  enclose  the  bill  of  lading  as 
they  said  they  would  do,  and  that  they  now  enclosed  it.  Therefore, 
looking  at  what  was  done  at  Pernambuco,  it  appears  to  me  that  the 
shippers  of  the  cotton  remained  masters  of  the  property,  and  that  there 
was  no  change  of  property  whatever  made  by  what  was  done  there. 

Then  was  there  any  change  of  property  made  by  what  was  done  in 
Liverpool?  Before  answering  that  question  we  must  remember  that 
the  position  of  things  is  this,  that  when  the  cotton  arrived  at  Liver- 
pool the  property  continued  in  the  shij)pers  by  virtue  of  M'hat  Avas  done 
in  Pernambuco.  Was  that  state  of  things  changed  by  what  was  done 
in  Liverpool?  It  is  important  to  remember  the  position  of  a  mercan- 
tile house  receiving  a  bill  of  lading  and  a  bill  of  exchange  drawn 
against  the  cargo  for  the  purpose  of  obtaining  the  acceptance  of  the 
bill  of  exchange  by  the  party  upon  whom  it  is  drawn.  I  hold  it  to  be 
perfectly  clear  that,  when  a  cargo  comes  in  this  way  protected  by  a 
bill  of  lading  and  a  bill  of  exchange,  it  is  the  duty  of  those  to  whom 
the  bill  of  lading  and  the  bill  of  exchange  are  transmitted  in  a  letter 
either  "  to  (approbate)  or  to  reprobate  "  entirely  and  completely  then 
and  there.  If  they  accept  the  cargo  and  the  bill  of  lading,  and  accept 
the  bill  of  exchange  drawn  against  the  cargo,  the  object  of  those  who 
shipped  the  goods  is  obtained.  They  have  got  the  bill  of  exchange  in 
return  for  the  cargo ;  they  discount  or  use  it  as  they  think  proper ;  and 
they  are  virtually  paid  for  the  goods.  But  if,  on  the  other  hand,  the 
persons  to  Avhom  the  bill  of  lading  is  sent  do  not  refuse  in  toto  the  con- 
signment of  the  goods,  but  keep  the  bill  of  lading,  yet  do  not  accept  the 


1020  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

bill  of  exchange,  then  the  agents  of  the  foreign  shippers  have  neither 
the  goods  nor  the  money  to  deal  with.  If  they  had  repudiated  the 
transaction  in  toto,  the  agents  of  the  shippers  might  have  dealt  with 
some  other  house  and  raised  money  on  the  goods.  I  therefore  think 
that  when  one  merchant  in  this  country  sends  to  another  under  circum- 
stances like  the  present  a  bill  of  lading  and  a  bill  of  exchange,  it  is 
not  at  all  necessary  for  him  to  say  in  words :  We  require  you  to  take 
notice  that  our  object  in  enclosing  these  bills  of  lading  and  bills  of 
exchange  is  that  before  you  use  the  bills  of  lading  you  shall  accept  the 
bills  of  exchange.  Merchants  know  perfectly  well  what  they  mean 
when  they  express  themselves  not  in  the  language  of  lawyers,  but  in  the 
language  of  courteous  mercantile  communication ;  and  I  do  not  think 
that  any  merchant  in  England  receiving  a  bill  of  lading  and  a  bill  of 
exchange  under  these  circumstances,  when  he  came  to  reflect  on  the 
matter,  wovild  feel  any  doubt  that  he  could  not  retain  the  one  without 
accepting  the  other.  If  there  was  any  point  in  controversy  not  going 
to  the  repudiation  of  the  shipment,  the  course  to  be  taken  is  perfectly 
well  known ;  and  it  is  a  course  which  was  taken  by  these  plaintifts 
upon  a  former  occasion,  namely,  to  say :  We  accept  the  bill  of  lading, 
and  we  are  willing  to  accept  the  bill  of  exchange ;  but  we  tell  you 
that  in  accejjting  the  bill  of  exchange  we  assert  our  right  to  quarrel 
with  some  particular  figure  in  the  account  which  has  led  to  the  making 
of  this  bill  of  exchange.  I  say  this  without  desiring  to  suggest  that  in 
this  25articular  case,  in  the  course  taken  by  the  plaintifl',  he  was  actu- 
ated by  any  motive  which  ought  to  bring  discredit  upon  him.  I  believe 
that  he  conceived  that  he  was  right  in  the  course  he  took ;  but  in  my 
opinion  he  was  not.  I  think  the  conclusion  come  to  in  the  courts 
below  was  perfectly  right.  I  believe  that  what  was  done  in  Pernambuco 
did  not  vest  the  jiroperty  in  the  plaintiff,  and  that  what  took  place  in 
Liverpool  did  not  vest  the  property  in  him,  but  that  the  j^roperty 're- 
mained in  the  shippers ;  and  the  action  therefore  in  my  opinion  ought 
to  fail.         Judgment  of  the  Court  of  Exchequer  Chamber  affirmed} 

^  See  Merchants'  National  Bank  of  Cincinnati  v.  Bangs,  102  Mass.  291. —  Ed. 


INDEX. 


ACCEPTANCE   AND   ACTUAL   RECEIPT. 

1.  Wliatever  will  show  a  transfer  of  title  and  possession  from  seller  to  buyer  at  com- 

mon law,  will  in  general  establish  an  acceptance  and  actual  receipt  under  the 
Statute  of  Frauds. 

2.  Acceptance  is  as  distinct  from  actual  receipt  as  title  is  from  possession.     If  the 

buyer  has  accepted  the  goods,  it  generally  follows  that  he  has,  at  common  law, 
acquired  the  title  to  them  ;  hut  whether  he  has  also  acquired  possession  of  them, 
is  another  question.  So  if  he  has  actually  received  tiieiu,  it  necessarily  follows 
that  he  has  acquired  the  possession ;  but  he  may  or  may  not  have  acquired  the 
title.     Page  95.  n.  (2). 

3.  As  the  statute  only  requires  an  acceptance  and  actual  receipt  of  part  of  the  goods 

sold,  it  is  immaterial  how  small  such  part  is.  Hence,  if  the  buyer  has  received 
and  retained  a  sample  of  tlie  goods,  tlie  statute  will  be  satisfied  if  the  saiuple  was 
actually  a  part  of  the  goods  sold ;  and  not  otherwise.  Ilinde  v.  Whitehouse, 
102,  109;  Klinitz  v.  Surry,  345;  Talver  v.  West,  llC;  Gardner  v.  Grout,  237. 
In  Morton  v.  Tibbett,  195,  it  seems  that  the  statute  was  satisfied  by  an  accept- 
ance and  actual  receipt  of  the  sample.     See  §  12. 

4.  The  statute  may  be  satisfied  by  an  acceptance  and  actual  receipt  of  part,  though 

the  contract  remain  executory  as  to  the  remainder  of  the  goods.  Thompson  v. 
Maceroni,  131  (see  p.  149,  per  Parke,  B.) ;  Rohde  r.  Thwaites,  138.  And  this 
rule  applies,  though  the  remainder  of  the  goods  are  not  yet  in  existence,  but 
are  to  be  manufactured  to  order.     Scott  v.  Eastern  Counties  Railway  Co.,  164. 

Acceptance. 

5.  Acceptance,  under  the  Statute  of  Frauds,  is  in  general  equivalent  to  the  identi- 

fication of  the  goods  sold  or  agreed  to  be  sold. 

6.  Hence,  if  the  contract  be  for  specified  goods,  the  acceptance  takes  place  at  the  time 

of  the  bargain,  and  the  same  evidence  which  proves  the  bargain  will  also  prove 
an  acceptance.  Cusack  v.  Robinson,  266.  Upon  this  i)rinciple,  it  seems  there 
was  an  acceptance  in  the  following  cases  :  Chaplin  v.  Rogers,  97  ;  Anderson  v. 
Scott,  101;  Blenkinsop  v.  Clayton,  117;  Tempest  r.  Fitzgerald,  121;  Carters. 
Toussaint,  126  ;  Phillips  v.  BistoUi,  134 ;  Proctor  v.  Jones,  136 ;  Baines  v.  Jevons, 
144 ;  Dodsl^y  v.  Varley,  155 ;  Beaumont  v.  Brengeri,  185 ;  Holmes  v.  Hoskins, 
215;  Shindler  v.  Houston,  290.-  In  Saunders  ;•.  Topp,  190,  it  was  doubted 
whether  "acceptance"  could  precede  "actual  receipt;"  but  that  doubt  was 
removed  by  Cusack  i'.  Robinson,  266. 

7.  But  if  the  contract  be  for  goods  of  a  specified  kind  and  quality,  or  to  be  made  to 

order,  or  conformable  to  a  sample,  there  can  be  no  acceiitance  until  the  seller 
has  indicated  to  the  buyer  what  particular  goods  he  proposes  to  deliver  in  per- 
formance of  the  contract ;  and  the  buyer  is  then  entitled  to  a  reasonable  oppor- 


1022  INDEX. 

tunity  to  examine  the  goods  before  deciding  whether  or  not  he  will  accept  them. 
Wright  V.  Percival,  153 ;  Bill  v.  Bament,  161 ;  Hunt  v.  Hecht,  208 ;  Nicholson  v. 
Bower,  248 ;  Simraonds  v.  Humble,  272.  If  the  goods  are  to  be  made  to 
order,  very  decisive  acts  will  be  required  to  prove  an  acceptance  before  they  are 
finished  and  ready  for  delivery.     Maberley  v.  Sheppard,  142. 

8.  After  the  goods  have  been  received  by  the  buyer,  his  acceptance  of  them  may  be 

proved  by  various  circumstances,  e.cj.,  that  he  has  retained  and  used  them,  or 
neglected  to  return  them  or  to  give  notice  of  their  rejection  within  a  reasonable 
time.  Coleman  v.  Gibson,  141 ;  Bushel  v.  Wheeler,  168 ;  Farina  v.  Home,  180. 
And  qum-e  if,  upon  this  jirinciple,  an  acceptance  was  not  established  in  Nicholle 
V.  Plume,  131,  and  Norman  v.  Phillips,  171.  On  the  same  principle,  the  verdict 
seems  to  have  been  right  in  Hart  v.  Sattley,  113;  for  the  buyer  having 
"received"  the  goods  by  the  hands  of  the  carrier,  the  burden  was  upon  him 
to  show  that  he  had  not  accepted  them.     But  compare  cases  cited  in  §  13. 

9.  But  the  mere  fact  that  the  buyer  has  done  more  to  the  goods  than  was  necessary 

to  ascertain  their  quality,  will  not  necessarily  amount  to  an  acceptance  (Curtis 
V.  Pugh,  183;  per  Alderson,  B.,  147,  148) ;  nor  the  fact  of  his  having  done  some- 
thing to  the  goods  for  some  other  purpose  than  that  of  ascertaining  their  quality, 
especially  if  it  was  an  act  necessary  to  be  done  for  the  preservation  of  the  goods. 
Parker  v.  Walhs,  218. 

10.  The  buyer  may  waive  his  right  to  examine  the  quality  of  the  goods  by  not  doing 

it  at  the  time  when  he  ought  to  do  it,  if  at  all ;  and  he  will  then  be  held  to  have 
accepted  them.     Currie  v.  Andei'son,  252;  Castle  v.  Sworder,  257. 

11.  It  seems  also  that  a  buyer  may  accept  goods  upon  condition  that  they  turn  out, 

upon  examination,  to  be  in  conformity  with  the  contract ;  and  that  such  condi- 
tional acceptance  will  satisfy  the  statute.  And  of  course  it  may  be  implied  as 
well  as  express.     See  p.  278,  per  Cockburn,  C.J. 

12.  Hence,  where  A.  bought  fifty  quarters  of  wheat  by  sample,  and  on  the  following 

day  sold  it  by  the  same  sample,  without  having  examined  or  seen  the  bulk,  it 
was  held  that  such  re-sale  constituted  an  acceptance  within  the  statute,  though 
it  was  admitted  that  A.  might  still  reject  the  wheat  if  it  did  not  correspond 
with  the  sample.  Morton  v.  Tibbett,  lUS.  See  211,  per  Martin,  B. ;  256,  per 
Crompton,  J.  (But  quare  if  the  statute  was  not  satisfied  in  this  case  by  the 
acceptance  and  actual  receipt  of  the  sample.     Compare  §  3.) 

13.  And  if  the  question  were  an  open  one,  it  seems  that  the  same  principle  should 

be  applied  where  the  buyer  lias  authorized  the  seller  to  appropriate  to  the 
contract  such  goods  as  he  shall  see  fit,  provided  they  accord  with  the  terms 
of  the  contract ;  and  the  seller  has  made  an  appropriation  accordingly.  The 
seller  in  such  case  is  the  buyer's  agent  to  appropriate,  subject  to  a  cer- 
tain condition  (§§  40,  41),  and  why  should  he  not  be  treated  as  his  agent  to 
accept,  subject  to  the  same  condition  ?  But  the  authorities  seem  to  have  set- 
tled conclusively  that  there  is  no  acceptance  under  such  circumstances,  though 
it  should  appear  that  the  appropriation  was  in  entire  conformity  with  the  terms 
of  the  contract,  and  hence  that  the  title  would  have  passed  at  common  law. 
Kent  V.  Huskinson,  99;  Hart  v.  Sattley,  113;  Howe  v.  Palmer,  118;  Hanson 
V.  Armitage,  125;  Acebal  v.  Levy,  399,  404;  Meredith  v.  Meigh,  203;  Hart  v. 
Bush,  239;  Coombs  v.  Bristol  and  Exeter  Railway  Co.,  242;  Rodgers  v.  Phil- 
lips, 316. 

Actual  Receipt. 

14.  "Actual  receipt"  implies  such  a  transfer  of  possession  from  the  seller  to  the 

buyer  that  the  former  can  no  longer  retain  a  lien  for  the  purchase-money. 
Page  63,  per  Parke,  J. 

15.  The  ordinary  mode  of  effecting  such  a  transfer  of  possession  is  by  the  actual 

removal  of  the  goods  themselves ;  for  want  of  which  there  was  no  actual  receipt 


INDEX. 


1023 


in  the  followinjr  cases  :  Anderson  v.  Scott,  101 ;  Hodgson  v.  Le  Bret,  110 ;  Howe 
V.  Palmer,  118;  Tempest  v.  Fitzgerald,  121 ;  Proctor  v.  Jones,  136;  Maberley 
V.  Sheppard,  142;  Smitli  v.  Sunnan,  54,  59,  63.  In  Chaplin  v.  Rogers,  'J?,  it 
seems  that  the  removal  of  a  part  of  the  hay  by  the  suh-vendce  was  imputable 
to  the  first  vendor,  and  thus  the  statute  was  satisfied.  But  the  removal  of  the 
goods  is  not  alone  sufficient  to  change  the  possession  of  them  ;  it  must  be  done 
with  the  intention  of  transferring  the  possession  absolutely  to  the  buyer  as 
owner.  Phillips  v.  Bistolli,  134 ;  Dodsley  v.  Varley,  155.  This  last  case  and 
Wright  V.  Percival,  158,  so  far  as  they  hold  that  there  may  be  an  actual 
receFpt  without  the  vendor's  losing  his  lien  for  the  price,  must  be  regarded  as 
overruled. 

16.  But  there  are  cases  in  which  the  possession  of  goods  may  be  effectually  changed 

by  the  mere  agreement  and  intention  of  the  parties. 

17.  Thus,  if  the  goods  are  in  the  custody  of  a  third  person  as  bailee  of  the  seller,  the 

possession  is  changed  as  soon  as  such  custodian,  with  the  authority  and  consent 
of  the  seller,  becomes  the  bailee  of  the  buyer.  Page  'Jo,  n .  ( 2) ;  Searle  v.  Keeves, 
95;  Simmonds  v.  HumT)le,  272.  But  an  order  from  the  seller  to  his  bailee, 
directing  him  to  hold  the  goods  for  the  buyer,  will  not  effect  a  change  of  pos- 
session,'iintil  the  bailee  assents  to  the  order  and  "attorns"  to  the  buyer. 
Bentall  r.  Burn,  132.  See  Boardman  v.  Spooner,  610,  612-13.  And  where  the 
seller  indorsed  and  delivered  to  the  buyer  a  document  by  which  the  bailee  of 
tiie  goods  agreed  to  deliver  them  to  the  seller  or  his  indorsee,  it  was  held  in 
England  that  there  was  no  actual  receipt  by  the  buyer  until  the  bailee 
"attorned"  to  him.  Farina  v.  Home,  180.  But  it  is  believed  that  this  deci- 
sion would  not  be  followed  in  this  country.     See  Benjamin  on  Sale,  615-16. 

18.  So  if  the  goods,  at  tlie  time  of  the  bargain,  are  in  the  custody  of  the  buyer  as 

bailee  of  the  seller,  the  possession  is  changed  from  the  moment  when  the  buyer, 
■with  tlie  consent  of  the  seller,  ceases  to  hold  them  as  bailee,  and  begins  to  hold 
them  as  owner.  Edan  v.  Dudfield,  157.  In  Lilly  white  v.  Devereux,  175,  there 
was  held  to  be  no  evidence  that  the  buyer  had  ceased  to  hold  the  goods  as 
bailee  of  the  seller;  and  in  Taylor  v.  Wakefield,  234,  the  character  in  which 
the  buyer  held  the  goods  was  not  changed  until  the  seller  had  declared  his 
intention  not  to  perform  the  contract. 

19.  So,  though  the  goods  be  in  the  possession  of  the  seller  at  the  time  of  the  bargain, 

the  possession  may  be  changed  by  his  becoming  bailee  of  the  buyer,  and  hold- 
ing the  goods  in  that  character.  Page  95,  n.  (2) ;  Elmore  v.  Stone,  111 ;  Beau- 
mont V.  Brengeri,  185 ;  Marvin  v.  Wallis,  228 ;  Castle  v.  Sworder,  257.  But  as 
the  effect  of  such  change  in  the  character  in  which  the  seller  holds  the  goods, 
is  to  deprive  him  of  his  lien  for  the  price,  very  clear  evidence  should  be  required 
that  such  was  his  intention.  Page  95,  n.  (2) ;  Howe  v.  Palmer,  118;  Tempest 
r.  Fitzgerald,  121;  Carter  v.  Tousaint,  126;  Bill  v.  Bament,  161;  Holmes  w. 
Hoskins,  215.  In  Blenkinsop  v.  Clayton,  117,  there  seems  to  have  been  no 
sufficient  evidence  of  such  intention.  Page  118,  n.  (4).  The  same  would  be 
true  of  Chaplin  v.  Rogers,  97,  but  for  the  removal  of  part  of  the  hay  by  the 
sub-vendee.  So  in  Vhicent  v.  Germond,  284  (see  p.  301),  there  seems  to  have 
been  no  sufficient  evidence  of  a  change  of  possession  until  the  removal  of  the 
cattle  by  the  buyer.     But  compare  Wright  v.  Percival,  153. 

20.  So  if  the  goods,  at  the  time  of  the  bargain,  are  on  the  land  of  a  third  person  (such 

person  not  having  the  custody  of  them  as  bailee),  or  are  in  some  public  place 
to  which  buyer  s^nd  seller  have  equal  right  of  access,  it  seems  that  the  posses- 
sion, as  well  as  the  title,  may  be  transferred  by  the  mere  agreement  of  the 
parties  to  that  effect.  Tansley  v.  Turner,  2  Bing.  N.  C.  151 ;  Cooper  i-.  Bill, 
3  H.  &  C.  722.  And  qwire  if  this  principle  ought  not  to  have  been  applied  in 
Shindler  v.  Houston,  290,  and  in  Simmons  v.  Swift,  659. 

21.  When  the  buyer  and  seller  reside  in  different  places,  and  tlie  seller  is  to  send  or 


1024  INDEX. 

forward  the  goods  to  the  buyer,  the  time  when  the  possession  is  changed  gen- 
erally depends  upon  who  is  to  pay  the  expense  of  the  transportation.  In  the 
absence  of  any  special  agreement  on  the  subject,  this  falls  upon  the  buyer,  and 
the  seller,  in  sending  or  forwarding  the  goods,  acts  as  his  agent ;  and  in  that 
case  the  possession  is  changed  as  soon  as  the  goods  go  into  the  hands  of  the 
carrier  or  other  middle-man.  §  41.  To  this  principle  the  following  cases  are  to 
be  referred  :  Kent  v.  Huskinson,  99  ;  Hart  v.  Sattley,  113  ;  Hanson  v.  Armitage, 
125;  Nicholle  v.  Plume,  131 ;  Meredith  v.  Meigh,  203  (see  279,  per  Blackburn, 
J.);  Hart  v.  Bush,  239;  Coombs  v.  Bristol  and  Exeter  Railway  Co.,  242; 
Currie  v.  Anderson,  252 ;  Cusack  v.  Robinson,  266 ;  Rodgers  v.  Phillips,  316. 
But  if  by  the  agreement  the  goods  are  to  be  delivered  by  the  seller  at  a  specified 
place,  there  will  be  no  change  of  possession  nor  any  actual  receipt  until  the 
goods  arrive  at  the  place  specified.  Astey  v.  Emery,  114 ;  Hunt  v.  Hecht,  208 ; 
Nicholson  v.  Bower,  248 ;  Smith  v.  Hudson,  275.  And  even  when  the  goods 
are  to  be  forwarded  by  the  seller  at  the  buyer's  expense,  the  former  may  retain 
the  possession  by  reserving  to  himself  the  jus  dispoiwndi,  as  by  taking  from  the 
carrier  a  bill  of  lading  or  other  document  by  which  the  goods  are  deliverable 
to  the  seller  or  his  order,  or  to  some  specified  agent  of  the  seller.  Frostburg 
Mining  Co.  v.  New-England  Glass  Co.,  304.  And  it  seems  the  effect  will  be 
the  same  if  the  carrier  agrees  with  the  seller  not  to  deliver  the  goods  to  the 
buyer,  except  upon  payment  of  the  price,  as  in  the  common  case  of  goods 
marked  C.  0.  D. 

See  Statute  of  Frauds. 

APPROPRIATION. 
See  Executory  and  Executed  Sales,  §§  40-50. 

AUCTION. 

22.  Sales  at  auction  are  within  the  Statute  of  Frauds.     Hinde  v.  Whitehouse,  102, 

108,  110,  and  Ken  worthy  v.  Scofleld,  373,  overruling  Simon  v.  Metivier,  387. 

BILLS   OF  PARCELS. 
See  Memorandum  in  Writing,  §§  95,  96. 

BOUGHT  AND    SOLD   NOTES. 
See  Memorandum  in  Writing,  §§  87-94. 

BROKERS. 
See  Memorandum  in  Writing,  §§  60,  79-94. 

BROKERS'   BOOKS. 
See  Memorandum  in  Writing,  §§  79-86. 

CHOSES   IN  ACTION. 
See  Goods,  Wares,  and  Merchandises,  §§  55,  56. 

EMBLEMENTS. 
See  Goods,  Wares,  and  Merchandises,  §§  51-54. 

ENTIRETY   OF   CONTRACT. 

23.  If  a  person  goes  into  a  shop  and  bargains  for  several  articles  in  succession,  a 

separate  price  being  agreed  on  for  eacli  article,  the  transaction  will  constitute 
but  one  contract ;  and  if  the  aggregate  price  of  all  the  articles  exceeds  10/., 
the  Statute  of  Frauds  will  apply,  though  the  price  of  each  single  article  be 
less  tiian  10/.     Baldey  v.  Parker,  85. 

24.  The  same  rule  applies  where  a  commercial  traveller  takes   an  order  from  a 

customer  for  several  articles,  a  separate  price  being  agreed  on  for  each  article 


INDEX. 


1025 


(Elliott  V.  Thomas,  145);  nor  is  it  material  that  some  of  the  articles  are 
already  made,  while  others  are  to  be  made  to  order.  Scott  v.  Eastern  Coun- 
ties Railway  Co.,  164.  See  Sari  v.  Bourdillon,  472-73  ;  Bailey  r.  Sweeting,  480. 
Alitfr,  seiiible,  where  a  traveller  takes  an  order  for  one  article  which  he  agrees  to 
furnish  at  a  price  named,  and  at  the  same  time  receives  an  offer  for  another 
article,  reserving  to  his  principal  the  right  of  accepting  or  rejecting  it.  Price 
V.  Lea,  12y. 

25.  So  where  buyer  and  seller  went  together  to  several  places  in  succession,  bargain- 

ing for  timber,  and  when  they  came  to  the  last  place  the  seller,  at  the  buyer's 
request,  made  out  and  delivered  to  I  he  latter  a  memorandum  of  all  the  pur- 
chases, it  was  held  that  there  was  but  one  contract.     Bigg  v.  Whisking,  212. 

26.  But  where  goods  are  sold  at  auction  in  lots,  there  is  a  separate  contract  for  each 

lot  as  it  is  struck  off,  though  the  same  person  bjd  off  several  successive  lots. 
Page  289,  n.  (1).     Contra,  Mills  v.  Hunt,  285. 

EXECUTORY   SALES. 

27.  Are  within  the  Statute  of  Frauds.     Rondeau  i-.  Wyatt,  3 ;  Cooper  v.  Elston,  6  ; 

Bennett  v.  Hull,  31  (overruling  Towers  v.  Osborne,  1,  and  Clayton  v.  Andrews, 
2,  so  far  as  the  latter  involve  a  contrary  doctrine).  Although  the  seller  is  to  do 
something  further  to  the  goods,  e.g.,  to  dehver  tliem  at  a  specified  place.  Astey 
V.  Emery,  114.  And  though  the  goods  be  incapable  of  delivery  when  the  con- 
tract is  made,  e.f/.,  flour  which  is  not  yet  ground,  or  wheat  which  is  not  yet 
thraslied,  or  timijcr  which  is  to  be  cut  from  standing  trees.  Garbutt  r.  Wat- 
son, 10  (overruling  Clayton  v.  Andrews,  2) ;  Smith  v.  Surman,  54 ;  Downs  v. 
Ross,  34.  (But  in  Maryland,  Clayton  v.  Andrews  is  followed.  Eichelberger  v. 
M'Cauley,  3'J.)  And  even  though  the  goods  be  not  in  existence  at  the  time  of 
the  contract,  but  are  to  be  made  to  order.  Lord  Tenterden's  Act,  9  Geo.  IV. 
c.  14,  §  7.  15,  n.  (1).  Hence,  Towers  v.  Osborne,  1,  and  Groves  v.  Buck,  9,  are 
no  longer  law  in  England.  And,  semble,  Lord  Tenterden's  Act  is  to  be  deemed 
merely  declaratory  of  the  true  construction  of  the  17th  section  of  the  Statute 
of  Frauds  ;  for  a  contract  for  the  sale  of  a  crop  of  turnip  seed,  for  which  the  seed 
was  not  yet  sewn,  was  held  to  be  within  the  latter  act.  Watts  v.  Friend,  63. 
And  see,  to  the  same  effect,  per  Littledale,  J.,  p.  61-62. 

28.  In  Massachusetts  and  some  other  States,  it  is   held   (in  accordance  with  the 

dictum  of  Abbott,  C.  J.,  in  Garbutt  v.  Watson,  10,  11)  that  a  contract  for  the 
sale  of  articles  to  be  afterwards  made,  is  within  the  Statute  of  Frauds,  if  they 
are  to  be  made  in  the  ortUuary  course  of  the  seller's  business  ;  otherwise  if 
they  are  to  be  made  strictly  to  order.  Mixer  v.  Howarth,  25  ;  Spencer  v.  Cone, 
28  ;  Gardner  i'.  Joy,  29  ;  cases  cited  in  note  (1),  p.  31. 

29.  In  New  York  it  has  been  held  that  contracts  for  the  sale  of  articles  to  be  after- 

wards made  are  not  witliin  the  statute,  whether  they  are  to  be  made  to  order 
or  not.     Crookshank  i-.  Burrell,  32,  and  Sewall  v.  Fitch,  33,  following  Towers 
V.  Osborne,  1,  and  Groves  v.  Buck,  9. 
See  Executory  and  Executed   Sales  ;    Goods,  Wares,  and  Merchandises  ; 

Work,  Labor,  and  Materials. 

EXECUTORY  AND  EXECUTED   SALES. 
When  the  goods  are  specijied  at  the  time  of  the  bargain. 

30.  According  to  the  modern  English  doctrine,  neither  delivery  nor  payment  of  the 

purchase-money  is  generally  requisite  for  vesting  the  title  to  goods  in  the  buyer 
under  a  contract  of  sale.  Per  Williams,  J.,  827  ;  Tarling  v.  Baxter,  621 ;  per 
Bayley,  J.,  662;  per  Ilolroyd,  J.,  663. 

31.  Such  was  always  the  rule  of  the  common  law  in  regard  to  delivery;  but  it  was 

formerly  held  that  payment  of  the  price  was  presumptively  a  condition  pre- 
cedent to  the  vesting  of  the  title  in  the  buyer,  unless  the  sale  was  upon  credit, 


1026  INDEX. 

i.e.,  unless  by  the  contract  the  buyer  was  entitled  to  the  possession  of  the 
goods  before  paying  for  them.  Blackburn  on  Sale,  147-49.  It  was  chiefly 
upon  this  ground  that  Hanson  v.  Meyer,  639,  was  decided ;  and  such  is  under- 
stood to  be  still  the  settled  law  of  Massachusetts  (Tyler  i'.  Freeman,  712  ; 
Coggill  V.  The  H.  &  N.  H.  R.  R.  Co.,  713  ;  Whitney  vJ  Eaton,  717 ;  Farlow  v. 
Ellis,  720) ;  and,  semble,  of  New  York  (per  Savage,  C.  J.,  704-5  ;  Smith  v. 
Lynes,  724 ;  Wait  v.  Green,  728 ;  Ballard  v.  Burgett,  730) ;  and  when  goods 
are  to  be  paid  for  on  delivery  by  a  bill  or  note  on  time,  the  giving  of  the  bill 
or  note  is  as  much  a  condition  to  the  vesting  of  the  title  as  the  payment  of  the 
price  in  money  when  the  sale  is  for  cash  on  deUvery.  Cases  supra,.  Even  in 
England  the  old  rule  still  prevails  in  certain  classes  of  transactions,  as  when  a 
shopkeeper  sells  goods  over  the  counter  for  cash.     Bussey  v.  Barnett,  711. 

32.  When  goods,  which  by  the  contract  are  to  be  paid  for  on  delivery,  are  delivered 

without  payment,  the  presumption  will  be  either  that  the  sale  was  not 
originally  conditional  or  that  the  condition  has  been  waived  (Farlow  v.  Ellis, 
720,  723  ;  per  Savage,  C.J.,  704-5 ;  Smith  v.  Lynes,  724) ;  but  such  presump- 
tion may  be  rebutted  by  evidence,  and  in  that  view  the  conduct  of  the  parties 
subsequent  to  the  delivery  may  be  of  great  importance.  Bishop  v.  Shillito, 
710  ;  Bussey  v.  Barnett,  711 ;  Tyler  v.  Freeman,  712  ;  Whitney  v.  Eaton,  717  ; 
Farlow  v.  Ellis,  720.  The  purposes  for  which  a  delivery  is  made,  ought  also 
to  have  an  important  bearing  upon  the  question  of  waiver.  Thus,  if  goods  are 
bought  for  consumption  or  sale,  a  delivery  pursuant  to  the  contract  is  incon- 
sistent with  the  seller's  retaining  the  title  ;  and  if  the  seller  has  reason  to  suppose 
that  the  buyer  intends  to  use  the  goods  as  a  means  of  raising  money  to  pay  for 
them,  the  delivery  ought  clearl}^  to  be  held  absolute.  On  the  other  hand,  if 
the  goods  are  to  be  weighed  or  measured  in  order  to  ascertain  the  price,  and 
this  is  to  be  done  by  the  buyer,  a  delivery  to  him  for  that  purpose  alone  will 
have  no  tendency  to  prove  either  that  the  sale  was  not  originally  conditional 
or  that  the  condition  has  been  waived.  Per  Savage,  C.J.,  704-5  ;  Whitney 
V.  Eaton,  717,  719.  And  if  the  object  of  the  imrchase  be  such  that  a  lease  or 
bailment  would  substantially  accomplish  it,  a  delivery  of  the  goods  to  the 
buyer  may  be  perfectly  consistent  with  the  seller's  retaining  the  title.  Such 
appears  to  have  been  the  case  in  Wait  v.  Green,  728,  and  Ballard  v.  Burgett, 
730.  These  distinctions  seem  not  to  have  been  sufficiently  borne  in  mind  in 
some  of  the  Massachusetts  cases.  See  Coggill  v.  H.  &  N.  H.  R.  R.  Co.,  713, 
and  Farlow  v.  Ellis,  720.  In  neither  of  these  cases  is  there  much  reason  to 
believe  that  the  delivery  would  ever  have  been  claimed  to  be  conditional,  had 
not  the  buyer  become  insolvent.  In  Ward  v.  Shaw,  703,  the  terms  of  the 
contract  seem  to  make  it  very  clear  that  payment  of  the  price  was  not  a  con- 
dition to  the  passing  of  the  title  ;  but  assuming  that  there  was  a  condition,  it 
was  very  properly  held  that  the  delivery  was  no  waiver  of  it. 

33.  If  the  sale  and  delivery  of  goods  be  conditional  upon  the  payment  of  the  price, 

a  bond  fide  purchaser  from  the  first  vendee  will  acquire  no  title  to  them. 
Coggill  V.  H.  &  N.  H.  R.  R.  Co.,  713 ;  Ballard  v.  Burgett,  730,  overruling 
Smith  V.  Lynes,  724,  and  Wait  v.  Green,  728. 

34.  So  long  as  something  remains  to  be  done  to  the  goods  by  the  seller  before  the 

buyer  is  entitled  to  the  possession  of  them,  or  before  he  is  bound  to  receive 
them  in  performa:^.ce  of  the  contract,  the  presumption  is  that  the  title  remains 
in  the  seller.  Hanson  v.  Meyer,  639  (compare  §  31);  Rugg  v.  Minett,  647; 
Wallace  i\  Breeds,  739;  Zagury  v.  Fiirnell,  652;  Withers  v.  Lyss,  654;  Busk  v. 
Davis,  747  ;  Shepley  v.  Davis,  752 ;  Laidler  v.  Burlinson,  664 ;  Acraman  v. 
Morrice,  676.  In  Hinde  v.  Whitehouse,  102,  109-10,  this  rule  was  held  not  to 
apply. 
85.  But  the  mere  fact  that  the  contract  requires  something  to  be  done  to  the  goods 
ajter  delivery  to  the  buyer,  or  that  the  buyer  is  entitled  to  do  something  to 


INDEX. 


1027 


them  after  delivery  and  before  payment,  will  not  prevent  the  title  from  vesting 
in  the  buyer  at  the  time  of  the  contract.  Gilmour  v.  Supple,  024  ;  Swanwick 
V.  Sotlieru,  G73  ;  Turley  v.  Bates,  692.  And  even  where  the  contract  requires 
some  furtiier  act  to  be  done  to  the  goods  before  delivery,  the  doing  of  such 
act  may  of  course  be  waived  by  tlie  parties  ;  and  it  seems  that  a  delivery  and 
receipt  of  the  goods  witliout  requiring  tlie  act  to  be  done,  will  ordinarily  ope- 
rate as  such  waiver,  and  vest  tlie  title  immediately  in  the  buyer.  Olyphant  v. 
Baker,  035,  638-39  ;  Swanwick  v.  Sothern,  673.  And  tlie  English  courts  seem 
now  inclined  to  hold  (contrary  to  several  cases  cited  in  §  34)  that  the  mere  fact 
that  goods  require  to  be  weighed  or  measured  in  order  to  ascertain  the  price, 
and  tliat  the  seller  is  entitled  to  have  this  done  before  delivery,  will  not  prevent 
the  title  from  passing  at  the  time  of  the  bargain.  Kersliaw  v.  Ogden,  700.  In 
Ward  V.  Shaw,  703,  where  two  fat  oxen  were  sold  to  a  butcher  at  a  price  to  be 
ascertained  by  the  weight  of  their  quarters  when  killed  and  dressed,  it  was 
held  that  the  title  remained  in  the  seller  even  after  delivery  to  the  butcher, 
partly  because  something  remained  to  be  done  under  the  contract,  and  partly 
because  payment  of  the  price  was  a  condition  precedent ;  but  (jiuere  if  the 
decision  can  be  sustained  on  either  ground.  Compare  §  32.  In  Simmons 
V.  Swift,  659,  it  was  held  that  "  weighing  "  was  a  condition  precedent  to  the 
passing  of  the  title ;  yet  it  is  doubtful  whether  the  seller  had  any  interest  in 
having  the  goods  weighed  (Swanwick  v.  Sothern,  673),  and  also  whether  the 
condition  had  not  been  waived  by  deUvery.     See  §  20. 

36.  In  some  cases  title  has  been  held  to  pass  by  estoppel.     Thus,  where  the  seller  of 

specific  goods  gives  the  buyer  an  order  for  them  on  a  bailee,  who  accepts 
the  order  and  "  attorns  "  to  the  buyer,  the  latter  will  become  owner  of  the 
goods  as  against  the  bailee,  who  will  be  thereafter  estopped  from  denying  that 
he  has  in  his  custody  such  goods  as  the  order  calls  for,  or  that  the  title  to  them 
has  vested  in  tlic  buyer.  Stonard  v.  Duukin,  653 ;  Ilawes  v.  Watson,  656 ; 
Gillett  V.  Hill,  755. 

37.  When  goods  are  to  be  paid  for  before  delivery,  that  feet  may  have  an  important 

bearing  upon  the  question  whether  tl'.e  title  has  passed.  Thus,  if  by  the  con- 
tract goods  are  to  be  delivered  at  the  buyer's  place  of  business,  or  at  any  other 
place  than  where  they  are  at  the  time  of  the  contract,  and  are  to  be  paid  for 
on  delivery,  it  seems  that  the  title  will  not  generally  pass  until  delivery  at  the 
place  specified  (Gilmour  v.  Supple,  624,  is  an  example  of  this)  ;  but  if  in  such 
case  the  price  is  to  be  paid  and  is  paid  at  the  time  of  the  bargain,  it  seems  that 
the  title  will  pass  at  once.  Terry  v.  Wheeler,  706,  709.  In  Logan  v.  Le 
Mesurier,  681,  the  timber  was  by  the  contract  to  be  paid  for,  and  was  paid  for 
immediately,  while  the  delivery  was  postponed  for  nearly  six  months ;  yet  it 
was  held  (ferroneously,  semble)  that,  because  the  timber  was  to  be  measured  at 
the  time  of  delivery,  the  title  remained  in  the  seller  in  the  mean  time.  For 
cases  in  which  the  contract  remained  executory,  notwithstanding  the  price 
was  paid,  see  Acraman  v.  Morrice,  676-;  Laidler  v.  Burlinson,  664. 

WJien  the  goods  are  not  specified  at  the  time  of  the  bargain 

38.  Every  contract  of  sale  must  of  necessity  remain  executory  so  long  as  the  goods 

are  not  specified.  Wallace  v.  Breeds,  739  (though  the  decision  was  put  chiefly 
on  another  ground.  See  §  34)  ;  Austen  v.  Craven,  741 ;  White  v.  Wilks, 
744 ;  Busk  v.  Davis,  747  ;  Shepley  v.  Davis,  752 ;  Scudder  v.  Worster,  783. 

39.  There  are  certain  apparent  exceptions  to  the  foregoing  rule,  but  they  are  more 

apparent  than  real.  Thus,  if  an  undivided  part  of  a  specified  bidk  of  goods 
be  the  subject  of  a  sale,  the  buyer  may  become  quasi  tenant  in  common  with 
the  seller  of  the  entire  bulk,  if  such  be  the  intention  of  the  parties ;  and  in 
that  case  of  course  no  separation  is  necessary  to  vest  the  title  in  the  buyer. 


1028  TNDEX. 

Kimberly  v.  Patchin,  775.  Gushing  v.  Breed,  788,  was  decided  on  this  ground ; 
but  having  regard  to  the  usage  proved  in  that  case,  it  may  be  doubted 
whether  the  seller  was  owner  of  the  grain,  a  part  of  which  he  undertook  to 
sell ;  i.e.,  whether  he  had  not  transferred  his  title  to  the  warehouseman,  receiv- 
ing in  exchange  a  claim  against  the  latter  ex  contractu  for  an  equal  amount  of 
grain  of  like  quality.  Assuming,  however,  that  such  was  the  effect  of  the 
usage,  it  would  seem  to  follow  from  the  same  usage  that  the  plaintiff  had  fully 
performed  his  contract,  and  so  was  entitled  to  recover  the  price  (compare 
the  usage  stated  at  p.  753).  Quacunque  via  data,  therefore,  the  decision  was 
correct.  In  two  recent  English  decisions,  the  principle  of  estoppel,  which  had 
been  previously  apijlied  to  the  case  of  specified  goods  (§  36),  was  extended 
to  the  case  of  goods  not  specified  ;  it  being  held  that,  when  a  warehouseman 
has  accepted  an  order  calling  for  goods  of  a  given  quantity  and  quality,  he 
will  be  estopped  from  saying  that  he  has  no  such  goods  in  his  custody  belong- 
ing to  the  holder  of  the  order,  and  will  be  liable  to  an  action  of  trover  at  the 
suit  of  the  latter,  if  he*refuses  to  comply  with  the  terms  of  the  order.  Wood- 
ley  V.  Coventry,  760 ;  Knights  v.  Wiffen,  766.  But  there  seems  to  be  great 
difficulty  in  supporting  these  cases  upon  principle.  Regard  being  had  to  the 
usage  proved  in  the  former  case,  the  courts  seem  not  to  have  interpreted  the 
transaction  correctly.  An  estoppel  can  only  be  as  to  facts,  and  the  defendants 
in  these  cases  do  not  appear  to  have  stated  any  facts,  but  simply  to  have 
promised  to  comply  with  the  terms  of  the  orders.  If  the  orders  had  asserted 
any  facts,  the  answers  given  by  the  defendants  would  have  admitted  them  ; 
but  as  the  orders  simply  directed  the  defendants  to  do  something,  the  true  im- 
port of  their  answers  seems  to  have  been  that  they  would  do  as  directed.  (Com- 
pare remark  of  Gibbs,  J.,  p.  743).  It  seems  that  the  plaintiff's  remedy,  if  any 
(leaving  out  of  view  the  theory  of  a  tenancy  in  common),  was  by  an  action 
ex  contractu  on  the  acceptance  of  the  order,  treating  it  as  analogous  to  the 
acceptance  of  a  bill  of  exchange.  See  the  argument  of  Mr.  Watkin  Williams, 
pp.  762-64.  In  Scudder  i'.  Worster,  783,  788,  the  court  held  that  the  plaintiff 
could  iiot  invoke  the  doctrine  of  estoppel  in  support  of  an  action  of  replevin. 
It  is  not  clear  upon  what  ground  Whitehouse  v.  Frost,  734,  was  decided.  As 
the  action  was  trover,  it  seems  impossible  to  sustain  the  decision  except  upon 
the  ground  of  estoppel  or  tenancy  in  common  (see  p.  751,  per  Le  Blanc  and 
Bayley,  JJ. ;  Blackburn  on  Sale,  125-26) ;  but  qimre  if  the  plaintiffs  had  not 
a  clear  remedy  ex  contractu  as  assignees  of  J.  &  L.  Frost,  and  in  their  names, 
against  Dutton  &  Bancroft,  the  latter  having  no  defence  as  against  the  Frosts. 
See  p.  764. 

40.  Subject  to  the  foregoing  exceptions,  when  the  goods  are  not  specified  by  the  con- 

tract, the  title  can  only  pass  by  means  of  a  subsequent  appropriation  ;  and  this 
can  only  take  place  by  the  concurrent  acts  of  buyer  and  seller  (Godts  v.  Rose, 
970;  Campbell  v.  The  Mersey  Docks  and  Harbor  Board,  873),  unless  one  of 
them  has  authorized  the  other  to  act  on  behalf  of  both.  Such  authority  is  gen- 
erally conferred  by  implication  merely,  and  most  commonly  upon  the  seller  ; 
and  the  ground  of  the  implication  generally  is  that  the  seller  is  required  or 
authorized  by  the  contract  to  do  something  to  or  with  the  goods  on  behalf  of 
the  buyer,  which  he  cannot  do  until  tliey  are  specified. 

41.  Thus,  if  buyer  and  seller  reside  at  a  distance  from  each  other,  and  the  seller  is  to 

send  the  goods  to  the  buyer  at  the  expense  of  the  latter,  the  appropriation  will 
generally  be  complete  and  the  title  will  pass  as  soon  as  the  goods  are  forwarded. 
§§  13,  21 ;  Fragano  v.  Long,  798 ;  Alexander  v.  Gardner,  810  (where  it  seems  the 
title  passed  wlien  the  goods  were  shipped).  But  fortius  purpose  the  goods  sent 
must  conform  to  the  terms  of  the  contract  or  order  (per  Parke,  B.,  945)  ;  there- 
fore, where  ten  hogsheads  of  claret  were  ordered,  and  fifteen  hogsheads  were 


INDEX. 


1029 


sent,  it  was  held  that  there  was  no  appropriation.  Cunliffe  v.  Harrison,  844. 
So  where  two  hundred  and  fifty  barrels  of  cement  were  ordered,  and  two  hun- 
dred and  sixty  barrels  were  sent.     Downer  v.  Tliompson,  803. 

42.  Under  some  circumstances,  tlie  appropriation  will  be  complete  before  the  goods 

are  forwarded.  Thus,  where  the  contract  was  for  one  liundred  quarters  of 
barley,  which  was  to  be  forwarded  by  the  seller  to  the  buyer  in  sacks  furnished 
by  tlie  latter,  it  was  held  tiiat  the  appropriation  was  complete  the  moment  the 
barley  was  put  into  the  sacks.  Aldridge  v.  Johnson,  85'J.  So  where  the  con- 
tract was  for  oil  of  peppermint,  which  was  to  be  forwarded  by  the  seller  to  the 
buyer  in  bottles  furnished  by  the  latter,  it  was  held  that  the  appropriation 
was  complete  as  soon  as  the  oil  was  put  into  the  bottles.  Langton  v.  Higgins, 
8G7. 

43.  Anotlier  common  instance  of  appropriation  by  the  act  of  the  seller  alone,  is 

where  by  the  contract  he  is  to  incorporate  his  own  property  with  that  of  the 
buyer ;  as  where  a  builder  contracts  to  build  a  house  on  the  land  of  another 
with  his  own  materials,  or  where  one  contracts  to  repair  or  complete,  with  his 
own  materials,  a  chattel  belonging  to  another.  In  all  such  cases,  as  soon  as 
the  contractor  incorporates  his  own  materials  with  the  property  of  his  em- 
ployer, the  title  to  them  passes  to  the  latter ;  but  not  until  such  incorporation 
takes  place.  Therefore,  where  a  builder  had  provided  window-frames  for  a 
hotel  which  he  was  building  for  the  defendants,  but  liad  not  put  them  in,  it  was 
held  that  the  title  to  them  had  not  passed  to  the  defendants,  though  tiiey  had 
been  approved  by  their  superintendent.  Tripp  v.  Armitage,  8'29.  So  where 
a  ship-builder  became  bankrupt  while  constructing  a  steam-vessel  for  the 
plaintiif  under  a  contract,  though  it  was  held  that  the  unfinished  vessel  had 
become  the  property  of  the  plaintiff,  it  was  also  held  that  the  title  to  all 
materials  and  structures  which  had  not  been  fixed  to  the  vessel,  remained  in 
1^6  bankrupt.  Wood  v.  Bell,  847,  858.  So  where  a  builder  had  constructed 
columns  for  a  house  which  lie  was  building  for  the  plaintiff,  but  had  not  put 
them  up,  it  was  held  that  the  title  to  them  had  not  passed  to  the  plaintiflf. 
Johnson  v.  Hunt,  885.  The  decision  in  Woods  v.  Russell,  794,  797,  seems  to 
have  been  clearly  erroneous  so  far  as  the  rudder  and  cordage  were  concerned. 
See  pp.  857-858. 

44.  Crofoot  V.  Bennett,  772,  is  an  instance  where  the  right  to  make  the  appropriation 

was  conferred  on  the  buyer. 

45.  When  neither  the  buyer  nor  the  seller  has  authorized  the  other  to  make  an 

appropriation,  it  can  only  be  made  by  the  concurrence  of  both.  Thus,  in  the 
common  case  of  a  chattel  made  to  order,  the  maker  finding  the  materials, 
unless  the  maker  is  authorized  or  required  to  do  something  to  or  with  the 
chattel  aj}er  it  is  completed,  the  title  will  not  pass  until  it  is  accepted  by  the 
buyer.  In  making  the  chatt<?l,  the  seller  is  not  acting  on  behalf  of  the  buyer, 
but  on  his  own  behalf.  Mucklow  i'.  Mangles,  792;  Atkinson  v.  Bell,  801  (but 
qucere  if  the  goods  were  not  here  accepted  by  Kay  as  the  authorized  agent  of 
the  buyer) ;  Moody  v.  Brown,  909.  (Bement  v.  Smith,  889,  cannot  be  considered 
as  law.)  So  when  the  buyer  and  seller  reside  at  a  distance  from  each  other, 
the  latter  cannot  ordinarily  make  an  appropriation  by  his  own  act,  unless  he^is 
authorized  to  forward  the  goods  on  behalf  of  the  buyer.  Jenner  v.  Smith,  877. 
If  the  seller  is  to  deliver  the  goods  at  his  own  expense  at  the  buyer's  place  of 
business,  the  latter  may  reject  them  when  they  arrive,  and  no  title  will  pass. 
See  §  21.  The  effect  is  the  same  when  goods  are  sent  on  a  contract  of"  sale  or 
return,"  though  the  expense  of  the  carriage  fall  upon  the  buyer  if  the  goods  be 
accepted.     Swain  v.  Sliepherd,  805. 

46.  As  to  what  will  be  sufficient  evidence  of  appropriation  by  the  mutual  consent  of 

buyer  and  seller,  see  Elliott  v.  Pybus,  806  ;  WUkins  v.  Bromhead,  838  ;  Kohde 
V.  Thwaites,  138 ;  Young  v.  Matthews,  875. 
VOL.  I.  66 


1030  INDEX. 

47.  Although  a  contract  of  sale  must  remain  executory  until  the  goods  are  specified, 

it  does  not  follow,  e  converse,  that  it  becomes  executed  as  soon  as  a  specification 
takes  place.  As  the  contract  may  be  executory,  though  the  goods  be  specified 
by  the  contract  itself  (per  Parke,  B.,  669),  so  it  may  remain  executory  after 
the  goods  have  been  specified  by  a  subsequent  appropriation.  Per  Parke,  B., 
944,  946.  In  this  latter  sense,  there  may  have  been  an  appropriation  of  the 
window-fi-ames  in  Tripp  v.  Armitage,  829,  834,  835. 

48.  The  most  common  case  of  an  appropriation  which  does  not  pass  the  property,  is 

where  the  seller  forwards  goods  to  the  buyer  pursuant  to  an  authority  from  the 
latter,  but  retains  the  title  in  himself  as  security  for  the  payment  of  the  price. 
The  ordinary  way  of  doing  this  is  by  taking  from  the  carrier  a  bill  of  lading  or 
receipt  making  the  goods  deliverable  to  the  order  of  the  seller.     This  is  prima 
facie  evidence  that  the  seller  retains  the  title  (Brandt  v.  Bowlby,  925;  Wait 
V.  Baker,  942 ;  Jenkyns  v.  Brown,  948 ;  Turner  v.  Trustees  of  Liverpool  Docks, 
952  ;  Falke  v.  Fletcher,  990;  Shepherd  v.  Harrison,  996)  until  the  indorsement 
and  delivery  of  the  bill  of  lading  to  the  buyer  (Walley  v.  Montgomery,  911 ; 
Wilmshurst  v.  Bowker,  930 ;  Key  v.  Cotesworth,  963) ;  and  this  rule  holds, 
though  the  goods  be  shipped  on  board  tlie  buyer's  own  vessel.     Brandt  v. 
Bowlby,  925 ;  Wait  v.  Baker,  942 ;  Turner  v.  Trustees  of  Liverpool  Docks, 
952 ;  Falke  v.  Fletcher,  990.     The  case  of  Coxe  v.  Harden,  916,  in  which  the 
deUvery  of  a  bill  of  lading  unindorsed  was  held  to  pass  the  property,  is  of 
doubtful  authority.     In  Ogle  v.  Atkinson,  922,  it  was  held  that  the  title  had 
vested  in  the  plaintiff'  before  the  bill  of  lacling  was  made  out,  and  that  the  bill 
of  lading  could  not  devest  it.     In  Browne  v.  Hare,  976,  where  the  seller  had 
indorsed  the  bill  of  lading  specially  to  the  buyer,  and  sent  it  to  his  own  agent, 
and  the  goods  were  lost  before  it  was  delivered  to  the  buyer,  it  was  held  that 
the  loss  fell  on  the  buyer,  the  contract  being  that  the  seller  should  ship  the 
goods  "  free  on  board."   On  the  other  hand,  in  Moakes  v.  Nicholson,  992,  it  was 
held  that  the  title  to  the  goods  remained  in  the  seller,  though  they  were  shipped 
on  board  the  buyer's  own  chartered  vessel,  and  the  bill  of  lading  made  them 
deliverable  to  his  order  ;  the  seller  having  taken  a  set  of  three  bills  of  lading, 
only  one  of  which  was  stamped,  and  having  retained  the  latter  in  his  own 
hands,  sending  one  of  the  others  to  the  buyer.     In  several  of  the  foregoing 
cases  there  seems  to  have  been  much  reason  for  holding  that,  while  the  title 
had  vested  in  the  buyer,  the  seller  retained  the  possession  with  a  lien  for  the 
purchase-money.     See  pp.  1003-1004,  per  Cockburn,  C.J. 

49.  Although  the  most  frequent  object  of  the  seller's  retaining  the  title  in  himself 

after  the  goods  are  forwarded,  is  to  secure  the  payment  of  the  purchase- 
money,  he  may  do  it  for  any  other  object,  it  being  wholly  a  question  of 
intention  on  his  part.     Ellershaw  v.  Magniac,  835. 

50.  In  ship-building  contracts,  where  the  price  is  payable  in  instalments  at  specified 

stages  in  the  progress  of  the  work,  it  is  held  in  England  that  the  payment  of 
the  first  instalment  vests  the  title  in  so  much  of  the  vessel  as  is  then  con- 
structed in  the  buyer ;  and  that  as  new  materials  are  subsequently  added,  they 
immediately  become  the  property  of  the  buyer.    Woods  v.  Russell,  794 ;  Clarke 
V.  Spence,  816.     This  view  has  not  been  adopted  in  this  country.     On  the 
contrary,  it  has  been  uniformly  held,  so  far  as  the  question  has  come  before 
the  courts,  that  no  title  vests  in  the  buyer  until  the  vessel  is  completed.    Mer- 
ritt  V.  Johnson,  883  ;  Andrews  v.  Durant,  894  ;  Williams  v.  Jackman,  906.    In 
most  of  the  foregoing  cases  there  was  an  additional  circumstance,  namely, 
that  the  vessel  was  to  be  built  under  the  direction  and  subject  to  the  approval 
of  a  superintendent  appointed  by  the  intended  buyer  ;  and  it  is  agreed  that 
this  had  the  effect  of  appropriating  the  vessel  to  the  contract  as  fast  as  it  was 
constructed,  so  that,  as  soon  as  the  construction  of  the  vessel  was  begun, 
there  was  a  contract  for  that  specific  vessel.     See  §  47. 


INDEX.  1031 

See  Executory    Sales  ;   Goods,  Wares,  and   Merchandises  ;   "Work,  Labor, 

AND  Materials. 

FRUCTUS   INDUSTRIALES. 
See  Goods,  Wares,  and  Merchandises. 

FRUCTUS  NATURALES. 
See  Goods,  Wares,  and  Merchandises. 

GOODS,  WARES,  OR   MERCHANDISE. 

51.  Fructu)^  naturaJes  [e.rj.,  trees  or  natural  grass),  until  severed  from  the  soil,  are  an 
interest  in  land  witliin  tlie  4th  section  of  the  Statute  of  Frauds.  70,  n.  (2)  ; 
Jones  V.  Flint,  66,  69.  Anonymous,  42,  if  it  contains  a  different  doctrine,  is 
not  law. 

62.  Fructus  imlustriahs  or  emblements  [f.fj.,  potatoes,  or  turnips,  or  corn),  even  while 
attached  to  the  soil  and  in  a  growing  state,  are  chattels,  and  not  an  interest  in 
land  within  the  4th  section  of  the  Statute  of  Frauds.  Parker  v.  Staniland, 
42  ;  Warwick  v.  Bruce,  45  ;  Evans  v.  Roberts,  46  ;  Jones  v.  Flint,  66  :  Dunne 
V.  Ferguson,  73;  p.  70,  n.  (2).  Whether  they  are  goods,  wares,  or  merchan- 
dise, and  so  within  the  17th  section,  qwrre.  70,  n.  (2).  Tor  dicta  in  the  affirma- 
tive (per  Bayley  and  Littledale,  JJ.,  and  Joy,  C.B.),  see  Evans  v.  Roberts,  46, 
51,  53  ;  Dunne  v.  Ferguson,  73. 

53.  If  a  contract  for  the  sale  of  cither  f runt ns  indttstriales  or  fructus  natwales  is  execu- 

tory, and  the  title  is  not  to  pass  until  severance,  it  is  within  the  17th  section 
of  the  statute ;  for,  though  the  subject  of  the  sale  may  not  have  been  goods, 
wares,  or  merchandise  when  the  contract  was  made,  it  is  when  the  title  passes. 
Evans  v.  Roberts,  46,  48  (per  Bayley,  J.),  51-2  (per  Ilolroyd,  J.) ;  Smith  v. 
Surman,  54,  58  (per  Bayley,  J.),  60-62  (per  Littledale,  J.),  62  (per  Parke,  J.) ; 
per  Lord  Abinger,  C.B.,  63,  n.  (2)  ;  Sainsbury  i-.  Matthews,  64;  Whitmarsh  v. 
Walker,  80;  per  Rolfe,  B.,  69,  n.  (1)  ;  p.  70,  n.  (2). 

54.  And  when  the  subject  of  a  contract  of  sale  is  at  the  time  attached  to  the  soil  of 

the  vendor,  it  seems  tliat  the  title  will  not  pass  until  severance,  unless  there  is 
a  strong  indication  of  intention  to  the  contrary.  See  authorities  cited  in 
•§  53.  In  Parker  v.  Staniland,  42,  the  seller  recovered  the  price  of  potatoes 
as  bargained  and  sold,  though  tl'.ey  had  not  been  severed  ;  in  Warwick  v. 
Bruce,  45,  the  buyer  declared  as  upon  an  executory  contract,  though  a  part  of 
the  potatoes  had  been  severed  ;  in  Evans  v.  Roberts,  46,  the  seller  recovered 
the  price  of  potatoes  as  bargained  and  sold,  though  they  do  not  appear  to  have 
been  severed,  and  thougli  Ilolroyd,  J.,  bases  his  opinion  entirely  upon  the 
view  tliat  the  contract  was  executory  ;  in  Dunne  v.  Ferguson,  73,  the  buyer 
maintained  trover  for  turnips,  tliough  they  had  not  been  severed  ;  but  in  none 
of  these  cases  does  attention  appear  to  have  been  called  to  the  form  of  the 
action. 

55.  Shares  in  joint  stock  corporations  have  been  held  in  England  not  to  be  goods, 

wares,  or  merchandise  within  the  17th  section  of  tlie  Statute  of  Frauds,  such 
shares  being  mere  clioses  in  action,  incapable  of  delivery.  Humble  c.  Mitchell, 
70.  Held  otherwise  in  Massachusetts  and  some  other  States.  Tisdale  v. 
Harris,  75  ;  p.  79,  n.  (1). 

56.  In  Massachusetts,  choses  in  action  (^.7.,  promissory  notes)  are  held  to  be  goods, 

wares,  or  merchandise  within  the  meaning  of  the  statute.  Baldwin  i;. 
Williams,  82. 

INVOICES. 

See  Memorandum  in  Writing,  §§  95,  96. 


1032  INDEX. 


MEMOEANDUM  IN  WRITING. 

57.  The  Statute   of  Frauds  may.  be   satisfied  by  writing  in  two  modes  ;  by  putting 

the  contract  in  writing,  or  by  furnishing  evidence  in  writing  of  a  verbal 
contract.  Saunderson  ;;.  Jackson,  340,  341,  per  Lord  Eldon  ;  per  Patteson,  J., 
458  ;  per  Erie,  C.J.,  512. 

58.  When  the  contract  is  in  writing,  it  is  governed  by  the  same  rules  to  which  it 

would  have  been  subject  if  the  statute  had  never  been  passed  ;  the  effect  being 
the  same  as  if  contracts  in  writing  had  been  in  terms  excluded  from  the  oper- 
ation of  the  statute.    Per  Erie,  J.,  454. 

59.  When  the  statute  is  sought  to  be  satisfied  by  means  of  a  memorandum  in  writing 

of  a  verbal  contract,  various  questions  may  arise  as  to  the  sufficiency  of  such 
memorandum,  which  have  no  application  to  contracts  in  writing. 

60.  Hence,  in  many  cases,  the  first  inquiry  is,  to  which  of  the  foregoing  classes  a 

given  contract  belongs.  If  the  contract  was  created  by  the  mutual  adoption  of 
a  writing  by  the  parties,  it  is  a  contract  in  writing ;  but  if  it  was  originally 
created  without  writing,  it  will  remain  a  verbal  contract,  notwithstanding  the 
parties  afterwards  adopt  a  writing  as  containing  a  correct  statement  of  its 
terms.  The  parties  may  of  course  put  an  end  to  the  verbal  contract  at  their 
pleasure,  and  make  a  written  one  in  its  stead ;  but  so  long  as  the  original  con- 
tract remains  in  force,  no  writing  which  can  be  adopted  will  be  more  than 
evidence  of  its  terms.  Per  Patteson,  J.,  458-459.  As  a  contract,  whether 
verbal  or  written,  cannot  be  made  without  two  parties,  if  a  writing  has  been 
adopted  or  agreed  to  by  one  party  only,  it  cannot  be  a  contract ;  and  if  any 
contract  exists  in  such  a  case,  it  must  be  verbal.  It  seems,  too,  that  the  same 
person  cannot  represent  both  parties  in  making  a  contract ;  and  lience,  neither 
entries  or  memoranda  made  by  brokers  and  retained  in  their  own  possession, 
nor  bouglit  and  sold  notes  made  and  deUvered  by  them  to  the  parties  respect- 
ively (§§  87-94),  are  commonly  more  than  evidence  of  a  verbal  contract.  Per 
Erie,  J.,  453-454 ;  Pitts  v.  Beckett,  443  ;  Coddington  v.  Goddard,  614. 

61.  As  ordinary  executory  contracts  of  sale  consist  of  two  promises  or  undertakings, 

one  by  the  buyer,  the  other  by  the  seller,  either  of  which  may  be  the  subject 
of  an  action,  the  statute  is  satisfied  if  the  promise  or  undertaking  sued  on  be 
in  writing,  or  be  proved  by  competent  written  evidence  ;  and  the  writing  need 
make  no  reference  to  the  promise  or  undertaking  by  the  plaintiff  to  the  defend- 
ant, though  it  be  the  consideration  of  the  promise  or  undertaking  sued  on. 
Egerton  v.  Mathews,  342;  Allen  v.  Bennet,  350;  per  Patteson,  J.,  458; 
Clason  V.  Bailey,  541,  542-545;  Davis  v.  Shields,  658,  571-572;  Tisdale  v. 
Harris,  75 ;  Hoadly  v.  M'Laine,  405 ;  Ashcroft  v.  Morsin,  440 ;  Sari  v.  Bour- 
dillon,  472,  474-475.     And  this  rule  has  been  applied  to  writings  which  con- 

(tained  only  an  offer  by  the  defendant.  Sanborn  v.  Flagler,  604 ;  per  Martin, 
B.,  493.  Sed  quare  ;  and  see  p.  493,  jjer  Bramwell,_B. ;  Watts  v.  Ainsworth,  1 
H.  &  C.  83,  per  Wilde,  B.^ 

62.  When  the  contract  is  in  writing,  its  terms  must  be  ascertained  from  the  writing 

alone  (per  Patteson,  J.,  458) ;  but  when  the  statute  is  sought  to  be  satisfied  by 
a  memorandum  of  a  verbal  contract,  the  sufladency  of  tlie  memorandum  may 
depend  upon  whether  it  states  all  the  terms  of  the  contract  correctly  (§  71) ; 
and  for  the  purpose  of  determining  the  latter  question,  any  competent  evidence 
of  the  contract  is  admissible,  thougli  not  in  writing.  Per  Erie,  J.,  453-454,  512  ; 
M'Lean  v.  Nicoll,  487  ;  per  Willes,  J.,  519  ;  per  Hoar,  J.,  601-602.  Such  would 
seem  to  have  been  the  true  ground  for  admitting  the  parol  evidence  in  Pitts  v. 
Beckett,  443 ;  and  in  Coddington  v.  Goddard,  614,  618-620. 

63.  A  memorandum  in  writing  may  be  contained  in  separate  papers  ;  but  they  must 

all  be  signed  by  the  party  to  be  charged  or  his  agent,  or  such  as  be  not  so 
signed  must  be  connected,  either  physically  or  by  reference,  with  one  that  is. 


\ 


INDEX.  1033 

Saunrlerson  v.  Jackson,  340 ;  Allen  v.  Bennet,  350 ;  Jackson  v.  Lowe,  371 ; 
Ilinde  v.  Whitehouse,  102,  108-10'J ;  Kenwortiiy  v.' Soofield,  373;  Johnson  v. 
Dodgson,  413 ;  Salmon  Falls  Manufacturing  Co.  v.  Goddard,  583,  586-587, 
5'Jl  ;  Buxton  v.  Rust,  Law  Bep.  7  Kxch    1. 

64.  If  a  signed  and  an  unsigned  paper  be  physically  connected  at  the  time  of  the 

signature,  it  is  immaterial  that  they  afterwards  become  separated.  Per  Hol- 
royd,  J.,  375. 

65.  It  seems  not  to  be  sufficient  that  a  signed  and  ah  unsigned  paper  refer  to  the 

same  contract ;  the  signed  paper  must  refer  to  the  unsigned  one.  Per  Parke, 
B.,  418  ;  Jacob  v.  Kirk,  424. 

66.  When  a  memorandum  is  drawn  up  in  duplicate,  one  copy  being  signed  by  the 

buyer  and  tiie  other  by  the  seller,  it  seems  that  the  two  may  be  read  together, 
and  that  tliey  will  have  the  same  etiect  as  if  each  had  been  signed  by  both. 
Lerned  v.  AVannemucher,  5U9. 

67.  As  to  when  several  papers  read  together,  will  constitute  a  sufficient  memorandum 

to  satisfy  the  statute,  see  Cooper  v.  Smith,  355 ;  Bichards  v.  Porter,  383 ;  Good- 
man V.  Griffiths,  478,  480 ;  M'Lean  v.  NicoU,  487  ;  Wilkinson  v.  Evans,  528 ; 
Smitii  V.  Surman,  54,  58-59,  62-63 ;  Archer  v.  Baynes,  449. 

68.  The  memorandum  must  show  who  is  the  buyer  (Champion  v.  Pluramer,  343), 

who  is  the  seller  (Klinitz  w.  Surry,  345;  Vandenbergh  i'.  Spooner,  531),  tiie 
price  (Elmore  v.  Kingscote,  378;  Acebal  v.  Levy,  3U9),  and  all  the  material 
terms  and  conditions  of  the  contract.  M'Lean  v.  NicoU,  487  ;  Davis  v.  Shields, 
558,  559,  563,  572-574;  Salmon  Falls  Manufacturing  Co.  v.  Goddard,  583; 
Boardman  v.  Spooner,  610,  613-614.  It  must  also  show  wiiicli  of  two  persons 
named  in  it  is  buyer,  and  which  is  seller.  Bailey  v.  Ogden,  588,  n.  (1).  As 
to  when  parol  evidence  is  admissible  to  establish  this  last  point,  see  Newell  v. 
Radford,  534  ;  per  Nelson,  J.,  584-585;  per  Curtis,  J.,  587-591. 

69.  But  it  need  only  state  such  terms  as  are  expressly  agreed  on  ;  not  those  which 

are  implied.  Therefore,  if  no  price  be  expressly  agreed  on,  none  need  be 
stated.     Hoadly  v.  M'Laine,  405;  Ashcroft  v.  Morrin,  440. 

70.  When  goods  are  sold  with  a  warranty  of  quality,  it  has  been  held  that  a  memo- 

randum, to  charge  the  buyer,  must  state  the  warranty.  Peltier  v.  Collins,  548. 
But,  seinble,  this  ought  to  depend  upon  whether  the  warranty  is  a  condition. 
See  Benjamin  on  Sale,  680. 

71.  When  the  contract  is  verbal,  and  the  statute  is  sought  to  be  satisfied  by  a  mem- 

orandum of  its  terms,  the  sufficiency  of  the  memorandum  does  not  depend 
upon  what  appears  upon  its  face,  but  upon  its  conformity  with  the  actual 
terms  of  the  contract ;  and  this  can  only  be  ascertained  by  proving  what  the 
terms  of  the  contract  were.  Tiiis  principle  seems  to  have  been  frequently  lost 
sight  of.     See  Archer  v.  Baynes,  449;  §  62. 

72.  As  a  memorandum  of  a  verbal  contract  is  in  the  nature  of  an  admission  by  the 

party  to  be  charged,  it  may  be  made  at  any  time  during  the  existence  of  the 
contract,  provided  it  be  before  action  brought  (Bill  v.  Bament,  161,  163-164, 
per  Parke,  B. ;  Bailey  v.  Sweeting,  480  ;  Gibson  v.  Holland,  513,  519 ;  Williams 
V.  Bacon,  594,  596-597)  ;  and  it  is  equally  effectual  to  satisfy  the  statute, 
though  it  expressly  repudiate  the  contract  (Bailey  v.  Sweeting,  480) ;  and 
though  it  be  not  communicated  to  the  other  party  to  the  contract,  but  to  the 
defendant's  own  agent.  Gibson  v.  Holland,  513. 
78.  If  a  contract  be  within  the  statute,  any  modification  of  it  is  equally  within  the 
statute;  and  if  the  statute  be  complied  with  as  to  the  original  contract,  but 
not  as  to  the  modification,  the  modified  contract  will  be  invalid,  and  cannot  be 
enforced.  Stead  v.  Dawber,  418  (overruling  Cutfc.  Penn,  358);  Marshall  v. 
Lynn,  429.  But  the  modification  being  inoperative,  the  original  contract  may 
still  be  enforced,  if  the  plaintiff'  is  in  a  condition  to  perfornj  it  on  his  part. 
Moore  v.  Campbell,  465,  471-472 ;  Noble  v.  Ward,  520.     And  it  is  no  defence, 


1034  INDEX. 

that  the  defendant  offered  to  perform  the  contract  as  modified,  and  the  plaintiff 
refused  to  accept  performance  (contra,  Cummings  v.  Arnold,  575) ;  but  if  the 
contract  as  modified  lias  been  actually  performed,  and  performance  accepted, 
that  will  constitute  a  good  defence  by  way  of  accord  and  satisfaction.  Per 
Lord  EUenborough,  362  ;  per  Parke,  B.,  472.  In  Whittier  v.  Dana,  608,  it  seems 
that  the  plaintiff  was  not  entitled  to  recover  on  the  original  contract,  as  he 
showed  no  breach  of  it  by  the  defendant.  Performance  by  the  defendant  on 
or  before  December  20,  was  waived  by  the  plaintiff;  and  after  that  date  it 
was  too  late  for  the  plaintiff  to  demand  performance  by  the  defendant,  or  per- 
form on  his  own  part. 

74.  A  memorandum  may  be  written  and  signed  with  a  lead  pencil  (Merritt  v.  Clason, 

537,  540  ;  Clason  v.  Bailey,  541,  546-547)  ;  and  a  printed  signature  will  satisfy 
the  statute  if  there  is  suflficient  evidence  of  its  adoption  by  the  party  to  be 
charged  (Saunderson  v.  Jackson,  340;  Schneider  v.  Norris,  362) ;  and  the  sig- 
nature need  not  be  at  the  end  (unless,  as.  in  New  York,  the  statute  uses  the 
word  "subscribed,"  Davis  v.  Shields,  558) ;  it  being  sufficient  if  the  name  of  the 
party  to  be  charged  be  wi'itten  in  any  part  of  tlie  document  for  the  purpose  of 
giving  it  authenticity.  Johnson  v.  Dodgson,  413,  417-418;  Sari  v.  Bourdillon, 
472,  474  ;  per  Crompton,  J.,  504-505  ;  per  Keating,  J.,  508 ;  per  Kent,  C,  542. 
A  signature  by  initials  is  suflficient.  Phillimore  v.  Barry,  346 ;  per  Bigelow,  C. 
J.,  607.  And  when  a  purchase  or  sale  is  made  through  an  agent,  it  is  sufladent 
if  the  name  of  the  agent  alone  appear  in  the  memorandum.  Kenworthy  v. 
Scofield,  373;  per  Merrick,  J.,  598;  per  Bigelow,  C.J.,  607 

75.  An  agent  to  sign  a  memorandum  need  not  be  autiiorized  by  writing,  and  a  subse- 

quent ratification  is  equivalent  to  a  prior  appointment.  Per  Tindal,  C.J., 
400 ;  Soames  v.  Spencer,  368 ;  Maclean  v.  Dunn,  390.  And  when  an  agent 
is  authorized  to  make  a  contract,  he  has  authority  by  implication  to  make  a 
memorandum  of  it  to  satisfy  the  statute ;  and  he  may  do  this  at  any  time 
subsequent  to  the  making  of  the  contract  (per  Merrick,  J.,  597),  provided  his 
authority  has  not  been  revoked.  Farmer  v.  Robinson,  349,  n.  (1).  So  an  auc- 
tioneer, or  a  clerk  whom  he  may  employ  for  the  purpose,  is  by  implication  au- 
thorized by  every  person  to  whom  an  article  is  knocked  down,  to  sign  his  name 
to  a  memorandum.  Simon  v.  Metivier,  337  ;  Hinde  v.  Whitehouse,  102, 108, 110 ; 
Bird  V.  Boulter,  395.  But  this  authority  of  an  auctioneer  is  strictly  limited  to 
sales  made  by  him  at  auction.  Mews  v.  Carr,  475.  And,  as  an  agent  to  sign  a 
memorandum  must  be  some  third  person,  and  not  the  other  contracting  party 
(Wright  V.  Dannah,  348;  Sliarman  v.  Brandt,  Law  Rep.  6  Q.  B.  720),  it  has 
been  held  that  a  memorandum  signed  by  an  auctioneer,  as  agent  for  tlie 
buyer,  is  not  available  in  an  action  brought  in  the  name  of  the  auctioneer. 
Farebrotlier  v.  Simmons,  370.     But  see  Bird  v.  Boulter,  895,  397-398. 

76.  An  agent  to  sign  a  memorandum  cannot  delegate  his  authority,  unless  he  is  au- 

thorized to  do  so  ;  in  which  case  the  sub-agent  becomes  the  agent  of  the  prin- 
cipal. Henderson  v.  Barnewall,  384  (with  which  compare  Blackburn  on  Sale, 
114)  ;  Townend  v.  Drakeford,  441,  443  ;  Boardman  v.  Spooner,  610,  612. 

77.  It  seems  that  a  letter  from  an  agent  to  his  principal,  stating  the  terms  of  a  con- 

tract made  by  the  former  for  the  latter,  will  not,  under  ordinary  circum.stances, 
constitute  a  memorandum  to  satisfy  the  statute.     Accordingly,  in  Gibson  v. 
'  Holland,  513,  it  was  not  claimed  that  the  agent's  letters,  without  the  principal's 
answer,  would  have  satisfied  the  statute. 

78.  One  who  acts  for  the  seller  alone  in  making  a  contract,  may  become  the  agent  of 

the  buyer  to  sign  a  memorandum,  but  such  an  agency  must  be  clearly  proved  ; 
and  if  the  agent  simply  sign  his  own  name,  the  presumption  will  be  that  he 
did  it  only  as  agent  for  the  seller.  Graham  v.  Musson,  425 ;  Graham  v.  Fret- 
well,  433. 


INDEX.  1035 

Brokers'  Books. 

79.  Tliere  has  been  mucli  difference  of  opinion  in  England  as  to  tlie  effect  of  a 

memorandum  of  a  contract  entered  Lj'  a  broker  in  his  book. 

80.  Some  judges  have  been  of  opinion  that  such  a  memorandum  constitutes  the  con- 

tract itself,  i.e.,_,that  it  is  a  contract  in  writing.  Per  Lord  Elleuborough,  349  ; 
per  Abbott,  C.J.,  378 ;  per  Parke,  B.,  44.5  ;  per  Patteson,  J.,  4.59  ;  per  Lord 
Campbell,  464.  This  opinion  seems  to  have  been  fmnided  in  some  degree 
upon  the  fact  that  brokers  in  London  are  required  by  law  to  make  such  entries  ; 
and  without  the  aid  of  positive  law,  it  seems  impossible  that  a  memorandum 
made  by  a  single  person,  and  communicated  to  no  one,  should  constitute  a 
contract.  See  §60. 
8L  Others  have  held  that  entries  in  brokers'  books  are  not,  under  ordinary  circum- 
stances, even  admissible  evidence  of  the  terms  of  the  contract,  either  because, 
not  being  communicated  to  the  parties,  they  are  res  iniei-  alios  acta,  or  because 
the  contract  is  contained  in  the  bought  and  sold  notes,  which  thus  become  the 
sole  evidence  of  its  terms.  Per  Abbott,  C.J.,  383  ;  Hawes  v.  Forster,  410  ; 
per  Lord  Abinger,  489  ;  per  Lord  Denman,  442-443. 

82.  But  the  better  opinion  seems  to  be,  at  least  in  this  country,  that  an  entry  by  a 

broker  in  his  book  does  not  differ  at  all  from  any  other  memorandum  made  by 
him,  and  that  it  is  not  indispensable  to  its  efficacy  that  it  be  communicated  to 
either  of  the  parties,  if  the  broker's  authority  to  make  it  sufficiently  appear. 
Maclean  v.  Dunn,  390,  392 ;  per  Parke,  B.,  437-438,  439,  445  ;  Merritt  v.  Clason, 
537 ;  Clason  v.  Bailey,  541 ;  Davis  v.  Shields,  558  ;  Boardman  v.  Spooner,  610 ; 
Coddington  v.  Goddard,  614.  In  tliis  last  case,  it  is  difficult  to  discover  any 
authority  in  the  broker  to  act  for  the  defendant ;  but  the  decision  derives  sup- 
port from  some  observations  in  Blackburn  on  Sale,  83,  93-94.  See  Klinitz  v. 
Surry,  346,  n.  (1)  ;  Moore  v.  Campbell,  465,  470. 

83.  It  seems  always  to  have  been  assumed  in  England  that  a  memorandum  in  a 

broker's  book  must  be  signed  by  the  broker,  and  that  the  insertion  of  the 
names  of  the  buyer  and  seller  in  the  body  of  the  memorandum  will  not  con- 
stitute a  signing  within  the  statute.  Grant  v.  Fletcher,  377  ;  Goom  v.  Aflalo, 
379  ;  Henderson  v.  Barnewall,  384. 

84.  In  this  country  the  contrary  seems  to  have  been  assumed  with  equal  uniformity 

(per  Piatt,  J.,  540-541 ;  per  Kent,  C,  545-546 ;  Boardman  v.  Spooner,  610 ; 
per  Bigelow,  C.J.,  618),  except  where  the  statute  uses  the  word  "  subscribed  " 
instead  of  "  signed."    Davis  v.  Shields,  558. 

85.  In  favor  of  the  English  rule  it  may  be  said  that  such  a  memorandum,  until 

signed  by  the  broker,  is  incomplete  on  its  face  ;  i.e.,  it  purports  to  have  been 
made  by  some  third  person,  but  it  does  not  appear  by  whom ;  an  argument, 
however,  which  is  inapplicable  to  Coddington  v.  Goddard,  614. 

86.  In  other  respects,  the  American  view  seems  to  be  the  more  rational  of  the  two ; 

for  there  is  a  difficulty  in  saying  that  the  name  of  the  broker  at  the  end  of  a 
memorandum  represents  the  names  of  both  parties. 

Bought  and  sold  Notes. 

87.  It  has  frequenty  been  said  by  English  judges  that  brokers'  bought  and  sold  notes 

were  in  their  origin  merely  copies  of  the  entries  in  their  books  (per  Lord 
EUenborough,  349  ;  per  Abbott,  C.J.,  378 ;  per  Lord  Campbell,  464),  but  this  view 
is  not  adopted  by  Blackburn  (Blackb.  on  Sale,  86),  and  it  seems  unsatisfac- 
tory. Bought  and  sold  notes  are  not  of  the  same  tenor,  and  the  entry  in  the 
book,  being  made  on  behalf  of  buyer  and  seller  equally,  ought  to  be  different 
from  either. 

88.  In  truth,  bought  and  sold  notes  seem  not  to  have  originated  with  brokers,  nor  to 

be  peculiar  to  them.  They  appear  to  be  in  familiar  use  in  England,  between 
buyer  and  seller,  when  no  broker  intervenes,  the  seller  delivering  to  the  buyer 


1036  INDEX. 

a  sold  note,  and  the  buyer  delivering  to  the  seller  a  bought  note.  Marshall  v. 
Lynn,  429  ;  Tarling  v.  Baxter,  621 ;  Sparkes  v.  Marshall,  2  Bing.,  N.  C.  761  ; 
Zagury  v.  Furnell,  652;  Wilmshurst  y.  Bowker,  930,  932;  Buxton  w.  Rust, 
Law  Rep.  7  Excli.  1.  When  a  broker  intervenes,  he  does  for  the  parties 
respectively  what  each  would  otherwise  do  for  himself,  i.e.,  he  makes  out 
and  signs  a  sold  note  on  behalf  of  the  seller,  and  a  bought  note  on  behalf 
of  the  buyer.  The  only  peculiarity  is  in  the  mode  in  which  he  delivers  them, 
i.e.,  he  generally  (but  not  always.  Parton  v.  Crofts,  508  ;  Wallace  v.  Breeds, 
739)  delivers  each  note  to  the  party  on  whose  behalf  it  is  made,  and  who  is  to 
be  bound  by  it,  instead  of  delivering  it  to  the  other  party.  Per  Patteson,  J., 
458-459  ;  per  Lord  Campbell,  464.  But  perhaps  a  sufficient  explanation  for  this 
may  be  found  in  the  opinion  wliich  prevails  among  brokers  and  their  customers 
(an  opinion  which  in  many  cases  is  well  founded),  that  the  latter  are  not 
bound  by  a  note  made  by  their  broker  until  they  have  confirmed  it.  Heyman 
V.  Neale,  349;  Dickenson  v.  Lilwal,  366;  Goom  v.  Aflalo,  379,  380;  Hawes  v. 
Forster,  410, 412 ;  Blackburn  on  Sale,  115-119.  It  seems  a  reasonable  inference, 
therefore,  that  the  broker  sends  each  note  to  the  party  who  is  to  be  bound  by 
it  in  order  tliat  he  may  confirm  it  by  retaining  it  and  not  objecting  to  it. 

89.  When  bought  and  sold  notes  are  exchanged  by  the  parties  themselves,  there 

seems  to  be  no  doubt  that  the  two  notes  are  independent  of  each  other,  that 
each  is  complete  in  itself,  and  that  each  party  is  bound  by  the  note  which  he 
delivers  to  the  other  (Rowe  v.  Osborne,  367;  Zagury  u.  Furnell,  652);  and 
when  either  party  is  sued  by  the  other,  the  note  given  by  the  defendant  is 
alone  material,  unless  tlie  suit  involves  the  question  wliether  the  title  has 
passed  from  the  seller  to  the  buyer ;  i.e.,  whether  the  contract  is  executed.  §  90. 
In  Johnson  v.  Dodgson,  413,  the  buyer  was  held  to  be  bound  by  a  sold  note, 
signed  by  the  seller's  traveller,  but  that  was  because  the  body  of  the  note  was 
written  by  the  buyer,  and  hence  contained  his  name  in  liis  own  handwriting. 
In  Moore  v.  Campbell,  465,  there  was  properly  no  broker,  the  seller  acting  for 
himself,  and  the  buyer  being  represented  by  an  agent.  Per  Parke,  B.,  471. 
Accordingly,  the  seller  delivered  to  tlie  buyer's  agent  a  sold  note,  and  the 
latter  should  have  given  him  a  bought  note  ;  but  erroneously  supposing  him- 
self to  be  acting  as  a  broker  between  the  parties,  he  gave  tlie  seUer  a  sold  note, 
the  result  being  tliat  tliere  were  two  sold  notes  and  no  bought  note.  In  Gil- 
mour  V.  Supple,  624,  the  buyer  should  regularly  have  given  a  bought  note 
instead  of  signing  the  sold  note. 

90.  It  seems  that  tiie  foregoing  principles  ought  also  to  be  applied  to  bought  and 

sold  notes  when  a  broker  intervenes  ;  that  the  two  notes  should  be  treated  as 
separate  and  independent  of  each  other ;  that  the  broker  should  be  considered 
as  acting  for  the  seller  alone  in  making  out  tlie  sold  note,  and  for  the  buyer 
alone  in  making  out  the  bought  note  (Pitts  v.  Beckett,  443)  ;  that  the  sold  note 
ought  to  be  no  evidence  against  the  buyer,  nor  the  bought  note  against  the 
seller  ;  and  that,  while  both  notes  must  correspond  in  order  to  pass  title  (since 
for  that  purpose  thei-e  must  be  both  buyer  and  seller.  Townend  v.  Drakeford, 
441),  only  the  note  made  on  behalf  of  the  defendant  is  material  for  the  pur- 
pose of  maintaining  an  action  on  an  executory  contract. 

91.  Upon  authority,  little  more  can  be  said  to  be  clear  than  that  a  broker's  bought 

and  sold  notes  will  together  constitute  a  memorandum  to  satisfy  the  statute, 
provided  they  correspond  with  each  other  and  are  both  complete  (per  Abbott, 
C.J.,  378;  Goom  v.  Aflalo,  379;  Hawes  v.  Forster,  410)  ;  and  that,  upon  the 
production  and  proof  of  either,  the  other  will  be  presumed  to  correspond  with 
it  in  the  absence  of  any  evidence  to  the  contrary.  Hawes  v.  Forster,  410 ; 
Parton  v.  Crofts,  508. 

92.  It  has  been  repeatedly  held  that,  if  the  bought  and  sold  notes  differ  materially, 

neither  party  will  be  bound,  either  because  there  is  no  contract  between  them, 


INDEX.  1037" 

or  because  there  is  no  memorandum  to  satisfy  the  statute  ;  and  no  distinction 
has  been  taken  in  tliis  respect  between  executory  and  executed  contracts. 
Thornton  v.  Kenipster,  304;  per  Gibbs,  C.J.,  800,  n.  (1);  per  Abbott,  C.J., 
378 ;  Thornton  v.  Charles,  436 ;  Sievewright  r.  Archibald,  452, 458-460, 463-465 ; 
Suydam  r.  Chirk,  581.  In  Thornton  v.  Kempster,  304,  the  real  objection  to 
the  plaintif!"s  recovering  seems  to  have  been  that  the  note  made  on  behalf  of 
the  defendant  did  not  state  the  terms  of  the  contract  truly  ;  and  the  same 
observation  is  applicable  to  Sievewright  v.  Archibald,  452. 

93.  Strong  opinions  liave  been  expressed  to  the  effect  that  one  note  alone  will  satisfy 

the  statute  an  to  both  parties  ;  but  such  a  view  of  course  assumes  that  there  is 
no  real  diflf'ereuce  between  a  bought  note  and  a  sold  note.  Hawes  v.  Forster, 
410 ;  per  Erie,  J.,  457  ;  Parton  v.  Crofts,  508,  512-513;  §  96. 

94.  In  one  important  particular,  a  bought  or  sold  note  made  by  a  broker  seems  to 

differ  from  one  delivered  by  buyer  to  seller  directly,  or  vice  versa ;  namely, 
that  while  the  former  can  seldom  or  never  be  more  than  a  memorandum  of  a 
verbal  contract  (§  00),  the  latter  may  be  and  commonly  is  a  contract  in 
writing. 

Invoices  or  Bills  of  Parcels. 

95.  A  bill  of  parcels  is  a  sufficient  memorandum  to  bind  the  seller  (Saunderson  v. 

Jackson,  340;  Schneiiler  v.  Norris,  362),  by  whom  or  by  who.se  authority  it 
was  made  out  (Hawjiins  v.  Chace,  554) ;  but  it  will  not  bind  the  buyer,  unless 
it  was  made  out  by  some  otlicr  person  than  the  seller  (§  75),  and  unless  it 
appear  that  the  buyer's  name  was  inserted  in  it  by  his  authority,  and  tor  the 
purpose  of  binding  the  bargain  as  to  him.  Durrell  v.  Evans,  494  ;  Simmonds 
V.  Humble,  272 ;  Johnson  v.  Dodgson,  413. 

96.  The  form  of  a  bill  of  parcels  presents  an  objection  to  it  as  a  memorandum  to 

bind  the  seller,  for  it  does  not  state  that  the  seller  has  sold,  but  that  the  buyer 
has  bought.  §  93.  If  indeed,  the  sale  is  an  executed  one,  the  former  necessarily 
follows  from  the  latter ;  but  if  it  is  executory,  one  may  agree  to  buy  without 
the  other's  agreeing  to  sell.  No  such  distinction,  however,  seems  to  have 
been  taken.    Per  Erie,  C.J.,  512;  per  Parke,  B.,  416 ;  Gilmour  v.  Supple,  624. 

See  Statute  of  Frauds. 

PART   PAYMENT. 

97.  An  agreement  to  set  off  a  smaller  debt  against  a  larger,  will  not  constitute  part 

payment  of  the  larger  debt,  within  the  meaning  of  the  statute  of  frauds,  un- 
less or  until  the  smaller  debt  is  actually  extinguished.     Walker  v.  Nussey, 
326 ;  Artcher  v.  Zeh,  330.     See  Talver  v.  West,  116. 
See  Statute  of  Frauds. 

PRICE. 

98.  Lord  Tenterden's  act,  9  Geo.  IV.  c.  14,  §  7  (p.  15,  n.  1),  has  had  the  effect  of 

substituting  the  word  "  value  "  for  the  word  "  price,"  in  §  17  of  the  Statute 
of  Frauds.     Harman  v.  Reeve,  90,  93;  per  Tindal,  C.J.,  407. 

RECEIPT.     See  §§  14-21. 

SALES. 
See  Executory  and  Executed  Sales  ;   Work,  Laror,  and  Materials. 

SHARES. 
See  Goods,  Wares,  and  Merchandises, 
vol.  I.  67 


1038  INDEX. 

STATUTE    or    FRAUDS. 

99.  It  was  the  design  of  the  17th  section  of  the  Statute  of  Frauds  to  render  inTalid 
the  contracts  therein  described,  unless  they  were  proved  by  evidence  in 
writing,  or  unless  the  contract  or  some  part  thereof  had  been  performed, 
either  by  the  buyer  or  by  the  seller. 

100.  Hence,  in  the  absence  of  evidence  in  writing,  the  statute  can  only  be  satisfied 

by  proof  that  the  goods  or  some  part  thereof  have  been  accepted  and  actually 
received  by  the  buyer  (which  shows  performance  by  the  seller),  or  that  the 
purchase-money  or  some  part  thereof  has  been  paid  (which  shows  performance 
by  the  buyer).     See  p.  272,  per  Blackburn,  J. 

101.  As  neither  acceptance  and  actual  receipt  nor  payment  has  any  tendency  to  show 

what  the  contract  was,  it  follows  that,  when  the  statute  is  satisfied  in  either 
of  those  modes,  the  terms  of  the  contract  must  be  proved  by  parol  evidence. 

102.  And  if  one  party  has  received  goods  from  the  other,  which  he  retains,  or  has 

paid  money  to  the  other,  it  i.s  for  the  jury  to  say  whether  or  not  such  acts 
were  done  in  performance  of  a  contract  of  sale  between  the  parties,  and  if 
they  were,  what  were  the  terms  of  such  contract.  Tomkinson  v.  Staight, 
223. 

103.  It  requires  the  concurrence  of  both  parties  to  satisfy  the  statute  as  to  either  by 

an  acceptance  and  actual  receipt  (Taylor  v.  Wakefield,  234  ;  Smith  v.  Hud- 
son, 275 ;  contra,  per  Abbott,  C.J.,  123),  or  part-payment  (£23,  n.  (1)  ;  Edger- 
ton  V.  Hodge,  333) ;  but  either  party  alone  can"  satisfy  the  statute  by  a 
memorandum  in  writing  so  as  to  bind  himself.     See  §  61. 

104.  The  statute  may  be  satisfied  after  the  making  of  the  verbal  agreement,  either 

by  acceptance  and  actual  receipt,  part  payment,  or  a  memorandum  in  writing; 
and  then,  it  seems,  the  contract  will  for  most  purposes  be  made  good  by 
relation  from  the  date  of  the  verbal  agreement.  See  Vincent  v.  Germond, 
284  ;  Bailey  v.  Sweeting,  480 ;  per  Willes,  J.,  519 ;  Seymour  v.  Davis,  299 ; 
McKnight  v.  Dunlop,  308 ;  Marsh  v.  Hyde,  313  ;  and  compare  §§  57-60,  72. 
But  such  relation  will  not  be  permitted  to  affect  the  rights  of  strangers.  Felt- 
house  V.  Bindley,  11  C.  B.  (x.  s.),  869.  And  it  is  agreed  that  the  statute 
must  be  satisfied  before  action  brought.  Bill  v.  Bament,  161,  163-164,  per 
Parke,  B.  ;  Tisdale  v.  Harris,  75,  79. 

105.  If  a  chattel  be  sold  and  delivered  upon  condition  that  it  shall  be  returned  to 

the  seller  at  a  fixed  price,  in  a  certain  event,  and  the  buyer  agrees  so  to 
return  it,  it  has  been  held  that  such  agreement  is  not  for  a  resale  of  the 
chattel,  and  so  not  within  the  Statute  of  Frauds.  Williams  v.  Burgess,  151. 
Sed  giuere. 

106.  If  a  contract  be  partly  for  the  sale  of  goods  of  the  value  of  10/.  or  upwards,  and 

partly  for  the  agistment  of  cattle,  the  former  part  will  be  invalid,  although 
the  latter  part  is  not  within  the  statute.     Harman  v.  Reeve,  90. 

See  Acceptance  and  Actual  Receipt  ;  Entikety  of  Contract  ;  Execittort 
Sales  ;  Goods,  Wares,  and  Merchandises  ;  Memorandum  in  Writing  ; 
Part  Payment  ;  Work,  Labor,  and  Materials. 

STOCK. 
See  Goods,  Wares,  and  Merchandises. 

VALUE. 
See  Price. 

WORK,  LABOR,  AND  MATERIALS. 

107.  If  a  farrier  be  employed  professionally,  using  his  own  medicines,  there  is  no 

sale  of  the  medicines,  but  the  contract  is  for  work,  labor,  and  materials ; 


INDEX.  1039 

hence,  no  part  of  it  is  witliin  the  Statute  of  Frauds.  Clark  v.  Mumford,  8. 
So,  if  a  macliinist  lie  employed  by  an  inventor  to  make  experiments,  the 
former  furnishing  tlie  materials  for  such  experiments.  Grafton  v.  Amiitage, 
11.  And  the  same  principle  has  been  applied  to  a  contract  for  printing  a  book, 
the  printer  furnishing  the  paper  (Clay  i-.  Yates,  15)  ;  sed  qwere  if  there  is  not 
in  that  case  a  sale  of  the  paper.     Compare  Lee  v.  Griffin,  20. 

108.  When  an  artisan  is  employed  to  make  a  chattel  of  a  given  deTscription  with  his 

own  materials,  the  contract  is  for  the  sale,  not  of  the  materials,  but  of  the 
completed  chattel;  hence  it  is  within  the  Statute  of  Frauds.  Atkinson  v. 
Bell,  801,  804-805.  And  this  principle  has  been  applied  to  the  case  of  the  em- 
ployment of  a  dentist  to  make  a  set  of  artificial  teeth  for  a  patient,  the 
dentist  furnishing  all  the  materials.  Lee  v.  Griffin,  20.  And  see,  per  Little- 
dale,  J.,  61-62. 

109.  If  an  attorney  be  employed  to  prepare  a  deed,  or  an  artist  to  paint  a  portrait, 

it  seems  that  the  contract  in  each  case  will  be  for  work  and  labor  simply, 
although  the  paper  or  parchment  is  furnished  by  the  attorney,  and  the  canvas 
by  the  artist;  and  although  the  employer  eventually  becomes  the  owner, 
in  the  one  case  of  the  paper  or  parehment,  and  in  the  other  of  the  canvas,  it 
seems  that  he  acquires  them  by  gift  and  not  by  purchase.  Compare  dicta  in 
Grafton  v.  Armitage,  11  ;  Clay  v.  Yates,  15 ;  and  Lee  v.  Griffin,  20. 

See  Executory  Sales;  Executory  and  Executed  Sales. 


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